City of Wichita v. Hackett, No. 88,325

CourtUnited States State Supreme Court of Kansas
Writing for the CourtNUSS, J.
Citation275 Kan. 848,69 P.3d 621
Docket NumberNo. 88,325
Decision Date30 May 2003
PartiesTHE CITY OF WICHITA, Appellee, v. ROBERT L. HACKETT, Appellant.

275 Kan. 848
69 P.3d 621

THE CITY OF WICHITA, Appellee,
v.
ROBERT L. HACKETT, Appellant

No. 88,325

Supreme Court of Kansas

Opinion filed May 30, 2003.


275 Kan. 849
Gary W. Owens, of Law Office of Roger L. Falk, & Associates, P.A., of Wichita, argued the cause and was on the brief for appellant

Sharon L. Dickgrafe, assistant city attorney, argued the cause, and Gary E. Rebenstorf, city attorney, was with her on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.

A Sedgwick County District Court convicted Robert L. Hackett of one count of driving under the influence (DUI) in violation of Section 11.38.150 of the Code of the City of Wichita (City). At the time of the violation, he was riding a bicycle. After Hackett's appeal to the Court of Appeals, we transferred the case on our own motion pursuant to K.S.A. 20-3018(c). The issues on appeal, and this court's accompanying holdings, are as follows:

1. Is it permissible for cities to adopt ordinances prohibiting the operation of bicycles while under the influence of alcohol? Yes.

2. Does a conviction for DUI as defined under the City ordinance qualify as a conviction under K.S.A. 8-1567? No.

3. Is the City's DUI ordinance unconstitutionally vague? No. Accordingly, the district court is affirmed.

FACTS:

On March 3, 2000, at approximately 9 p.m., Wichita Police Officer Keith Fort, a member of the city's DUI task force, responded to his dispatcher's report of an accident involving an automobile and a bicycle. Upon arrival at the scene, Officer Fort discovered there had been no collision. Hackett had simply fallen from his bicycle when crossing the intersection of Maple and Tracy and had suffered minor injuries. After EMS attended to Hackett's injuries, Fort approached him to investigate the accident.

During questioning, Officer Fort noticed Hackett smelled of alcohol, had bloodshot eyes, and slurred his words when describing his accident. Fort therefore asked Hackett to perform several field sobriety tests. After Hackett had failed three tests, Fort placed him under arrest for operating his bicycle while under the influence of alcohol, contrary to Wichita City Ordinance 11.38.150, and failure

275 Kan. 850
to license his bicycle, contrary to Wichita City Ordinance 11.48.020. Later, Hackett submitted to a breath test at the Sedgwick County Jail. It disclosed a blood alcohol content of.204%, approximately two and one-half times the limit allowed by the city's ordinance

On August 9, 2001, the Wichita Municipal Court found Hackett guilty of DUI. Hackett timely appealed to the Sedgwick County District Court where, following a bench trial, he was convicted of one count of DUI.

ANALYSIS:

Issue 1: Is it permissible for cities to adopt ordinances prohibiting the operation of bicycles while under the influence of alcohol?

According to Hackett's interpretation of the statutes, the City was prohibited from proscribing his operation of a bicycle while under the influence of alcohol. He claims that since K.S.A. 8-1485 defines "vehicles," the City is prohibited from expanding this definition to include bicycles. Our review of this issue is unlimited, since interpretation of statutes and ordinances is a question of law. State v. Engles, 270 Kan. 530, 532-33, 17 P.3d 355 (2001).

We first examine the relevant statutes and ordinances. The city ordinance under which Hackett was charged, 11.38.150, is virtually identical to K.S.A. 8-1567. Both proscribe the operation or attempted operation of "any vehicle" while "the alcohol concentration in the person's blood or breath, as measured within 2 hours of the time of operating or attempting to operate a vehicle, is .08 or more."

The chief difference between the Kansas statute and the city ordinance is their definition of "vehicle." K.S.A. 8-1485 defines "vehicle" as "every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks." (Emphasis added.) By contrast, City Ordinance 11.04.400 expansively defines a "vehicle" as "every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary

275 Kan. 851
tionary rails or tracks." In short, it does not exclude devices moved by human power

The City's authority to expand the State's definition of vehicle ostensibly derives from K.S.A. 8-2001, which provides:

"The provisions of this act [Uniform Act Regulating Traffic; Powers of State and Local Authorities] shall be applicable and uniform throughout this state and in all cities and other political subdivisions therein, and no local authority shall enact or enforce any ordinance in conflict with the provisions of this act unless expressly authorized; however, local authorities may adopt additional traffic regulations which are not in conflict with the provisions of this act." (Emphasis added.)

Since the City has clearly adopted additional traffic regulations, the question becomes whether City Ordinances 11.38.150 and 11.04.400 "conflict" with K.S.A. 8-1567 and K.S.A. 8-1485. City of Junction City v. Lee, 216 Kan. 495, 501, 532 P.2d 1292 (1975), provides guidance on this issue:

"A test frequently used to determine whether conflict in terms exists is whether the ordinance permits or licenses that which the statute forbids or prohibits that which the statute authorizes; if so, there is conflict, but where both an ordinance and the statute are prohibitory and the only difference is that the ordinance goes further in its prohibition but not counter to the prohibition in the statute, and the city does not attempt to authorize by the ordinance that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict. [Citation omitted.]" (Emphasis added.)

K.S.A. 8-1567 and K.S.A. 8-1485 do not "expressly authorize" the operation of bicycles by those under the influence of alcohol. They merely fail to proscribe it. Consequently, no conflict exists between city ordinances and state statutes. The city...

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25 practice notes
  • State v. Harris, No. 116,515
    • United States
    • United States State Supreme Court of Kansas
    • July 17, 2020
    ...to protect against arbitrary and discriminatory enforcement.’ " 298 Kan. at 549, 316 P.3d 707 (quoting City of Wichita v. Hackett , 275 Kan. 848, 856, 69 P.3d 621 [2003] ).In reaching this conclusion, we considered the difficulty facing those charged with enforcing this noise ordinance. How......
  • In re Comfort, No. 97,287.
    • United States
    • United States State Supreme Court of Kansas
    • June 8, 2007
    ...valid, unless its infringement of the superior law is clear beyond reasonable doubt, it should be upheld. City of Wichita v. Hackett, 275 Kan. 848, 853, 69 P.3d 621 (2003); State v. Whitesell, 270 Kan. 259, Syl. ¶ 1, 13 P.3d 887 Vagueness We use a two-part test to determine whether a statut......
  • City of Wichita v. Trotter, No. 121,125
    • United States
    • Court of Appeals of Kansas
    • September 25, 2020
    ...an ordinance violates the Constitution presents a question of law over which we exercise plenary review. See City of Wichita v. Hackett , 275 Kan. 848, 853, 69 P.3d 621 (2003) ; Huffman v. City of Maize , 54 Kan. App. 2d 693, 697, 404 P.3d 345 (2017).Before addressing the merits of Trotter'......
  • State v. Mejia, No. 121,475
    • United States
    • Court of Appeals of Kansas
    • May 22, 2020
    ...with three exceptions including "devices moved by human power." A bicycle comes within that exception. See City of Wichita v. Hackett , 275 Kan. 848, Syl. ¶ 4, 69 P.3d 621 (2003). In short, drunk bicyclists can be convicted under Mo. Rev. Stat. § 577.010 but not under K.S.A. 8-1567. And bas......
  • Request a trial to view additional results
25 cases
  • State v. Harris, No. 116,515
    • United States
    • United States State Supreme Court of Kansas
    • July 17, 2020
    ...to protect against arbitrary and discriminatory enforcement.’ " 298 Kan. at 549, 316 P.3d 707 (quoting City of Wichita v. Hackett , 275 Kan. 848, 856, 69 P.3d 621 [2003] ).In reaching this conclusion, we considered the difficulty facing those charged with enforcing this noise ordinance. How......
  • In re Comfort, No. 97,287.
    • United States
    • United States State Supreme Court of Kansas
    • June 8, 2007
    ...valid, unless its infringement of the superior law is clear beyond reasonable doubt, it should be upheld. City of Wichita v. Hackett, 275 Kan. 848, 853, 69 P.3d 621 (2003); State v. Whitesell, 270 Kan. 259, Syl. ¶ 1, 13 P.3d 887 Vagueness We use a two-part test to determine whether a statut......
  • City of Wichita v. Trotter, No. 121,125
    • United States
    • Court of Appeals of Kansas
    • September 25, 2020
    ...an ordinance violates the Constitution presents a question of law over which we exercise plenary review. See City of Wichita v. Hackett , 275 Kan. 848, 853, 69 P.3d 621 (2003) ; Huffman v. City of Maize , 54 Kan. App. 2d 693, 697, 404 P.3d 345 (2017).Before addressing the merits of Trotter'......
  • State v. Mejia, No. 121,475
    • United States
    • Court of Appeals of Kansas
    • May 22, 2020
    ...with three exceptions including "devices moved by human power." A bicycle comes within that exception. See City of Wichita v. Hackett , 275 Kan. 848, Syl. ¶ 4, 69 P.3d 621 (2003). In short, drunk bicyclists can be convicted under Mo. Rev. Stat. § 577.010 but not under K.S.A. 8-1567. And bas......
  • Request a trial to view additional results

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