City of Wichita v. Hackett, 88,325

• Decision Date: 30 May 2003
• Docket Number: No. 88,325,88,325
• Citation: 275 Kan. 848,69 P.3d 621
• Parties: THE CITY OF WICHITA, Appellee, v. ROBERT L. HACKETT, Appellant.
• Court: Kansas Supreme Court

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.

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 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 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 ordinance is valid.

City of Junction City v. Lee, 216 Kan. 495, is on point. There, like the instant case, we observed that the language of the city ordinance—which concerned the unlawful use of weapons—was identical to the State criminal statute's, with two exceptions. The city ordinance prohibited a person from merely carrying specifically-listed dangerous weapons, while the state statute made carrying the same weapons a crime only when concealed or carried with the intent to use unlawfully against another. We held that no conflict existed between the statute and ordinance because one did not forbid what the other permitted; rather, the ordinance was merely more restrictive than the statute. 216 Kan. at 499-502.

Similarly, in Clemons v. Wilson, 151 Kan. 250, 98 P.2d 423 (1940), the issue was whether a city ordinance making it illegal to possess gambling devices was in conflict with a state statute declaring it merely to be a nuisance to set up gambling devices. In determining that no conflict existed, we stated: "The fact that the legislature made places where gambling devices are set up nuisances did not prohibit the cities from going further and making their possession an offense. The statute just did not go as far as the ordinance did, that is all." 151 Kan. at 256; see Blevins v. Hiebert, 247 Kan. 1, 795 P.2d 325 (1990), and the numerous cases discussed therein at pages 5 through 8 which contain such an analysis with similar results.

In summary, the City of Wichita has the authority to prohibit the operation of bicycles while under the influence of alcohol.

Issue 2: Does a conviction for DUI as defined under the city ordinance qualify as conviction under K.S.A. 8-1567?

Hackett's conviction under the city ordinance raises the question whether it also qualifies as a conviction under the Kansas DUI statute, K.S.A. 8-1567. Our interpretation of the statute is a question of law. Engles, 270 Kan. at 532-33.

K.S.A. 8-1567(l) provides:

"For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section:

(1) `Conviction' includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;

(2) `conviction' includes being convicted of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution." (Emphasis added.)

In a similar fashion, K.S.A. 8-1567(m) provides:

"Upon conviction of a person of a violation of this section or a violation of a city ordinance or county resolution prohibiting the acts prohibited by this section, the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person's driving privileges as provided by K.S.A. 8-1014, and amendments thereto." (Emphasis added.)

These statutes disclose that the legislature intended to limit the consequences of a DUI conviction to those acts proscribed by state law. Operating a bicycle while under the influence, though a violation of the city code, is not a DUI under K.S.A. 8-1567. Such a conviction therefore does not count for state sentencing purposes concerning the instant offense or subsequent offenses.

Issue 3: Is the City's DUI ordinance unconstitutionally vague?

Finally, Hackett argues that the city's DUI ordinance is unconstitutionally vague. When reviewing the...