State v. Bowie

• Citation: 999 P.2d 947,268 Kan. 794
• Decision Date: 10 March 2000
• Docket Number: No. 115., No. 929, No. 048, No. 82, No. 114, No. 049, No. 83
• Parties: STATE OF KANSAS, Appellant, v. VICTOR L. BOWIE, Appellee.
• Court: United States State Supreme Court of Kansas

268 Kan. 794

999 P.2d 947

STATE OF KANSAS, Appellant, v. VICTOR L. BOWIE, Appellee.

Nos. 82,929, 83,048, 83,049, 83,114, 83,115.

Supreme Court of Kansas.

Opinion filed March 10, 2000.

Katherine Von Kliem, assistant district attorney, argued the cause, and Joan M. Hamilton, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellant.

Robert D. Eskildsen, Jr., assistant public defender, argued the cause and was on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

The State appeals the Shawnee District Court's dismissal of the charge of driving while license suspended, in violation of K.S.A. 1998 Supp. 8-262(a). This appeal involves five cases from Shawnee County docketed as State v. Victor L. Bowie, No. 82,929; State v. Rey O. Martinez, No. 83,048; State v. Garth B. Ortiz, No. 83,049; State v. Woodie C. Morgan, Jr., No. 83,114; and State v. Victor L. Bowie, No. 83,115. This court ordered the cases consolidated for determination under case No. 82,929. We have jurisdiction pursuant to K.S.A. 1999 Supp. 22-3602(b)(1). Victor Bowie is the only defendant/appellee who filed a brief. The district court dismissed felony charges against Bowie of driving while his license was suspended. The question we must resolve is whether a person who has not been licensed to drive can be found guilty of driving while suspended rather than of driving without a valid driver's license.

Bowie has never been licensed, or otherwise authorized, to drive a motor vehicle. Before the charges in the present case were filed, he had entered pleas of no contest to charges of driving while suspended on three occasions—once in Shawnee District Court and twice in Topeka Municipal Court. In this case, he filed a motion to dismiss the charge, and it was granted by the district court. The district judge did not believe that the language of K.S.A. 1998 Supp. 8-262(a) would support the charge of driving while suspended against a person who never had a license. Moreover, in the district judge's opinion, K.S.A. 1998 Supp. 8-235, which prohibits driving without a valid driver's license, is the statute applicable to Bowie's conduct.

In the cases against the other defendants, the charge of driving while suspended was dismissed by the district court "pursuant to the Court's prior Memorandum Decision and order in State v. Victor Bowie, Case #98-CR-2566."

Bowie was charged under K.S.A. 1998 Supp. 8-262(a), which provides, in pertinent part: "Any person who drives a motor vehicle on any highway of this state at a time when such person's privilege so to do is canceled, suspended or revoked shall be guilty of a ... severity level 9, nonperson felony on a third or subsequent conviction." He persuaded the district court that he could not be prosecuted under 8-262(a) because he had no driver's license and hence no privilege to drive that had been canceled, suspended, or revoked. The statute the district court believed was applicable in the circumstances is K.S.A. 1998 Supp. 8-235(a), which provides: "No person, except those expressly exempted, shall drive any motor vehicle upon a highway in this state unless such person has a valid driver's license." Violation of 8-235(a) is a misdemeanor.

The fundamental rule of statutory construction to be applied by the court is that the intent of the legislature governs when it can be ascertained. The legislative intention is to be determined from consideration of the entire act rather than disconnected provisions, and, if possible, effect must be given to the entire act and every part of it. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. See State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998).

With regard to the statutory scheme governing operation of motor vehicles, the State first calls to the court's attention the following definition of "license to operate a motor vehicle" in K.S.A. 8-1430:

"`License' or `license to operate a motor vehicle' means any driver's license or any other license or permit to operate a motor vehicle issued under, or granted by, the laws of this state, including:

(a) Any temporary license, or instruction permit;

(b) the privilege of any person to drive a motor vehicle whether or not such person holds a valid license; and

(c) any nonresident's operating privilege."

As phrased by the State in its brief, the clear meaning of subsection (b) of 8-1430 is that unlicensed drivers, such as Bowie, who willfully ignore the driver's license requirement and continue to drive "are assuming the benefits of the privilege." The State likens this statutory concept to a constructive privilege. In arguing that there can be no subsection (b) privilege without the State's creating it, Bowie focuses on the prefatory language, "issued under, or granted by, the laws of this state." The State's rejoinder is that a constructive privilege is a fiction created by the operation of law.

K.S.A. 1998 Supp. 8-262(a) prohibits a person from driving a motor vehicle on a highway of this state "at a time when such person's privilege so to do is canceled, suspended or revoked." (Emphasis added.) The State's position is that consideration of the statutory scheme rather than of 8-262(a) in isolation will show that the legislature did not intend for a person's privilege to drive to depend on his or her having a driver's license. K.S.A. 1998 Supp. 8-255(a) authorizes the division of vehicles "to suspend or revoke a person's driving privileges" upon a showing of circumstances enumerated in subsections (1) through (5). (Emphasis added.) K.S.A. 1998 Supp. 8-255(b) requires the division to suspend a person's driving privileges when required by 8-262 or K.S.A. 1998 Supp. 8-1014. The latter statute governs suspension and restriction of driving privileges for refusing or failing a test or failing to complete a mandated treatment program. Subsection (f) of 8-1014 provides: "Upon restricting a person's driving privileges pursuant to this section, the division shall issue without charge a driver's license which shall indicate on the face of the license that restrictions have been imposed on the person's driving privileges...." It is clear from this provision and 8-1430 that the terms "privilege" and "license" are used by the legislature to denote different things—a license is a tangible representation of a person's driving privilege.

The State presented evidence in the district court of the procedure used by the Department of Revenue's Driver Control Bureau for keeping track of the driving histories of unlicensed drivers. The witness testified that when an unlicensed driver is charged with an offense that could lead to a suspension of driving privileges, a computer-generated number is assigned to him or her for record keeping and notice purposes. There is no statutory authorization for the Bureau's practice, and no recognition or statutory authority for the Bureau to create a constructive privilege by assigning a number to a driver.

Kansas courts have had few opportunities to consider how driver's licenses and driving privileges are related. In Schowengerdt v. Kansas Dept. of Revenue, 14 Kan. App.2d 147, 784 P.2d 387 (1989), the driver argued that his expired license could not be suspended. The district court affirmed the Department of Revenue's suspension of Schowengerdt's driving privileges. On appeal, the Court of Appeals affirmed. Following rules of statutory construction as stated in State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987), the Court of Appeals concluded:

"[I]f a license or privilege exists, it is subject to suspension, and it can be suspended for any period permitted by law. Once suspended, the suspension remains in effect for the full period ordered, regardless of whether the originally valid license might otherwise have expired at some point during the period of suspension. To hold otherwise would be counter to logic and would allow a driver to benefit from letting his driver's license expire. It is the privilege to drive that is suspended. The license itself merely represents that privilege." 14 Kan. App.2d at 149.

In State v. Mertz, 258 Kan. 745, 907 P.2d 847 (1995), this court held that the defendant was not subjected to double jeopardy when his license was suspended and a criminal charge was filed against him for one incident of driving while under the influence of alcohol. In considering whether the suspension constituted punishment, this court examined the suspension from an objective perspective rather than from the defendant's point of view. 258 Kan. at 756. From an objective viewpoint, a punitive purpose for the license suspension was imperceptible:

"Popp v. Motor Vehicle Department, 211 Kan. at 766, and Schowengerdt v. Kansas Dept. of Revenue, 14 Kan. App.2d at 149, found that driving is not a natural right, but a privilege. If a driver does not abide by the conditions of the privilege, the license is subject to suspension in order to protect public safety and welfare. A sanction which revokes a privilege is a remedial sanction, not a punitive sanction. We hold the sanction in this case is remedial for two reasons. One, it is remedial because it protects the public welfare. Two, it is remedial because the suspension revokes a privilege which is being abused." 258 Kan. at 761.

On this ground, the trial court's dismissal of the criminal charge against Mertz was reversed and the matter remanded for trial.

In Schowengerdt, the Court of Appeals discussed a line of Alaska cases because several of them had been cited by Schowengerdt. 14 Kan. App.2d at 148-49. Among the three Alaska cases discussed, Francis v. Municipality of Anchorage, 641 P.2d 226 (Alaska App. 1982), is the only one with some relevance to the present case. Francis did not have a valid driver's license, and the question he raised was substantially...