State v. Campbell

• Decision Date: 17 May 1984
• Docket Number: 56306,Nos. 55783,s. 55783
• Parties: STATE of Kansas, Appellee, v. Emery CAMPBELL, Appellant.
• Court: Kansas Court of Appeals

Page 679

681 P.2d 679

9 Kan.App.2d 474

STATE of Kansas, Appellee, v. Emery CAMPBELL, Appellant.

Nos. 55783, 56306.

Court of Appeals of Kansas.

May 17, 1984.

Syllabus by the Court

1. K.S.A. 8-1567, as amended, which proscribes operating a vehicle while "under the influence of alcohol," is not void for vagueness.

2. Former K.S.A. 8-1567 did not violate the Equal Protection clause of the Fourteenth Amendment simply because it provided enhanced penalties for those with prior DUI convictions in Kansas but not for those whose prior convictions occurred under foreign state laws.

3. The provisions of K.S.A. 8-1567, as amended, which provide for mandatory increased penalties for repeat offenders, do not make the statute an ex post facto law even though a defendant's prior convictions were for violations of statutes or ordinances which contained no similar provisions.

4. In consolidated appeals from two DUI convictions it is held: (a) the statutes under which defendant was convicted did not deprive defendant of due process or the equal protection of the law in any of the particulars alleged; and (b) the trial court did not abuse its discretion in overruling a challenge for cause of one juror.

John A. McKinnon, Topeka, for appellant.

Samuel L. Schuetz, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before FOTH, C.J., and PARKS and BRISCOE, JJ.

FOTH, Chief Judge:

Emery Campbell was convicted of driving under the influence of alcohol and transporting an open container of liquor in April, 1983. In August he was again convicted of DUI. In each case he was sentenced as a third offender under K.S.A. (now 1983 Supp.) 8-1567(e ). His appeals in each case were consolidated for decision.

In each case he challenges 8-1567(a ) as being void for vagueness. He argues that the average person cannot know what conduct is proscribed by the statutory language prohibiting the operation of a vehicle by a person "under the influence of alcohol."

We are unaware of any Kansas case in which this precise challenge to the statute has been made. In State v. Reeves, 233 Kan. 702, 664 P.2d 862 (1983), the court considered an instruction which amplified the statutory language by requiring the State to prove that the defendant was not only "under the influence of alcohol" but that "the control of his mental or physical function was thereby impaired to the extent that he was incapable of safely driving a vehicle." The court found that the additional language properly reflected the legislative intent, but disapproved its inclusion as an element of the offense. Rather, the court said, the amplification should be given to the jury as a definition of the statutory element of driving while "under the influence of alcohol."

While the court in Reeves approved the concept of a further definition for the benefit of a jury, it did not suggest that the statutory language was unintelligible or that the average person in our society would not know what conduct amounted to driving under the influence of alcohol. While this question has not yet been addressed in Kansas, several of our sister jurisdictions ruled long ago that the phrase "driving under the influence" is not unconstitutionally vague. In so ruling, the Minnesota Supreme Court in 1929 noted that the expression "under the influence of intoxicating liquor" was in common, everyday use by the people and was older than the statute. Then the court went on to say:

"When a person is so affected by intoxicating liquor as not to possess that clearness of intellect and control of himself that he otherwise would have, he is under the influence of intoxicating liquor. That would appear to be the common understanding of the expression, and well known. In that light the use of the expression in the statute renders the law neither obscure nor uncertain." State v. Graham, 176 Minn. 164, 169, 222 N.W. 909 (1929).

For similar holdings see Weston v. State of Arizona, 49 Ariz. 183, 186-88, 65 P.2d 652 (1937); State ex rel. Sellers v. Parker, 87 Fla. 181, 190-91, 100 So. 260 (1924). See also 7A Am.Jur.2d, Automobiles & Highway Traffic § 297.

We think the phrase has been equally accepted in this state, is commonly understood, and that its use does not render the statute void for vagueness.

Defendant also challenges the "third offender" provisions of former K.S.A. 8-1567(e ) because at the time of his first offense 8-1567(i ) counted as prior convictions all those occurring within this state, and arguably those involving ordinances of foreign cities, but not convictions for violations of foreign state DUI laws. He argues a denial of equal protection because he, with all his priors in Kansas, is punished as a third offender while another, with priors incurred elsewhere, would be treated as a first offender.

This position is meritless, because a state may validly draw distinctions between persons differently situated. A person who has been convicted of DUI in Kansas is not in the same situation as one who has been convicted of DUI in another state. Each state has its own unique body of substantive and procedural law. It is entirely possible that no two states are alike in this area. Although exempting convictions in other states may have been an oversight, which has since been remedied, it was within the legislature's discretion to exempt out-of-state convictions if it desired to do so.

We note in this connection State v. Wood, 231 Kan. 699, 647 P.2d 1327 (1982), which considered the use of municipal and foreign convictions under the Habitual Traffic Violators Act, K.S.A. 8-284 et seq. The court there noted that of the eight different criminal violations dealt with in the statute, only one referred to ordinance violations. The court found this to have been a deliberate legislative choice, and had no difficulty in construing the act and approving it in general, despite the classes of repeat offenders thus created.

The power to enact laws to promote the public health, safety, morals, and welfare is a broad power vested in the several state legislatures. This power includes the power to define crimes. State v. Thompson, 221 Kan. 165, 173, 558 P.2d 1079 (1976). It also includes the power to set punishments. See 16A C.J.S., Constitutional Law § 487. We cannot find that it was beyond the legislature's power to treat as first offenders those whose only DUI convictions were out of state but as repeat offenders those whose previous offenses endangered the citizens of this state. The prior statute did not offend the Equal Protection clause of the Fourteenth Amendment.

Defendant also argues that because his prior convictions...