State v. Fisher, No. 115,277

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by Beier, J.
Citation423 P.3d 528
Docket NumberNo. 115,277
Decision Date10 August 2018
Parties STATE of Kansas, Appellee, v. Nicholas W. FISHER, Appellant.

423 P.3d 528

STATE of Kansas, Appellee,
v.
Nicholas W. FISHER, Appellant.

No. 115,277

Supreme Court of Kansas.

Opinion filed August 10, 2018


C. Ryan Gering, of Hulnick, Stang, Gering & Leavitt, P.A., of Wichita, was on the briefs for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, Wichita, and Derek Schmidt, attorney general, Topeka, were on the briefs for appellee.

The opinion of the court was delivered by Beier, J.:

423 P.3d 529

This companion case to State v. Gensler , 308 Kan. ––––, 423 P.3d 488, 2018 WL 3798387 (No. 112,523, this day decided), and State v. Mears , 308 Kan. ––––, 423 P.3d 467, 2018 WL 3797522 (No. 115,278, this day decided 2018), involves defendant Nicholas W. Fisher's sentence for driving under the influence (DUI), which was based on two prior convictions for DUI.

One of Fisher's prior DUI convictions was a Wichita Municipal Court conviction. Fisher argues that the Wichita DUI cannot be used to enhance his current state DUI sentence, because the Wichita ordinance prohibits a broader range of conduct than the Kansas statute. As detailed in our decision in Gensler , we hold that a conviction based on the ordinance cannot be used to enhance a sentence for a DUI conviction under K.S.A. 2017 Supp. 8-1567. We vacate Fisher's sentence and remand this case to the district court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On June 5, 2014, Fisher was charged with two alternative counts of driving under the influence on January 20, 2013. Based on two previous DUI convictions, the State charged Fisher with felony DUI under K.S.A. 2017 Supp. 8-1567. One of the predicate DUI convictions arose under Wichita municipal ordinance for a DUI on March 14, 2014.

The ordinance governing at the time of Fisher's prior DUI read in pertinent part:

"(a) No person shall operate or attempt to operate any vehicle within the city while:

(1) The alcohol concentration in the person's blood or breath, as measured within three hours of the time of operating or attempting to operate a vehicle is .08 or more;

(2) Under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;

(3) The alcohol concentration in the person's blood or breath as shown by any competent evidence is .08 or more. For the purposes of this section, ‘any competent evidence’ includes (1) Alcohol concentration tests obtained from samples
...

To continue reading

Request your trial
4 practice notes
  • State v. Gensler, No. 112,523
    • United States
    • United States State Supreme Court of Kansas
    • August 10, 2018
    ...State v. Mears , 308 Kan. ––––, 423 P.3d 467, 2018 WL 3797522 (No. 115,278, this day decided 2018), and State v. Fisher , 308 Kan. ––––, 423 P.3d 528 (No. 115,277, this day decided), involves defendant 423 P.3d 490Stacy A. Gensler's sentence for driving under the influence (DUI), which was ......
  • State v. Schrader, No. 115,196
    • United States
    • United States State Supreme Court of Kansas
    • August 10, 2018
    ...State v. Mears , 308 Kan. ––––, 423 P.3d 467, 2018 WL 3797522 (No. 115,278, this day decided 2018), and State v. Fisher , 308 Kan. ––––, 423 P.3d 528 (No. 115,277, this day decided 2018). Although he relies on language from a different statute, it is so similar to that examined in the three......
  • State v. Lamone, No. 115,451
    • United States
    • United States State Supreme Court of Kansas
    • September 28, 2018
    ...cannot be used to enhance a sentence for a DUI conviction under K.S.A. 2017 Supp. 8-1567. See also State v. Fisher , 308 Kan. 715, 423 P.3d 528 (2018) ; State v. Mears , 308 Kan. 719, 423 P.3d 467 (2018). We vacate Lamone's sentence and remand this case to the district court for resentencin......
  • State v. Mears, No. 115,278
    • United States
    • United States State Supreme Court of Kansas
    • August 10, 2018
    ...to State v. Gensler , 308 Kan. ––––, 423 P.3d 488, 2018 WL 3798387 (No. 112,523, this day decided), and State v. Fisher , 308 Kan. ––––, 423 P.3d 528, 2018 WL 3803077 (No. 115,277, this day decided), involves defendant David S. Mears' sentence for driving under the influence (DUI), which wa......
4 cases
  • State v. Gensler, No. 112,523
    • United States
    • United States State Supreme Court of Kansas
    • August 10, 2018
    ...State v. Mears , 308 Kan. ––––, 423 P.3d 467, 2018 WL 3797522 (No. 115,278, this day decided 2018), and State v. Fisher , 308 Kan. ––––, 423 P.3d 528 (No. 115,277, this day decided), involves defendant 423 P.3d 490Stacy A. Gensler's sentence for driving under the influence (DUI), which was ......
  • State v. Schrader, No. 115,196
    • United States
    • United States State Supreme Court of Kansas
    • August 10, 2018
    ...State v. Mears , 308 Kan. ––––, 423 P.3d 467, 2018 WL 3797522 (No. 115,278, this day decided 2018), and State v. Fisher , 308 Kan. ––––, 423 P.3d 528 (No. 115,277, this day decided 2018). Although he relies on language from a different statute, it is so similar to that examined in the three......
  • State v. Lamone, No. 115,451
    • United States
    • United States State Supreme Court of Kansas
    • September 28, 2018
    ...cannot be used to enhance a sentence for a DUI conviction under K.S.A. 2017 Supp. 8-1567. See also State v. Fisher , 308 Kan. 715, 423 P.3d 528 (2018) ; State v. Mears , 308 Kan. 719, 423 P.3d 467 (2018). We vacate Lamone's sentence and remand this case to the district court for resentencin......
  • State v. Mears, No. 115,278
    • United States
    • United States State Supreme Court of Kansas
    • August 10, 2018
    ...to State v. Gensler , 308 Kan. ––––, 423 P.3d 488, 2018 WL 3798387 (No. 112,523, this day decided), and State v. Fisher , 308 Kan. ––––, 423 P.3d 528, 2018 WL 3803077 (No. 115,277, this day decided), involves defendant David S. Mears' sentence for driving under the influence (DUI), which wa......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT