State v. Mears, No. 115,278

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by Beier, J.
Citation423 P.3d 467
Decision Date10 August 2018
Docket NumberNo. 115,278
Parties STATE of Kansas, Appellee, v. David Sheldon MEARS, Appellant.

423 P.3d 467

STATE of Kansas, Appellee,
v.
David Sheldon MEARS, Appellant.

No. 115,278

Supreme Court of Kansas.

Opinion filed August 10, 2018.


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

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

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

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. 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 was based on two prior convictions for DUI.

One of Mears' prior DUI convictions was a Wichita Municipal Court conviction. Mears 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 Mears' sentence and remand this case to the district court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On September 23, 2014, the State charged Mears with two alternative counts of felony driving under the influence on October 19, 2013. One of the two predicate DUIs used to elevate the current case to felony level was an April 13, 2011, conviction in Wichita Municipal Court for driving under the influence.

The Wichita ordinance governing at the time of Mears' prior DUI read in pertinent part:

"(a) No person shall operate or attempt to operate any vehicle within the city while:
423 P.3d 468
(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
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4 practice notes
  • State v. Gensler, No. 112,523
    • United States
    • United States State Supreme Court of Kansas
    • 10 August 2018
    ...him on the brief for appellee.The opinion of the court was delivered by Beier, J.:This companion case to 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), inv......
  • State v. Schrader, No. 115,196
    • United States
    • United States State Supreme Court of Kansas
    • 10 August 2018
    ...in State v. Gensler , 308 Kan. ––––, 423 P.3d 488, 2018 WL 3798387 (No. 112,523, this day decided 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)......
  • State v. Lamone, No. 115,451
    • United States
    • United States State Supreme Court of Kansas
    • 28 September 2018
    ...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 resentencing. FACTUAL AND PROCEDURAL BACKGROUND On July 3,......
  • State v. Fisher, No. 115,277
    • United States
    • United States State Supreme Court of Kansas
    • 10 August 2018
    ...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),......
4 cases
  • State v. Gensler, No. 112,523
    • United States
    • United States State Supreme Court of Kansas
    • 10 August 2018
    ...him on the brief for appellee.The opinion of the court was delivered by Beier, J.:This companion case to 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), inv......
  • State v. Schrader, No. 115,196
    • United States
    • United States State Supreme Court of Kansas
    • 10 August 2018
    ...in State v. Gensler , 308 Kan. ––––, 423 P.3d 488, 2018 WL 3798387 (No. 112,523, this day decided 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)......
  • State v. Lamone, No. 115,451
    • United States
    • United States State Supreme Court of Kansas
    • 28 September 2018
    ...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 resentencing. FACTUAL AND PROCEDURAL BACKGROUND On July 3,......
  • State v. Fisher, No. 115,277
    • United States
    • United States State Supreme Court of Kansas
    • 10 August 2018
    ...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),......

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