State v. Todd, 78083

• Decision Date: 11 July 1997
• Docket Number: No. 78083,78083
• Citation: 262 Kan. 916,941 P.2d 1374
• Parties: STATE of Kansas, Appellant, v. Tracey TODD, Appellee.
• Court: Kansas Supreme Court

Page 1374

941 P.2d 1374

262 Kan. 916

STATE of Kansas, Appellant, v. Tracey TODD, Appellee.

No. 78083.

Supreme Court of Kansas.

July 11, 1997.

Syllabus by the Court

1. Three elements must be present under the compulsory joinder clause of K.S.A. 21-3108(2)(a) to bar a subsequent prosecution: First, the prior prosecution must have resulted in a conviction or acquittal; second, evidence of the present crime must have been introduced in the prior prosecution; and third, the charge in the second prosecution must have been one which could have been charged as an additional count in the prior case.

2. The purpose of the compulsory joinder clause of K.S.A. 21-3108(2)(a) is to prevent the prosecution from substantially proving a crime in a trial in which the crime is not charged and then, in effect, retrying a defendant for the same offense in a trial when the crime is charged.

Micheal A. Ireland, County Attorney, argued the cause, and Lee K. Durham, Legal Intern, and Carla J. Stovall, Attorney General, were with him on the brief, for appellant.

Margie J. Phelps, Topeka, argued the cause, and Jonathan B. Phelps and Chris R. Davis, of Phelps--Chartered, Topeka, were on the brief, for appellee.

ALLEGRUCCI, Justice:

This is an appeal by the State from the district court's order dismissing a complaint against Tracey Todd for driving under the influence of alcohol (second offense), in violation of K.S.A.1996 Supp. 8-1567. This court has jurisdiction pursuant to K.S.A. 22-3602(b)(1), which authorizes an appeal to the Supreme Court by the prosecution from an order of the district court dismissing a complaint.

A "Uniform Notice to Appear and Complaint," ticket No. 0188, was issued to Tracey Todd on September 13, 1996. It was the basis for case No. 96TR1120 in Jackson County District Court. Todd was cited for "Operating a Vehicle Under the Influence of Alcohol," a misdemeanor in violation of K.S.A.1996 Supp. 8-1567.

The parties agree that a separate ticket was issued by the arresting officer. The separate ticket was for the traffic infraction of refusing to submit to a preliminary breath test, K.S.A.1996 Supp. 8-1012. The parties further agree that Todd did not appear in municipal court, did not contest the infraction, and mailed in payment of the fine.

In the district court, an amended complaint was filed, alleging that Todd was driving under the influence of alcohol and/or drugs on September 13, 1996, "having previously entered into a diversion agreement for driving under the influence on November 2, 1994."

A transcript of proceedings on November 18, 1996, shows that a motion to dismiss was filed on behalf of Todd at some time before the hearing. In his presentation to the district court, defense counsel argued "that the compulsory joinder rule as [expounded] upon in the Brueninger case would require a dismissal pursuant to K.S.A. 21-3108(2)(a)." The district court added and defense counsel agreed: "In that the same evidence was presented or would have been presented in the Municipal Court case." In State v. Brueninger, 238 Kan. 429, 710 P.2d 1325 (1985), the district court driving under the influence (DUI) case was dismissed because evidence pertaining to defendant's DUI had been presented in municipal court where defendant was convicted of failure to stop at a flashing red light and driving left of center, all of which arose out of the same incident.

The district court concluded that Todd's conceding the allegations by not contesting the municipal court charge was conceptually indistinguishable from evidence actually being presented. The journal entry of dismissal states in part: "[T]he above-captioned matter is dismissed on the grounds set forth in defendant's motion to dismiss on grounds of former jeopardy and the Court's oral statements in its ruling of November 18, 1996."

The sole question raised in this appeal is whether Todd's previous plea of no contest in municipal court to the traffic infraction of refusing to submit to a preliminary breath test was a barrier to his prosecution in district court for DUI arising out of the same incident. K.S.A.1996 Supp. 8-1012 provides, in part:

"A law enforcement officer may request a person who is operating ... a vehicle within this state to submit to a preliminary screening test of the person's breath to determine the alcohol concentration of the person's breath if the officer has reasonable grounds to believe that the person: (a) Has alcohol in the person's body.... Refusal to take and complete the test as requested is a traffic infraction."

The sanctions for refusing to take a preliminary breath test are a fine and suspension of driving privileges. The uniform fine schedule for traffic infractions sets $30 as the fine for refusing to submit to a preliminary breath test. K.S.A.1996 Supp. 8-2118(c). K.S.A.1996 Supp. 8-1014(a) provides: "Except as provided by subsection (d) ..., if a person refuses a test, the division, pursuant to K.S.A. 8-1002 ... shall suspend the person's driving privileges for one year."

In district court, Todd was charged with DUI, second offense. K.S.A.1996 Supp. 8-1567(a) prohibits driving under the influence of alcohol. K.S.A.1996 Supp. 8-1567(e) provides:

"On a second conviction of a violation of this section, a person shall be guilty of a class A, nonperson misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $500 nor more than $1,000. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. Except as provided in subsection (g), the person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008, and amendments thereto."

K.S.A.1996 Supp. 8-1567(g) authorizes placement under a house arrest program after the defendant "has served 48 consecutive hours' imprisonment." K.S.A.1996 Supp. 8-1567(l ) mandates suspension of driving privileges according to 8-1014. Subsection (b)(2) of 8-1014 provides that for a DUI conviction, the division of vehicles "shall ... on the person's second ... occurrence, suspend the person's driving privileges for one year." Subsection (d) of 8-1014 prohibits making suspension periods cumulative or otherwise imposing them consecutively.

The statute cited by the district court in dismissing the DUI charge against Todd was K.S.A. 21-3108(2)(a). Referring to the compulsory joinder aspect of the statute, this court has stated that its purpose is to prevent "the prosecution from substantially proving a crime in a trial in which the crime is not charged, and then in effect retrying the defendant for the same offense in a trial where it is charged." State v. Mahlandt, 231 Kan. 665, 647 P.2d 1307, Syl. 1, 231 Kan. 665, 647 P.2d 1307 (1982). K.S.A. 21-3108(2)(a) provides, in part:

"(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, ... if such former prosecution:

(a) Resulted in ... a conviction ... and the subsequent prosecution is for a crime ... of which evidence has been admitted in the former prosecution and which might have been included as [another count] in the complaint ... filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution...."

Interpretation of the statute is a question of law, for which this court's review is unlimited. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).

Both parties cite State v. Brueninger, 238 Kan. 429, 710 P.2d 1325. In that case, the defendant drove through Rossville where a police officer saw her ignore a flashing red light and travel left of the center line. The officer stopped her outside the Rossville city limits in Shawnee County. Brueninger appeared to be under the influence of alcohol or drugs. She consented to a field sobriety test, and then she was arrested. She was charged in Rossville with the traffic infractions and in Shawnee County District Court with DUI. At the trial in Rossville municipal court, "some evidence of her intoxicated condition was introduced." 238 Kan. at 430, 710 P.2d 1325. She was convicted of failure to stop at a flashing red light and driving left of center. Later, the district court in Shawnee County dismissed the DUI charge "pursuant to K.S.A. 21-3108(2)(a)." 238 Kan. at 431, 710 P.2d 1325. The question for this court was whether the prior municipal court proceedings barred the DUI prosecution in district court.

This court's analysis began with the declaration that the issue was controlled by K.S.A. 21-3108(2)(a). The statute "incorporates two key concepts--the compulsory joinder rule and the identity of elements rule." 238 Kan. at 432, 710 P.2d 1325. The rules are separated by a semicolon in subsection (a). The court proceeded to consider and apply both clauses to determine if either barred the State from prosecuting the defendant for DUI.

The identity of elements rule, also called the same evidence test in the Brueninger opinion, is often identified as a question of merger. The standard the court applied determines whether each statute requires proof of a fact which the other does not. This may be seen in the quotation from Spring, The Effect of Former Prosecutions: Something Old and Something New Under Kan. Stat. Ann. Sec. 21-3108, 9 Washburn L.J. 179, 185 (1970): " ' "Thus,...