The penalty for DUI under Kansas law increases based on the number of the defendant's prior convictions. See K.S.A. 2012 Supp. 8-1567(b). A prior conviction can be a conviction for a violation of another state's law that "prohibits the acts that the Kansas DUI law prohibits." K.S.A. 2012 Supp. 8-1567(i)(1), (3).
In a recent appeal, No. 112828, I argued that Kansas can no longer use some Missouri DUI convictions because the acts prohibited by Missouri's law differs from the acts prohibited by Kansas' law, and the Court of Appeals agreed.
After comparing the Missouri and Kansas statutes prohibiting driving while intoxicated or driving under the influence, the Court of Appeals concluded that it is possible that the defendant could have been convicted in Missouri for conduct that would not lead to a conviction for driving under the influence in Kansas. Therefore, the prior Missouri conviction does not qualify as a prior conviction under K.S.A. 2012 Supp. 8-1567(i).
Accordingly, the Court of Appeals vacated his sentence and remanded the case for resentencing with instructions that the district court exclude the prior Missouri DUI from the defendant's criminal history score.
If you are charged with a DUI, and have prior out-of-state convictions, I can evaluate your case to determine if your prior DUI's should be used in determining your criminal history score.