ANOTHER PROBLEM WITH PRIOR DUI'S

The Court of Appeals recently reversed the enhancement of a DUI sentence in State v. Portsche.  This case is an important one for anyone charged with a crime, but especially those charged with DUI.  The underlying issue was about reliability of documents to support allegations that can wind up costing DUI defendants thousands of dollars, hundreds of hours of time, and days in jail.  With this case, the Court of Appeals informs district court judges that their job is to ensure everyone receives a fair punishment based on reliable evidence. 

In Portsche, the defendant was charged with felony DUI.  As many of us know, the penalties for DUI's are enhanced when the defendant has prior DUI convictions.  In this case, the defendant had two priors - from KCMO Municipal Court and KCK Municipal Court.  Although the State produced some evidence of the priors, and the Johnson County District Court approved, the Kansas Court of Appeals held that the evidence was insufficient to support enhancement of the penalties. 

With regard to the KCMO prior, the heart of the case follows:

​"When the State attempts to establish a defendant's criminal history with copies of official documents, those copies must satisfy K.S.A. 60-465's authentication requirements, or they are inadmissible hearsay. Our Supreme Court has stated that copies of out-of-state records must be "attested to as required by K.S.A. 60-465 and authenticated by the seal of the office having custody." The attestation required by K.S.A. 60-465 is that the document must be "attested as a correct copy of the record or entry by a person purporting to be an officer, or a deputy of an officer, having the legal custody of the record." Although the clerk's seal and signature pass muster as an authentication, given that these were Missouri court records it was also required that the court records have an attestation pursuant to K.S.A. 60-465. That attestation required a statement by the official legal custodian that Exhibits 1A and 1B were "a correct copy of the record or entry" of the court. See K.S.A. 60-465(1). No such attestation is found on either of these two exhibits."

​Because the State failed to provide a preponderance of the evidence supporting the reliability of the MO prior DUI, that prior DUI could not be used to enhance the sentence in that case.

The Court of Appeals also found that the KCK prior DUI could not be used to enhance the sentence:

"K.S.A. 2015 Supp. 12-4414(c) provides in part that in all municipal court diversion cases "the defendant shall be present and shall have the right to be represented by counsel at the diversion conference with the city attorney." Our Supreme Court has confirmed the plain language of subsection (c) by stating:  "Based on the language of K.S.A. 12-4414(c), a defendant has a statutory right to be represented by counsel at a DUI diversion conference with a city attorney.""

"We are persuaded that, under the unique circumstances of this case, the State has failed to establish by a preponderance of evidence the validity or terms of the KCKS DUI diversion agreement sufficient to prove that it constitutes a valid prior DUI conviction for purposes of sentence enhancement. Accordingly, we find there was not substantial competent evidence to support the district court's finding that the State had met its burden of proof with regard to the KCKS DUI diversion."

​Accordingly, the Court of Appeals ordered the case to be remanded to the district court for sentencing based on a first DUI, rather than a third DUI. 


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