Two recent Kansas Supreme Court decisions make it clear that a person charged with Driving Under the Influence (DUI) has the right to know the severity level of the offense and that the severity level needs to be set forth in the charging document itself.  Because the only charging document in cases prosecuted in municipal court is usually a Uniform Complaint and Notice to Appear (citation), it is imperative that officers specify in the citation whether the DUI is second offense.  (Cities cannot prosecute third DUI offenses because state law classifies them as felonies.  City of Junction City v. Cadoret, 263 Kan. 164, 946 P.2d 1356 (1997)).

    K.S.A. 1998 Supp. 8-1567 makes a first DUI conviction a class B nonperson misdemeanor, a second conviction within five years of a prior conviction a class A nonperson misdemeanor, and a third or subsequent conviction within five years of prior convictions a nonperson felony. K.S.A. 1998 Supp. 8-1567(d), (e) and (f).  Second convictions are punished more severely than first convictions, and third or subsequent convictions are punished more severely than second convictions.

    Only convictions occurring in the five years immediately preceding the offense date of the current charge trigger the recidivist provisions of the statute, but it is irrelevant whether an offense occurred before or after conviction for a previous offense.  K.S.A. 1998 Supp. 8-1567(k); City of Chanute v. Wilson, 10 Kan. App. 2d 498, 704 P.2d 392 (1985).  The city ordinances governing DUI sentences are virtually identical. See STO 30 (d), (e) and (j).

    In State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996), the Kansas Supreme Court quoted a prior decision stating,?[W]e think the defendant was entitled to know, and to be specifically advised by the information of the specific offense with which he was charged and the seriousness thereof, including the class of felony of which he stood accused.?  The state protested that it may not have the defendant?s driving record at the time the complaint is filed, but the Supreme Court noted that the driving records could be obtained before trial and an amended complaint filed. ?Masterson should have the right to know before trial the severity level of the crime being charged.  "His right to a jury trial will be affected.? Masterson, 261 Kan. At 164.  The Supreme Court concluded the complaint or information must include the severity level of the crime charged, but proof of a prior conviction is not an element of the offense and need not be proved until the sentencing phase.  The Court also held that if the plaintiff (the state or city) fails to specify the severity level of the offense, the defendant may only be sentenced to the lowest penalty provided by law, in other words, sentenced as a first-time offender.  Masterson, 261 Kan. at 164.

    In City of Dodge City v. Wetzel, ___ Kan. ___ (No. 81,188, filed May 28, 1999), the Kansas Supreme Court expressly held that Masterson applies to municipal court DUI cases and that a failure to specify the severity level of an offense requires the court to sentence the defendant as a first-time offender, even if he has prior DUI convictions.  Wetzel, Slip Opinion at 7 (This slip opinion reference refers to the slip opinion on the  Kansas Appellate Court's website website and may not correspond to the actual slip opinion prepared by the Reporter of Decisions).

    Because a failure to specify severity level in the charging document results in a ?default? first-offender sentence, officers should presume that any prior DUI activity on a driving record resulted in a conviction and charge accordingly. In order to comply with Masterson and Wetzel, when arresting someone for DUI officers should:

• Ask dispatchers whether the driving record shows any prior 10-46 (DUI) history.
• If there is one possible offense in the previous five years, officers should write ?DUI - 2^nd Offense? on the citation as the DUI charge, even if the officer is not sure at the time whether a prior test failure or test refusal resulted in a conviction.  It is easy for the City Attorney?s Office to amend severity levels downward, but more cumbersome to amend them upwards.
• If the driving record shows two or more possible DUI offenses in the previous five years, officers should treat the offense as a felony DUI, complete an offense report, and send the case to the District Attorney?s office for prosecution.  As noted above, officers should make an initial determination on severity level at the time of the arrest based on the best information available to them even if the officer is not sure at the time whether a prior test failure or test refusal resulted in a conviction.  If the officer's initial determination is incorrect, it is easier to amend downward than it is upward.

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