1

No. 121,475

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellant,

v.

MICHAEL VINCENT MEJIA,

Appellee.

SYLLABUS BY THE COURT

A conviction from another state for driving under the influence may be used to 

enhance a DUI charge under K.S.A. 2019 Supp. 8-1567 from a misdemeanor to a felony 

or to increase the punishment of a recidivist, even though the other state's statute 

proscribes a broader range of conduct. The two statutes need only be generally 

comparable as defined in K.S.A. 2019 Supp. 8-1567(j).

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed May 22, 

2020. Reversed and remanded with directions.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek 

Schmidt, attorney general, for appellant. 

Danielle Hamilton Slate, public defender, and Michelle Durrett, deputy public defender, of 

Olathe, for appellee.

Before MALONE, P.J., ATCHESON and SCHROEDER, JJ.

ATCHESON, J.: The State charged Defendant Michael Vincent Mejia with driving 

under the influence, a violation of K.S.A. 8-1567, and relied on three Missouri 

convictions to elevate the offense from a misdemeanor to a felony. The Johnson County 
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District Court declined to bind Mejia over at the preliminary hearing because his 

Missouri convictions were based on a statute that proscribed a broader range of conduct 

than K.S.A. 8-1567. The State has appealed. 

We reverse and remand with directions to the district court to reinstate the felony 

DUI charge against Mejia. The Kansas Legislature has amended K.S.A. 8-1567 to permit 

charging and sentencing enhancements for DUIs based on out-of-state convictions under 

statutes that are comparable to Kansas law—meaning "similar to" rather than the same as 

or narrower than Kansas law. The amendment applies in this case. The relevant Missouri 

statute, Mo. Rev. Stat. § 577.010, is similar to K.S.A. 8-1567, so Mejia's convictions 

support the felony charge, consistent with the legislative policy behind the escalating 

punishment of recidivist drunk drivers. Intoxicated drivers pose an indisputably serious 

and, indeed, often lethal danger to the motoring public.

CASE HISTORY

The factual circumstances of Mejia's arrest in October 2018 are irrelevant to the 

issue before us. The State initially charged Mejia with a misdemeanor DUI and later filed 

an amended complaint elevating the charge to a fourth offense and, thus, a felony under 

K.S.A. 2018 Supp. 8-1567. The State identified three convictions Mejia had for violating 

Mo. Rev. Stat. § 577.010 that proscribes "driving while intoxicated" as the basis for the 

felony charge.

Mejia filed a motion challenging the use of his Missouri convictions to elevate the 

DUI charge to a felony. After further briefing, the district court filed a seven-page journal 

entry finding that the State could not rely on the Missouri convictions under Mo. Rev. 

Stat. § 577.010 because that statute proscribed a broader range of conduct than K.S.A. 8-

1567. In reaching that conclusion, the district court relied, in part, on State v. Wetrich, 

307 Kan. 552, 412 P.3d 984 (2018), that held out-of-state convictions used in establishing 
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defendants' criminal histories under the Kansas Criminal Code had to prohibit the same 

or a narrower range of conduct to be comparable to a Kansas crime. The district court 

also held that Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 

(2000), and its application in Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 

L. Ed. 2d 314 (2013), and State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), limited 

its review to a comparison of the statutory elements of Mo. Rev. Stat. § 577.010 and 

K.S.A. 2018 Supp. 8-1567 without considering the facts underlying Mejia's Missouri 

convictions. The ruling, issued in early May 2019, did not grant Mejia any specific relief 

and simply outlined the district court's view on how his Missouri convictions should be 

treated. 

The district court held a preliminary hearing about three weeks later. The State had 

also charged Mejia with driving while suspended under K.S.A. 2018 Supp. 8-262 and 

felony evading or attempting to elude a police officer under K.S.A. 2018 Supp. 8-1568. 

Adhering to its earlier written ruling, the district court declined to bind Mejia over for 

trial on the felony DUI charge. The district court found probable cause to hold Mejia for 

trial on the other felony and set the driving while suspended charge for trial. Shortly after 

the district court's ruling at the preliminary hearing, the State dismissed both of those 

charges without prejudice. The State has appealed the district court's rejection of the 

felony DUI charge.

LEGAL ANALYSIS

A. Legal Basis for State's Appeal; Standard of Review

Before turning to the principal issue, we dispose of Mejia's argument that the State 

has improperly appealed the district court's ruling. In a criminal case, the State may 

appeal adverse rulings only in specific statutorily identified circumstances. A district 

court's dismissal of a complaint is one of them. K.S.A. 2019 Supp. 22-3602(b)(1). Here, 
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the district court effectively dismissed the complaint against Mejia for felony DUI when 

it refused to bind him over for trial on that charge. The district court then granted the 

State's motion to dismiss without prejudice the remaining charges against Mejia. Taken in 

tandem, the district court's refusal to hold Mejia on the felony DUI charge and its order of 

dismissal of the other charges brought the State within the scope of K.S.A. 2019 Supp. 

22-3602(b)(1). See State v. Phelps, 266 Kan. 185, 194, 967 P.2d 304 (1998); State v. 

Freeman, 234 Kan. 278, 282, 670 P.2d 1365 (1983). The State, therefore, has properly

appealed the district court's dismissal of the felony DUI charge.

The State's use of Mejia's Missouri convictions as predicate offenses under K.S.A.

2018 Supp. 8-1567 does not rest on the district court's resolution of conflicting testimony 

or other disputed facts. Rather, we must construe the Kansas and Missouri statutes 

governing drunk driving in light of established legal principles and a few settled facts. 

The task presents only questions of law we may answer without deference to the district 

court. State v. Turner, 293 Kan. 1085, 1086, 272 P.3d 19 (2012) (statutory construction 

presents question of law subject to unlimited review on appeal); State v. Bennett, 51 Kan. 

App. 2d 356, 361, 347 P.3d 229 (2015) (when material facts undisputed, issue presents 

question of law).

B. Misplaced Reliance on Wetrich as Controlling Authority

We now take up the propriety of the district court's decision. The basic flaw in 

Mejia's argument and, in turn, the district court's ruling lies in the assumption that 

Wetrich governs. The Wetrich decision sets a standard for determining the comparability 

of out-of-state criminal convictions to Kansas crimes for purposes of computing 

defendants' criminal histories for sentencing under the Kansas Criminal Code. That is a 

broad function applicable to hundreds of crimes defined in Chapter 21. 
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But the Kansas Supreme Court has recognized that K.S.A. 8-1567, outlawing 

driving under the influence, is distinct from Chapter 21—it reposes in Chapter 8—and 

should be treated as an essentially self-contained proscriptive and punitive statute. State 

v. Reese, 300 Kan. 650, 654, 333 P.3d 149 (2014) ("Kansas' DUI law is a self-contained 

criminal statute, which means that all essential components of the crime, including the 

elements, severity levels, and applicable sentences, are included within the statute."). In 

other words, what's required or good for Chapter 21 isn't necessarily so for K.S.A. 8-

1567. As the Reese court explained: "Given that the DUI statute provides its own 

sentencing provisions, cases relating to the proper application of the [revised] Kansas 

Sentencing Guidelines Act (KSGA) are of minimal precedential value." 300 Kan. at 654. 

By its own pronouncement, then, the Kansas Supreme Court should not construe Wetrich

to be controlling authority for K.S.A. 8-1567 and ought to treat it as advisory guidance to 

the extent it might be analogous.

C. Wetrich Inapposite as Analogous Authority

As we explain, the analogy between comparing out-of-state convictions for 

criminal history purposes under Chapter 21 generally, on the one hand, and the 

particularized use of out-of-state convictions for impaired driving offenses in making 

charging and sentencing decisions under K.S.A. 8-1567, on the other, is not an especially 

tight one. Moreover, after Wetrich and before Mejia's arrest, the Kansas Legislature 

amended K.S.A. 8-1567 to ward off the application of Wetrich. See L. 2018, ch. 106, 

§ 13. Again, as we explain, the legislative intent behind the amendment is quite apparent, 

although the way it functions in practice isn't as clear.

1. Issue and Holding in Wetrich

We first look at the Chapter 21 sentencing issue decided in Wetrich. There, 

Wetrich faced sentencing on multiple felonies in Johnson County District Court. Under 
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the sentencing guidelines, Wetrich's presumptive prison terms for those felonies 

depended, in part, on his criminal history that included a Missouri burglary conviction. 

The legal dispute focused on how that Missouri conviction should be scored in 

determining Wetrich's criminal history. 

Under K.S.A. 2017 Supp. 21-6811(e)(2)(A) and (3), an out-of-state felony 

conviction should be classified as a person felony if the "comparable" Kansas crime were 

designated a person offense. If there were no comparable Kansas crime, the out-of-state 

felony conviction should be classified as a nonperson felony. Person felonies have a 

markedly greater impact on a defendant's criminal history score and the resulting 

presumptive term of imprisonment than do nonperson felonies. Before the Kansas 

Supreme Court decided Wetrich, the district courts and the Court of Appeals construed 

the statutory term "comparable" to mean "similar to," so an out-of-state conviction for a 

crime that generally replicated a Kansas crime would be classified as a person or 

nonperson offense consistent with the Kansas crime. In some instances, the out-of-state 

statute might criminalize a broader range of conduct than the Kansas criminal statute. 

See, e.g., State v. Moore, 52 Kan. App. 2d 799, 813-14, 377 P.3d 1162 (2016) (citing 

State v. Williams, 299 Kan. 870, 873, 326 P.3d 1070 [2014]). 

The Wetrich court found the word "comparable" as used in K.S.A. 2017 Supp. 21-

6811(e)(3) to be ambiguous in that it could mean "'[c]apable of being compared'" or 

"'[l]ike or equivalent'" or "'akin . . . close'" or "'identical . . . without distinction.'" 307 

Kan. at 560. To resolve the ambiguity, the court looked at how the sentencing guidelines 

should be construed to promote like punishments for similarly situated defendants—a 

principal legislative purpose in adopting the guidelines. 307 Kan. at 560-61. The court 

reasoned that uniformity in sentencing would be fostered by requiring that the statutory 

elements of an out-of-state conviction be the same as or narrower than the elements of the 

"comparable" Kansas statute for criminal history purposes. That is, an out-of-state crime 

would not be comparable to a Kansas crime if its statutory definition criminalized more 
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conduct than a similar Kansas statute. 307 Kan. at 561-62. As a result, a conviction 

resting on a broader out-of-state statute would have to be scored as a nonperson offense 

in determining a criminal defendant's criminal history. Wetrich benefited from that new 

rule by having his Missouri burglary conviction reclassified as a nonperson felony. See 

307 Kan. at 563-64.

Without that limitation on comparable offenses, the court feared rampant "ad hoc" 

decisions among the district courts in classifying out-of-state convictions for criminal 

history purposes. 307 Kan. at 561. One district court might view a particular out-of-state 

conviction as sufficiently similar to a particular Kansas crime whereas another district 

court would not. That would lead to differing criminal histories and differing presumptive 

sentences for similarly situated defendants. Given the number of crimes identified in 

Chapter 21, the number of potentially comparable crimes in the remaining 49 states, and 

the number of district courts making comparisons, the scale of the potential deviations 

across cases would be, to put it mildly, large. The Legislature has since amended K.S.A. 

21-6811(e)(3) to change how out-of-state convictions are classified as person or 

nonperson offenses. The issue for us, however, is whether the method of analysis and 

result in Wetrich apply by analogy to K.S.A. 8-1567, so the current version of K.S.A. 21-

6811(e)(3) has no direct relevance to our inquiry.

2. Focused Scope and Public Policies of K.S.A. 8-1567 Distinguish Wetrich 

The rule and rationale of Wetrich do not ineluctably carry over to the charging and 

sentencing of recidivist drunk drivers under K.S.A. 8-1567. To the contrary, there are 

good reasons to conclude they don't. First, of course, is the court's own cleaving of 

Chapter 21 crimes from K.S.A. 8-1567 in Reese.

In addition, the focused public safety policies that animate the charging and 

sentencing enhancements in K.S.A. 8-1567 coupled with the narrow scope of the targeted 
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behavior largely erase the concerns in Wetrich about substantial sentencing disparities 

resulting from the sheer breadth of the criminal code. To state the obvious, K.S.A. 8-1567 

punishes a driver for operating or attempting to operate a motor vehicle under the 

influence of alcohol or other intoxicants. The statute prohibits operating a motor vehicle 

if a person is "incapable of safely driving." K.S.A. 2019 Supp. 8-1567(a)(3). And it 

prohibits driving with a blood-alcohol level of 0.08 or more regardless of the degree of 

impairment or having a blood-alcohol level that high within three hours after driving. 

K.S.A. 2019 Supp. 8-1567(a)(1) and (2). That's a considerably more confined ballpark 

than the widely varied conduct criminalized in Chapter 21, ranging from murder to theft 

to bribing public officials.

For decades, legislative bodies and courts have recognized the special danger 

drunk drivers pose to other motorists and, hence, the public at large. Birchfield v. North 

Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2166, 195 L. Ed. 2d 560 (2016) ("Drunk drivers 

take a grisly toll on the Nation's roads, claiming thousands of lives, injuring many more 

victims, and inflicting billions of dollars in property damage every year."); Michigan 

Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S. Ct. 2481, 110 L. Ed. 2d 412 

(1990) (likening the deaths and injuries caused by drunk drivers to losses "'only heard of 

on the battlefield'") (quoting Breithaupt v. Abram, 352 U.S. 432, 439, 77 S. Ct. 408, 1 L. 

Ed. 2d 448 [1957]); State v. Sedillos, 279 Kan. 777, 784-85, 112 P.3d 854 (2005); State v. 

Kitzman, 240 Kan. 191, 194, 727 P.2d 491 (1986). In turn, legislatures have regularly 

revised DUI statutes to make them more effective in discouraging drunk driving. See 

Birchfield, 136 S. Ct. at 2169; Sedillos, 279 Kan. at 784-85. And police agencies have 

deployed various enforcement tools, such as DUI checkpoints and saturation patrols 

targeting impaired drivers, to both deter and intercept drunk drivers. See Sitz, 496 U.S. at

447 (DUI checkpoints constitutionally permissible if conducted within certain

guidelines). 
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Consistent with those enforcement efforts, the Kansas Legislature has enacted 

escalating penalties for successive DUI convictions to deter recidivism. See K.S.A. 2019 

Supp. 8-1567(b)(1)(A)-(E). In addition, a driver with two previous DUI convictions, 

including one in the past 10 years, or three DUI convictions any time after July 1, 2001, 

faces a felony rather than a misdemeanor if he or she is again charged with DUI. See 

K.S.A. 2019 Supp. 8-1567(b)(1)(D) and (i)(1). Felony convictions carry significant 

collateral consequences misdemeanor convictions do not. See State v. Dugan, 47 Kan. 

App. 2d 582, 600-01, 276 P.3d 819 (2012). And that brings the issue in Mejia's case front 

and center: What out-of-state convictions count as predicates for a felony charge or 

increased punishments under K.S.A. 2019 Supp. 8-1567?

Two subsections of K.S.A. 8-1567 yield the answer. First, K.S.A. 2019 Supp. 8-

1567(i)(3) defines "conviction" to include "a violation of . . . any law of another 

jurisdiction that would constitute an offense that is comparable to" a DUI under K.S.A. 8-

1567(a) or several other offenses that also require the operation of a motor vehicle or a 

vessel while intoxicated. Second, after the Kansas Supreme Court issued Wetrich and 

before Mejia's arrest, the Legislature added clarifying language in K.S.A. 2019 Supp. 8-

1567(j) explaining comparability:

"For the purposes of determining whether an offense is comparable, the 

following shall be considered:

"(1) The name of the out-of-jurisdiction offense;

"(2) the elements of the out-of-jurisdiction offense; and

"(3) whether the out-of-jurisdiction offense prohibits similar conduct to the 

conduct prohibited by the closest approximate Kansas offense." L. 2018, ch. 106, § 13.

The two subsections should be considered together. As a practical matter, the 

three-factor test for comparability in K.S.A. 2019 Supp. 8-1567(j) turns on the elements 

of the out-of-state offense. Presumably, the name of a statute proscribing conduct would 

include some description of that conduct generally conforming to the elements of the 
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offense. And a determination of the prohibited conduct identified in the out-of-state 

offense would require a review of the statutory elements, since that's their fundamental 

purpose. But, as described in K.S.A. 2019 Supp. 8-1567(j)(3), the elements need only be 

"similar" to the elements of DUI in K.S.A. 2019 Supp. 8-1567(a) or the other listed 

offenses, all of which also include the operation of vehicles under the influence. The 

Legislature's use of the word "similar" certainly suggests an out-of-state conviction need 

not match a conviction under K.S.A. 2019 Supp. 8-1567(a) to be considered 

"comparable" for purposes of charging and punishing a recidivist. See The American 

Heritage College Dictionary 1292 (4th ed. 2004) (defining "similar" as "[r]elated in 

appearance or nature; alike though not identical"); see also Midwest Crane & Rigging, 

LLC v. Kansas Corporation Comm'n, 306 Kan. 845, 851, 397 P.3d 1205 (2017) (words of 

statute typically given their ordinary meaning, absent specialized statutory definition; 

common dictionaries appropriate source for those usual meanings). In ordinary usage,

then, similarity conveys a qualitative likeness—things that have material common 

attributes, though there may be differences. So performing in a play would be both 

similar to (and broader than) musical theater specifically and similar to (but narrower 

than) acting generally. It wouldn't be particularly like skydiving or carpentry.

3. Construing Statutory Purpose of Comparability of Predicate Offenses

In construing a comprehensive statutory scheme such as the one for identifying 

and punishing driving under the influence, an appellate court must, as a first priority, 

strive to honor the legislative intent and purpose. See State v. Barlow, 303 Kan. 804, 813, 

368 P.3d 331 (2016); In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014). 

The court should look initially to the words of a statute to discern legislative intent.

Barlow, 303 Kan. at 813. If the operative language is open to more than one reasonable 

interpretation, a court may consider the overall statutory purpose and favor a reading that 

comes to a "consistent, harmonious, and sensible" result effectuating that purpose. In re 

Marriage of Traster, 301 Kan. at 98. The court may also review the legislative history of 
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the statute and apply canons of construction to hone otherwise ambiguous language.

Barlow, 303 Kan. at 813.

As we parse the statutory language here, we presume the Kansas Supreme Court's 

linguistic premise in deciding Wetrich that the word "comparable"—common to K.S.A. 

2019 Supp. 8-1567(i)(3) and K.S.A. 2019 Supp. 21-6811(e)(3)—is ambiguous and would 

be so in both statutes. The recent amendment to K.S.A. 8-1567 displays a legislative 

intent to avert Wetrich's the-same-as-or-narrower-than test for comparable out-of-state 

convictions when it comes to DUIs. The amendment, in that sense, clarified the meaning 

of the existing statutory language rather than changing it, reflecting a legislative effort to 

inoculate K.S.A. 8-1567 against any argument that Wetrich should govern by analogy. 

See Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan. 446, 458-59, 264 P.3d 102 

(2011) (discussing purpose and effect of clarifying amendment). To assess the meaning 

of the statutory language, given the presumed ambiguity of "comparable" in describing 

relevant out-of-state convictions triggering the recidivist provisions of K.S.A. 8-1567, we 

may consider legislative history. Particularly instructive here is the explanatory 

introduction to the bill that became K.S.A. 8-1567(j):

"WHEREAS, The Legislature intends that the provisions of this act related to 

comparability of an out-of-jurisdiction offense to a Kansas offense shall be liberally 

construed to allow comparable offenses, regardless of whether the elements are identical 

to or narrower than the corresponding Kansas offense, to be included in a person's 

criminal history; and

"WHEREAS, The Legislature intends to promote the inclusion of convictions for 

such offenses in a person's criminal history, including, but not limited to, any violation 

of: . . . Missouri, V.A.M.S. § 577.010 or V.A.M.S. § 577.012." L. 2018, ch. 106, 

Preamble.

The introductory "whereas" clauses of a bill typically do not become part of the 

statute, as was true here; but they may shine a bright light on legislative intent, as is also 
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true here. The purpose of K.S.A. 2019 Supp. 8-1567(j) is to require broad consideration 

of "comparable" predicate offenses for purposes of imposing felony charges and 

escalated penalties on repeat DUI offenders. The Legislature specifically rejected 

Wetrich's considerably more constrained interpretation of K.S.A. 2017 Supp. 21-6811 

and, conspicuously for our purposes, cited Mo. Rev. Stat. § 577.010 as illustrative of a 

comparable statute. In short, the Legislature intended that out-of-state convictions under 

statutes proscribing broader conduct than K.S.A. 8-1567(a) trigger the recidivist 

provisions under K.S.A. 8-1567(b), so long as the conduct is similar.

Unlike the district court, we do not see Wetrich overriding the legislative intent 

animating the use of similar, though broader, out-of-state convictions under K.S.A. 8-

1567(b). Although Wetrich alludes to constitutional concerns—a point we address 

shortly—the decision rests on a statutory ground tied to the criminal code as a whole: 

The fear that similarly situated defendants will receive disparate sentences because the 

innumerable permutations of Kansas crimes and potentially "comparable" out-of-state 

crimes for purposes of scoring their criminal histories will lead district courts to 

discordant results. However real that danger may be in determining criminal histories for 

defendants convicted of Chapter 21 crimes, it is not replicated under K.S.A. 8-1567.

To be sure, similarly situated defendants should face comparable charges for 

repeatedly driving under the influence—misdemeanors or felonies—and comparable 

punishments upon conviction. But the universe of comparable offenses available to make 

those determinations is relatively circumscribed in that only convictions dependent upon 

conduct similar to that proscribed in K.S.A. 8-1567 will make the cut. That substantially 

curtails the chances of conflicting outcomes from different district courts. So does the 

requirement that comparability of the out-of-state conviction must be determined using 

only the statutory elements of the offense measured against the elements of the violations

in K.S.A. 8-1567(a). The particular facts supporting the defendant's out-of-state 

conviction are irrelevant and cannot be considered. The use of elements alone removes all 
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kinds of line-drawing dependent upon case-specific circumstances that could readily 

foster disparate results. An elements-based comparison to the exclusion of case-specific 

circumstances also eliminates any potential constitutional defect grounded in judicial 

fact-finding usurping a defendant's right to have a jury determine aggravating facts that 

elevate the permissible punishment above a stated statutory maximum. See Apprendi, 530 

U.S. at 490; Dickey, 301 Kan. at 1021.[1]

[1]The Wetrich court expressed some reservation that Apprendi and its application 

in Mathis v. United States, 579 U.S. ___, 136 S. Ct. 2243, 2252-53, 195 L. Ed. 2d 604 

(2016), might constitutionally mandate a requirement that an out-of-state conviction used 

in calculating a defendant's criminal history be based on a statute no broader than the 

comparable Kansas crime. Wetrich, 307 Kan. at 558. The court, however, did not 

examine the constitutional issue because it resolved the case on statutory grounds. 307 

Kan. at 558. There doesn't appear to be a constitutional problem. The question in Mathis

dealt with whether the defendant's Iowa burglary conviction would qualify as a predicate 

crime to increase his sentence under the federal Armed Career Criminal Act. Under the 

Act, the defendant's crime would have to be the same as or narrower than "generic 

burglary" used as the template for determining a qualifying predicate crime. That reflects

a statutory requirement under the Act. The Court in Mathis, however, held that a federal 

district court would engage in impermissible fact-finding violating Apprendi if it 

considered the case-specific facts of the defendant's burglary conviction in determining 

whether the crime fit within the scope of a "generic burglary." The determination could 

be made only by looking at the elements of the crime as set out in the Iowa burglary 

statute. 136 S. Ct. at 2253. Under K.S.A. 2019 Supp. 8-1567(i)(3) and (j), there is no 

analogous issue, since the comparability of predicate offenses turns on their elements 

alone. And an elements-to-elements comparison requires no more than a legal conclusion

devoid of judicial fact-finding. The dissent fails to appreciate this difference when it 

suggests that Apprendi and Mathis constitutionally mandate a defendant's out-of-state 

conviction have the same or narrower elements than the comparable Kansas crime to be 

scored as a person offense for criminal history purposes. So long as the comparison rests 

on the statutory elements there is no judicial fact-finding implicating the Sixth 

Amendment right to jury trial. See Mathis, 136 S. Ct. at 2252 (Given Apprendi, a district 

court "can do no more, consistent with the Sixth Amendment, than determine what crime, 

with what elements, the defendant was convicted of."). 
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D. Applying Legislative Standard for Comparability of Predicate Offenses

In a DUI prosecution, the Kansas Legislature intends comparable out-of-state 

convictions to include those under statutes that proscribe broader conduct than K.S.A. 8-

1567. The Legislature's use of the word "similar" in K.S.A. 2019 Supp. 8-1567(j)(3) to 

describe the type of proscribed conduct qualifying an out-of-state conviction as 

comparable points to that conclusion. The legislative history, in turn, spotlights the 

precise intent and identifies Mo. Rev. Stat. § 577.010 as illustrative of the legislative 

design and the public policy behind it. As we have suggested, the proscription in Mo. 

Rev. Stat. § 577.010 is unadorned simplicity: A person is guilty if he or she "operates a 

vehicle in an intoxicated condition." The term "intoxicated condition" is separately 

defined as "under the influence of alcohol, a controlled substance, or drug, or any 

combination thereof." Mo. Rev. Stat. § 577.001.13. In 2014, the Missouri Legislature

expanded the statute, effective January 1, 2017, to cover the operation of a "vehicle" 

rather than just a "motor vehicle." Neither of those terms has been statutorily defined in

Chapter 577 governing public safety offenses.

We presume Mo. Rev. Stat. § 557.010 is broader than K.S.A. 8-1567(a) in at least 

two respects. First, the statutorily defined "intoxicated condition" required under 

Missouri law probably reflects a lesser degree of impairment than being "incapable of 

safely driving" under K.S.A. 8-1567(a)(3). As a practical matter, the gap may not be all 

that great insofar as law enforcement officers in both states often initiate traffic stops 

based on marked driving errors, such as running a red light, or a series of comparatively 

minor mistakes, such as repeatedly weaving within a lane absent some obvious external 

reason, that can be indicative of significant impairment. That's not always true, of course. 

Some DUI arrests begin with minor infractions, but those tend to be cases built on bloodalcohol tests showing the driver over the 0.08 statutory limit. Those prosecutions in either 

state require no showing of impairment to convict. See K.S.A. 8-1567(a)(1), (2); Mo. 

Rev. Stat. § 577.012.1(1). 
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But the required comparability of convictions under Mo. Rev. Stat. § 577.010 as 

predicate offenses for prosecutions under K.S.A. 8-1567 depends upon the statutory 

elements of each State's offense and any relevant statutory definitions or controlling case 

authority illuminating those elements. By that standard, Mo. Rev. Stat. § 577.010 is 

almost certainly broader based on the requisite degree of intoxication, and we presume it 

to be. 

As of January 2017, the kinds of vehicles covered under Mo. Rev. Stat. § 577.010 

are broader than those covered under K.S.A. 8-1567—a real difference in the statutes, 

although largely an academic one in the run of prosecutions and convictions. The record 

indicates Mejia's Missouri convictions preceded the amendment. But the point is relevant 

in assessing the Kansas Legislature's intent in 2018 in amending K.S.A. 8-1567(j) to 

explain comparable offenses. Because the current Missouri statute covers vehicles that 

K.S.A. 8-1567(a) does not, its elements are necessarily broader than those of a Kansas 

DUI in that respect, as well. 

For example, under the old version of Mo. Rev. Stat. § 577.010, the Missouri 

appellate courts held that a motorized bicycle qualified as a "motor vehicle." See State v. 

Slavens, 375 S.W.3d 915, 918 (Mo. App. 2012) (citing State v. LaPlante, 148 S.W.3d 

347, 350-51 [Mo. App. 2004]). By parity of reasoning, a regular bicycle ought to be 

considered a "vehicle" under the current version of Mo. Rev. Stat. § 577.010 absent a 

specialized statutory definition. Merriam-Webster's Collegiate Dictionary 1305 (10th ed. 

2001) (defining "vehicle" as "a means of carrying or transporting something" such as a 

motor vehicle or some other "mechanized equipment"). So an intoxicated bicyclist 

presumably can now be convicted of impaired driving in Missouri. The Missouri 

appellate courts do not appear to have yet ruled on the issue.[2] 
16

[2]Although drunk bicyclists don't generate the same degree of danger as drunk 

motorists—bicycles don't pack the same lethal force as motor vehicles—they do pose 

identifiable hazards. They certainly are dangerous to themselves. And erratic bicyclists 

(drunk or not) become obstacles motorists have to navigate as expedience sometimes 

overtakes prudence with unfortunately consequences.

 

Kansas, however, has a limiting statutory definition of the word "vehicle" as used 

in K.S.A. 8-1567 and for other traffic rules and offenses. As defined in K.S.A. 2019 

Supp. 8-1485, a vehicle is "every device" for transporting "any person or property. . . 

upon a highway" with three exceptions including "devices moved by human power." A 

bicycle comes within that exception. See City of Wichita v. Hackett, 275 Kan. 848, Syl. ¶ 

4, 69 P.3d 621 (2003). In short, drunk bicyclists can be convicted under Mo. Rev. Stat. § 

577.010 but not under K.S.A. 8-1567. And based purely on an elements comparison, any 

conviction under Mo. Rev. Stat. § 577.010 for conduct occurring after January 1, 2017, 

would be broader than a conviction under K.S.A. 8-1567(a) for that reason. Determining 

the type of vehicle would require case-specific fact-finding exceeding the elements of the 

offense, thereby overstepping the statutory directive in K.S.A. 2019 Supp. 8-1567(j) and 

likely contravening a defendant's constitutional jury trial rights as protected in Apprendi 

and later authority.

Despite the broad scope of Mo. Rev. Stat. § 577.010, the Kansas Legislature 

plainly intended to permit a conviction under that statute to serve as a predicate for 

enhanced charging and sentencing under K.S.A. 8-1567. That's true even at the outer 

reaches of Mo. Rev. Stat. § 577.010 proscribing conduct that would not support a DUI 

conviction in Kansas. The result isn't anomalous. A person who has been convicted in 

another jurisdiction of operating a vehicle while impaired and then violates K.S.A. 8-

1567 is likely a scofflaw, someone with a serious substance abuse problem, and very 

possibly both. Given the danger drunk drivers pose, the Legislature may deploy its police 

power to increase the punishment of those who don't care enough to control their 

antisocial behavior or otherwise lack the incentive to get professional help in controlling 
17

what they cannot on their own. See State v. Bolin, 200 Kan. 369, 370-71, 436 P.2d 978 

(1968) (Legislature validly exercises police power in defining particular acts as criminal); 

Meehan v. Kansas Dept. of Revenue, 25 Kan. App. 2d 183, 190, 959 P.2d 940 (1998) 

(Legislature acts within police powers to proscribe and set punishment for driving under 

the influence).

In keeping with the breadth of the danger and the often catastrophic losses drunk 

drivers create, we take at face value the Legislature's directive in K.S.A. 2019 Supp. 8-

1567(i)(3) that the language on comparable convictions from other jurisdictions be 

"liberally construed." To that end and consistent with the illustrative identification of Mo. 

Rev. Stat. § 577.010, we conclude the Legislature intends that an out-of-state conviction 

for an offense the elements of which entail the operation of a vehicle while the operator is 

impaired to some degree by alcohol, drugs, or both should be used to elevate the charge 

or sentence for a violation of K.S.A. 8-1567(a). Those convictions are for conduct 

"similar to" the conduct proscribed in Kansas, as the Legislature has used the phrase in 

K.S.A. 2019 Supp. 8-1567(j)(3) to identify predicate offenses. What we understand the 

Legislature to mean functionally eliminates any material Wetrich-type problem resulting 

from inconsistent determinations of comparability in the district courts, since the vast 

majority of out-of-state convictions for driving-under-the-influence offenses should be 

counted under K.S.A. 2019 Supp. 8-1567(i). Our understanding also avoids a potential 

due process problem identified in Wetrich when a sentencing statute contains 

impermissibly vague language causing district courts to rely on unmoored "guesswork 

and intuition" in making their decisions on punishment. 307 Kan. at 561 (quoting 

Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551, 2559, 192 L. Ed. 2d 569 

[2015]). 

Although we have not surveyed statutes proscribing DUI offenses in every state, 

we recognize that some of them may be considerably broader than K.S.A. 8-1567. For 

example, Arizona prohibits a person from driving if he or she "is impaired to the slightest 
18

degree" by "any combination of liquor, drugs or vapor releasing substances." Ariz. Rev. 

Stat. Ann. § 28-1381(A)(1) (2019). The appellate courts seem to have applied that 

language as written. See State v. Gill, 234 Ariz. 186, 188, 319 P.3d 248 (Ct. App. 2014) 

(defendant's admission he had been drinking combined with circumstances of collision 

sufficient to show he was "'impaired to the slightest degree'"); State v. Askren, 147 Ariz. 

436, 438, 710 P.2d 1091 (Ct. App. 1985) (no error in refusing defendant's proposed jury 

instruction that driver must be impaired "to some significant degree" to be convicted). 

We conclude the Kansas Legislature intends no dispensation from the recidivist 

provisions of K.S.A. 8-1567 for a driver with a conviction under a statute like Ariz. Rev. 

Stat. Ann. § 28-1381(A)(1).[3]

[3]The Arizona statute buffers the effect of the "slightest degree" standard for 

some drivers who take blood-alcohol tests. If the test result is 0.05 percent or less, the 

statute creates a rebuttable evidentiary presumption, the driver was not under the 

influence of alcohol. Ariz. Rev. Stat. Ann. § 28-1381(G)(1). The presumption makes no 

difference in determining whether an Arizona conviction should be treated as a predicate 

offense under K.S.A. 8-1567, since that determination turns solely on the elements of the 

Arizona offense. The evidentiary presumption does not alter the elements.

For that person with an Arizona conviction to later drive here while sufficiently 

impaired by alcohol to be incapable of doing so safely demonstrates the lesson not

learned the Legislature has sought to remedy with enhanced penalties for recidivists in 

K.S.A. 8-1567. The same would be true of convictions from other jurisdictions where the 

elements entail the operation of a vehicle not covered under K.S.A. 8-1567. The 

expansive inclusion of out-of-state convictions as predicate offenses necessarily reduces

the chances of disparate charging and sentencing decisions to a negligible level. 

In any given case, the district court's inclusion or exclusion of a particular out-ofstate conviction may be challenged in an appeal, as the State has done here. Appellate 

review provides an indirect check on disparate results across cases by providing guidance 
19

to district courts in debatable circumstances going forward. But the legislative approach 

in K.S.A. 2019 Supp. 8-1567(i) and (j) ought to minimize those debates. 

In the interest of completeness, we point out that none of the other convictions 

listed in K.S.A. 2019 Supp. 8-1567(i)(1) and (2) seems to foster any real difficulty in 

identifying "comparable" offenses from other jurisdictions to be used as predicates for 

charging and sentencing. Those convictions include:

⦁ Convictions under K.S.A. 8-1567(a) dependent upon the driver having a bloodalcohol level of at least 0.08 percent without regard to impairment. Every state has a 

driving offense based solely on the operation of a vehicle with a blood-alcohol level of 

0.08 percent or more. See Haston, Marijuana Legalization in Indiana: Amending the 

Indiana Code to Protect Motorists and Pedestrians, 51 Ind. L. Rev. 557, 563 (2018); 

Taylor and Oberman, Drunk Driving Defense, Preface (8th ed. 2019 Supp.) ("All states 

have now enacted per se statutes criminalizing those drivers with a blood-alcohol level of 

.08 percent or higher."). The universality of that offense may be attributed to a federal 

requirement that states proscribe that conduct as a condition for receiving fully funded 

highway improvement grants. See 23 U.S.C. § 163 (2016).

⦁ Convictions under K.S.A. 32-1131 for operating a vessel under the influence of 

alcohol or drugs. This may be thought of as a boating DUI insofar as the degree of 

impairment for conviction is the same as that in K.S.A. 8-1567(a). The term "vessel" 

means "any watercraft designed to be propelled by machinery, oars, paddles or wind 

action upon a sail for navigation on the water"—a comprehensive definition leaving scant

room for contesting what's covered (quite a lot) and what isn't (very little). K.S.A. 32-

1102(a). Jet skis are in; air mattresses are out. An assessment of an ostensibly comparable 

offense from another jurisdiction should not devolve into a fight over what's being 

piloted. 
20

⦁ Convictions for involuntary manslaughter or for aggravated battery when the 

defendant operated a motor vehicle in violation of K.S.A. 8-1567(a) as the mechanism 

causing death or the requisite bodily harm. A comparable out-of-state conviction would 

require a driver to cause the death of or bodily harm to another person by operating a 

vehicle in an impaired condition, as defined in that state's statutes. The determination

would typically pivot on and parallel that for the comparability of a violation under

K.S.A. 8-1567(a) and the other state's impaired driving statute. As we have already 

explained, the Legislature intends comparability to be liberally construed to reach 

offenses that proscribe the operation of almost any kind of vehicle with some degree of 

impairment. 

E. A Rejoinder to the Dissent

In closing out our discussion, we briefly respond to the dissent's contention we 

have come to an impermissible conclusion. The dissent seems to rest on three primary 

points.

First, the dissent suggests State v. Gensler, 308 Kan. 674, 423 P.3d 488 (2018), 

overrules Reese and compels the application of Wetrich in determining the use of out-ofstate convictions as predicate offenses under K.S.A. 8-1567. Neither is correct, especially 

in light of the amendment in K.S.A. 2019 Supp. 8-1567(j) designed to avoid just that 

result. 

The Gensler court addressed when a DUI conviction under a Kansas municipal 

ordinance could be treated as a predicate offense—requiring interpretation of different 

statutory language in K.S.A. 8-1567. As provided in K.S.A. 2017 Supp. 8-1567(i)(1), a

municipal conviction counted if the ordinance "'prohibits the acts [K.S.A. 8-1567(a)]

prohibits.'" The court found the phrase to be ambiguous and in keeping with the rule of 

lenity construed it to mean proscriptions in the ordinance could not be more expansive 
21

than those in K.S.A. 8-1567(a). If they were, then any conviction under the ordinance 

could not serve as a predicate offense in a prosecution under K.S.A. 8-1567. 308 Kan. at 

681-82. In reaching that conclusion, the court analogized the issue of statutory 

construction to the one the United States Supreme Court dealt with in Descamps v. 

United States, 570 U.S. 254, 257-58, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), in 

construing the Armed Career Criminal Act. The court then offered an extended analysis 

of the elements of the Wichita DUI ordinance under which Gensler had been convicted 

and concluded the measure proscribed more conduct that K.S.A. 8-1567(a). The 

ordinance, therefore, did not come within the "prohibits the acts" standard in K.S.A. 2017 

Supp. 8-1567(i)(1), and Gensler's municipal conviction did not qualify as a predicate 

offense. Gensler, 308 Kan. at 683-85. The dissent also cites a flock of other cases that 

concluded a conviction under the Wichita DUI ordinance could not be treated as a 

predicate offense. 

But all of that is inapposite to the issue here. The language governing convictions 

for Kansas municipal ordinances did not refer to "comparable" offenses or "similar

conduct" as the Legislature has now directed for identifying qualifying out-of-state 

convictions. The Gensler court noted that difference in language and the then-recent 

amendments to K.S.A. 8-1567(i) and (j), see L. 2018, ch. 106, § 13, but recognized they 

were inapplicable to the question of statutory construction in that case. 308 Kan. at 679.

So nothing in the substantive ruling in Gensler or in the other cases the dissent 

cites conflicts with our treatment of Mejia's Missouri convictions. More to the dissent's 

point, however, the Gensler court did not mention Reese, let alone purport to distinguish 

or overrule it. See United States v. Rodriguez, 311 F.3d 435, 439 (1st Cir. 2002) 

("Implied overrulings are disfavored in the law."). The court simply interpreted the 

statutory language of one part of K.S.A. 8-1567—an exercise that in no way called into 

question the division Reese drew between that statute and Chapter 21. The Gensler 

opinion mentions Wetrich only twice: first as an example of a "sentencing classification 
22

question" decided on statutory rather than constitutional grounds; and then for the wellaccepted proposition that courts avoid reaching constitutional issues if cases can be 

decided on other grounds. 308 Kan. at 678-79. The Gensler court never intimates, let 

alone holds, that Wetrich's the-same-as-or-narrower-than standard for determining the 

criminal histories of defendants convicted of Chapter 21 felonies should be reflexively

applied to K.S.A. 8-1567 or, more particularly, to out-of-state DUI convictions.

The dissent next seems to say that our conclusion invites impermissible judicial 

fact-finding, contrary to Apprendi, Dickey, and related case authority. We fail to see how 

that can be correct. As we have explained, the required comparison of an out-of-state 

conviction to K.S.A. 8-1567(a) turns solely on the statutory elements of the respective 

offenses. The facts underlying a given conviction are irrelevant to the determination and 

should not be considered. A statutory elements-to-elements comparison is purely a legal 

question. In short, the legislative method for determining comparable out-of-state 

convictions does not implicate a defendant's Sixth Amendment jury trial rights. We have 

acknowledged an entirely different constitutional due process concern—district courts 

might come to different legal conclusions about the comparability of a given state's DUI 

statute. But, as we have said, we see that concern as largely academic because the 

Legislature intends to treat any out-of-state conviction for operating some kind of vehicle 

while the operator is impaired to some degree as "similar conduct" and, thus, a predicate 

offense under K.S.A. 2019 Supp. 8-1567(i)(3).

Finally, the dissent chides us for treating K.S.A. 2019 Supp. 8-1567(i) and (j) as 

ambiguous and looking at legislative history to resolve the ambiguity. In doing so, we 

have simply followed the Kansas Supreme Court's lead in construing the word 

"comparable" and in parsing the meaning of comparability, as we have already explained. 

But even if we were to confine our analysis to the statutory language of K.S.A. 8-1567, 

the result would be the same. Again, as we have said, the comparability of an out-of-state 

conviction as a predicate offense under K.S.A. 2019 Supp. 8-1567(i)(3) is informed by 
23

the criteria in K.S.A. 2019 Supp. 8-1567(j). Pertinent here, the predicate conviction need 

only be for "similar conduct" to the proscription in K.S.A. 2019 Supp. 8-1567(a). The 

phrase naturally lends itself to both broader activity and narrower activity. Those 

statutory pronouncements, then, channel the identification of predicate offenses to the 

result we have otherwise reached. That is the most reasonable construction of the 

governing statutory language, with or without the obvious reinforcement found in the 

legislative history. 

F. Conclusion

The State properly relied on three convictions Mejia had for driving under the 

influence in Missouri in violation of Mo. Rev. Stat. § 577.010 to charge him with a 

felony violation of K.S.A. 8-1567, even though the Missouri statute proscribes a broader 

range of conduct. Mejia's argument for and the district court's reliance on Wetrich to 

discard those convictions are misplaced. The Wetrich decision addresses a sentencing 

concern endemic to Chapter 21 because of the sheer number of crimes defined there. The 

concern is not replicated under K.S.A. 2019 Supp. 8-1567, especially given the 

Legislature's clear intent to expansively define the out-of-state convictions that constitute 

predicate offenses for charging and sentencing recidivists like Mejia. 

We, therefore, find the district court erred in dismissing the felony DUI charge 

against Mejia. The district court should have recognized his Missouri convictions under 

Mo. Rev. Stat. § 577.010 for purposes of enhancing the charge from a misdemeanor to a 

felony. 

We reverse and remand to the district court with directions to reinstate the felony 

DUI charge against Mejia and for further proceedings consistent with this opinion.
24

* * *

SCHROEDER, J., dissenting: I respectfully dissent. At the outset I acknowledge the 

nature and purpose of Kansas' DUI laws increasing punishment scheme for recidivist 

offenders. Even so, the majority's reasoning and result rest on two faulty assumptions. 

First, the Wetrich line of cases is inapplicable to Kansas' DUI law, see State v. Wetrich, 

307 Kan. 552, 412 P.3d 984 (2018), and, second, the meaning of the word "comparable" 

under K.S.A. 2019 Supp. 8-1567(i)(3) is ambiguous on its face. In finding Wetrich is 

inapplicable to these facts, the majority ignores our Supreme Court's recent decision in 

State v. Gensler, 308 Kan. 674, 683, 423 P.3d 488 (2018). And the majority

unnecessarily invokes legislative intent by finding the word "comparable" is ambiguous. 

The majority's analysis should have started and ended with the text of Kansas' DUI law.

In Gensler, the district court used Gensler's previous DUI convictions under a

Wichita municipal ordinance to enhance his state case to a felony. The applicable 

subsections of K.S.A. 2017 Supp. 8-1567 for determining whether Gensler's prior 

municipal convictions were comparable state offenses provided, in pertinent part:

"'(i) For the purpose of determining whether a conviction is a first, second, third, 

fourth or subsequent conviction in sentencing under this section:

(1) Convictions for a violation of this section, or a violation of an ordinance of 

any city or resolution of any county which prohibits the acts that this section prohibits, or 

entering into a diversion agreement in lieu of further criminal proceedings on a complaint 

alleging any such violations, shall be taken into account, but only convictions or 

diversions occurring on or after July 1, 2001.

. . . .

(3) "conviction" includes: . . . (B) conviction of a violation of an ordinance of a 

city in this state, a resolution of a county in this state or any law of another state which 

would constitute a crime described in subsection (i)(1) or (i)(2).'" Gensler, 308 Kan. at 

679.
25

The Gensler court then reviewed with approval the categorical approach and 

modified categorical approach as applied to the revised Kansas Sentencing Guidelines 

Act, K.S.A. 2019 Supp. 21-6801 et seq., in State v. Dickey, 301 Kan. 1018, 1039, 350 

P.3d 1054 (2015) (Dickey I), for the purpose of determining whether a prior municipal 

DUI conviction counted as a prior DUI conviction under K.S.A. 8-1567. Gensler, 308

Kan. at 681-83; see Descamps v. United States, 570 U.S. 254, 261-64, 269, 133 S. Ct. 

2276, 186 L. Ed. 2d 438 (2013) (developing categorical and modified categorical 

approach); State v. Schrader, 308 Kan. 708, 712, 423 P.3d 523 (2018) (noting Gensler

approved of categorical and modified categorical approach in DUI context).

The Gensler court interpreted K.S.A. 2017 Supp. 8-1567(i)(1)'s language—"which 

prohibits the acts that this section prohibits"—to limit prior municipal DUI convictions 

usable as sentencing enhancements to those with elements the same as, or narrower than, 

K.S.A. 2017 Supp. 8-1567. 308 Kan. at 680-81. Applying the categorical approach, 

Gensler found the Wichita DUI ordinance's definition of "vehicle" was an indivisible 

element of the crime and, because the definition criminalized a broader range of conduct 

than K.S.A. 2017 Supp. 8-1567, it could not be used to enhance Gensler's state case to a 

felony. 308 Kan. at 683-85. The Gensler court noted: "To determine the precise nature of 

the 'vehicle' Gensler was operating would require a sentencing court to engage in its own 

fact-finding, which is impermissible." 308 Kan. at 685; see Descamps, 570 U.S. at 269

(sentence enhancement under Armed Career Criminal Act would "raise serious Sixth 

Amendment concerns if it went beyond merely identifying a prior conviction").

The language under K.S.A. 2017 Supp. 8-1567(i)(1) interpreted by the Gensler 

court remains the same under the current statute. See K.S.A. 2019 Supp. 8-1567(i)(1). 

But the Legislature has amended K.S.A. 2019 Supp. 8-1567(i)(3)(B) to provide: 

"'conviction' includes: . . . conviction of a violation of . . . any law of another jurisdiction 

that would constitute an offense that is comparable to the offense described in subsection

(i)(1) or (i)(2)." (Emphasis added.) Under K.S.A. 2019 Supp. 8-1567(j)(1)-(3), the 
26

Legislature has also added three criteria for courts to apply when determining whether

another jurisdiction's law is comparable.

Despite these changes to Kansas' DUI law, the Gensler court's outright approval of 

the Wetrich line of cases in the comparability analysis for DUI offenses must be 

followed. The Kansas Supreme Court has consistently followed Gensler, and our court 

has done the same. See, e.g., Schrader, 308 Kan. at 708; State v. Lamone, 308 Kan. 1101, 

1103-04, 427 P.3d 47 (2018); State v. Ramos, No. 118,080, 2018 WL 4263371, at *2

(Kan. App. 2018) (unpublished opinion). Prior to Gensler other panels of this court 

followed the Wetrich line of cases while applying the previous version of K.S.A. 2016 

Supp. 8-1567. See State v. Navarro, No. 117,563, 2018 WL 1545604, at *3 (Kan. App. 

2018) (unpublished opinion) (finding we are duty bound to follow Wetrich and its 

companion cases); State v. Chapman, No. 117,063, 2018 WL 671908, at *1 (Kan. App. 

2018) (finding we are bound to follow Apprendi and its line of cases). Our court is bound 

by Kansas Supreme Court precedent absent some indication the court is departing from 

its position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017).

In light of Gensler, the majority's reliance on State v. Reese, 300 Kan. 650, 654, 

333 P.3d 149 (2014), on the narrow scope of targeted behavior in DUI-type offenses, and 

on the enhanced penalties for recidivists under K.S.A. 2019 Supp. 8-1567(b)(1)(A)-(E)

for its position that the Wetrich line of cases do not apply to Kansas' DUI law is 

unpersuasive. See slip op. at 4-5, 7, 16-17. The Gensler court applied Wetrich's statutory 

framework despite these considerations, and I am bound to do the same.

K.S.A. 2019 Supp. 8-1567(j)(1) and (2) instruct courts to consider the out-ofjurisdiction offense's name and elements. And under K.S.A. 2019 Supp. 8-1567(j)(3), 

courts must also consider "whether the out-of-jurisdiction offense prohibits similar 

conduct to . . . the closest approximate Kansas offense." The majority reasons the criteria 

under subsections (j)(2) and (3) must be considered together and, therefore, "the elements 
27

need only be 'similar' to the elements of DUI in K.S.A. 2019 Supp. 8-1567(a) or the other 

listed offenses." Slip op. at 9. The majority's interpretation, however, invites 

impermissible judicial fact-finding in violation of Apprendi v. New Jersey, 530 U.S. 466, 

120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by giving courts broad discretion to determine 

whether a person committed the out-of-jurisdiction offense in a manner "similar enough" 

to K.S.A. 2019 Supp. 8-1567. "Similar enough" is not the same as the "identical to or 

narrower than" elements-based approach. See Wetrich, 307 Kan. at 562. Given our duty 

to apply statutes in a constitutional manner and under existing caselaw, subsections (j)(2) 

and (3) of K.S.A. 2019 Supp. 8-1567 should be interpreted under the identical to or 

narrower than elements-based approach. See Blue Cross & Blue Shield of Kansas, Inc. v. 

Praeger, 276 Kan. 232, 276-77, 75 P.3d 226 (2003) (courts have duty to construe statutes 

in constitutional manner if possible).

Nothing in the plain language of K.S.A. 2019 Supp. 8-1567(j)(2)-(3) prevents a 

court from following the analyses in Gensler and Wetrich. Although subsection (j)(2) 

requires courts to look at the elements of the prior conviction, it does not direct courts to 

look at the elements in any particular manner. Subsection (j)(3) directs courts to consider

whether the out-of-jurisdiction offense prohibits similar conduct to K.S.A. 2019 Supp. 8-

1567. However, it does not provide any parameters for courts to gauge what "similar 

conduct" is prohibited. The majority has defined "'similar'" as "'[r]elated in appearance or 

nature; alike though not identical'" to further define "'comparable.'" Slip op. at 10. I see 

nothing in the definition of "similar" that provides something "broader" is comparable. 

See American Heritage College Dictionary 1292 (4th ed. 2004). Rather, something 

"narrower" could be "alike though not identical" to K.S.A. 2019 Supp. 8-1567. And 

something "identical to" K.S.A. 2019 Supp. 8-1567 would be "[r]elated in appearance or 

nature."

Thus, a district court can determine whether similar conduct is prohibited by using 

only the elements of the prior conviction to determine whether the prohibited conduct is 
28

identical to or narrower than K.S.A. 2019 Supp. 8-1567. The majority openly 

acknowledges the elements of Missouri's DWI offense are broader than Kansas' DUI 

offense. In my view, the identical to or narrower than approach must be followed to avoid 

running afoul of Apprendi and its progeny.

The district court's reliance on Wetrich in its written order reflects this approach. It 

concluded the elements of the Missouri DWI offenses were not the same as, or narrower 

than, the elements of K.S.A. 2019 Supp. 8-1567; thus, Mejia's convictions under the 

Missouri statute could not be used to enhance his DUI charge to a felony. The district 

court's interpretation of K.S.A. 2019 Supp. 8-1567(j) reconciled the criteria under 

subsections (j)(1)-(3) as a whole, consistent with their plain meaning. Although the 

district court resolved the classification of Mejia's prior Missouri DWI convictions as 

matter of statutory interpretation, it recognized the "constitutional principles announced 

in Apprendi and its progeny . . . apply." See Wetrich, 307 Kan. at 558-59 (resolving 

scoring of out-of-state burglary conviction as matter of statutory interpretation); State v. 

Dickey, 305 Kan. 217, 221, 380 P.3d 230 (2016) (Dickey II) (classification of prior 

crimes has "thick overlay of constitutional law"); see also State v. Coleman, 311 Kan. 

305, Syl. ¶ 2, 460 P.3d 368, 375 (2020) (finding pre-KSGA crimes comparable to current 

KSGA offenses where an earlier crime's elements are identical to, or narrower than, the 

applicable current offense). Therefore, under Gensler, the district court correctly relied on 

Wetrich's statutory framework and Apprendi's constitutional considerations when it found 

Mejia's prior Missouri DWI convictions could not be used to enhance his DUI charge to a 

felony.

The majority avoids Wetrich's reach by finding the word "comparable" in K.S.A. 

2019 Supp. 8-1567(i)(3) is ambiguous and invokes legislative intent. Slip op. at 10-11. 

The majority incorrectly reasons the word "comparable" is ambiguous on its face because 

Wetrich found a similar phrase—"comparable offenses"—ambiguous as used in K.S.A. 

2017 Supp. 21-6811(e). Slip op. at 10; see 307 Kan. at 559. But unlike the statute in 
29

Wetrich, K.S.A. 2019 Supp. 8-1567(j) sets out specific statutory criteria to determine 

whether a prior conviction is comparable.

There is no ambiguity in the criteria for determining whether an offense is 

comparable under K.S.A. 2019 Supp. 8-1567(i)(3). Rather, the plain language of 

subsection (j)(3) potentially invites courts to engage in fact-finding beyond the existence 

of a person's prior conviction. Still, courts can avoid this problem by doing as the district 

court did here. The Legislature could have added language within K.S.A. 2019 Supp. 8-

1567's text requiring courts to include an offender's prior conviction under Mo. Rev. Stat. 

§ 577.010 in his or her criminal history. In my reading of Apprendi and the line of cases 

that follow, nothing would prevent the Legislature from explicitly enumerating the 

municipal ordinances and/or out-of-state statutes it wants counted as prior DUI 

convictions. The Legislature proved itself quite capable of spelling these out in the 

preamble to the session law. But it did not include them in the text of the statute itself. 

Consequently, the Legislature's stated intent in the preamble to the session law to include 

out-of-jurisdiction offenses as comparable offenses "regardless of whether the elements 

are identical to or narrower than the corresponding Kansas offense" is irrelevant. See L. 

2018, ch. 106, Preamble. The text of K.S.A. 2019 Supp. 8-1567 controls over the session 

law. "We should not seek ambiguity where none exists merely for the purpose of 

invoking the rule of liberal construction." United States Fid. & Guar. Co. v. Western Cas.

& Surety Co., 195 Kan. 603, 605, 408 P.2d 596 (1965).

For these reasons, I would find Mejia's prior Missouri DWI convictions cannot be 

used to enhance his charge to a felony DUI and the district court's dismissal of the charge 

at the preliminary hearing was proper.