inline"> IN THE SUPREME COURT OF THE STATE OF KANSAS No. 115,451 STATE OF KANSAS, Appellee, v. STEPHANIE R. LAMONE, Appellant. SYLLABUS BY THE COURT A prior municipal court conviction for driving under the influence (DUI) under a Wichita ordinance prohibiting operation of a vehicle under certain circumstances, when the element of "vehicle" is defined more broadly than the "vehicle" element in the state DUI statute, cannot be used to elevate a later violation of the state statute to a felony. Review of the judgment of the Court of Appeals in 54 Kan. App. 2d 180

399 P.3d 235

 (2017).
Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed September 28, 2018.
Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is
vacated, and the case remanded with directions.


        C. Ryan Gering, of Hulnick, Stang, Gering & Leavitt, P.A., of Wichita, was on the brief for
appellant.


        Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.


The opinion of the court was delivered by




                                                     1
        BEIER, J.: This case involves defendant Stephanie R. Lamone's sentence for
driving under the influence (DUI) based on two prior convictions for DUI.


        The two DUI convictions were Wichita Municipal Court convictions. Lamone
argues that the Wichita DUIs cannot be used to enhance her current state DUI sentence,
because the Wichita ordinance prohibits a broader range of conduct than the Kansas
statute. This court has already addressed and resolved this issue. As detailed in our
decision in State v. Gensler,

308 Kan. 674

423 P.3d 488

 (2018), we hold that a
conviction based on the ordinance cannot be used to enhance a sentence for a DUI
conviction under K.S.A. 2017 Supp. 8-1567. See also State v. Fisher,

308 Kan. 715

423 P.3d 528

 (2018); State v. Mears,

308 Kan. 719

423 P.3d 467

(2018). We vacate
Lamone's sentence and remand this case to the district court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On July 3, 2014, the State charged Lamone with two alternative counts of felony
driving under the influence, which occurred on February 12, 2014. Lamone had two prior
convictions for driving while under the influence under Wichita's Municipal Code, one
on September 2, 2010, and the second on December 15, 2011.

The Wichita ordinance governing DUIs at the time of those convictions read in
part:

"(a) No person shall operate or attempt to operate any vehicle within the city
while:

(1) The alcohol concentration in the person's blood or breath, as
measured within three hours of the time of operating or attempting to operate a
vehicle is .08 or more;

2
(2) Under the influence of alcohol to a degree that renders the person
incapable of safely driving a vehicle;

(3) The alcohol concentration in the person's blood or breath as shown by
any competent evidence is .08 or more. For the purposes of this section, 'any
competent evidence' includes (1) Alcohol concentration tests obtained from
samples taken three hours or more after the operation or attempted operation of a
vehicle, and (2) readings obtained from a partial alcohol concentration test on a
breath testing machine;

(4) Under the influence of any drug or combination of drugs to a degree
that renders the person incapable of safely driving a vehicle; or

(5) Under the influence of a combination of alcohol and any drug or
drugs to a degree that renders the person incapable of safely driving a vehicle."
Wichita Municipal Ordinance (W.M.O.) 11.38.150.

Lamone moved to dismiss the charges, arguing the Wichita DUIs could not be
used as predicates to establish felony DUI under K.S.A. 2017 Supp. 8-1567.

After hearing argument on the motion, the district court judge reviewed the
citation and the disposition sheet from the previous two Wichita DUIs. The documents
alleged that Lamone was driving a Toyota Camry while under the influence of alcohol in
both prior convictions. Based on these documents, the district judge denied Lamone's
motion to dismiss.

The case proceeded to a bench trial on stipulated facts, including:

"In this case, the State admitted for purposes of this motion Exhibit 1, which are
the certified municipal court records from Defendant's 2009 conviction, and Exhibit 2,
3
which are the certified municipal court records from Defendant's 2011 conviction. The
charging document in Exhibit 1 alleges that on May 23, 2009 the Defendant drove a blue
Toyota Camry under the influence of alcohol to the [degree] she could not safely operate
her vehicle. She was also charged in that document with running a red light. The charging
document in Exhibit 2 alleges that on August 10, 2011 the Defendant drove [a] silver
Toyota Camry under the influence of alcohol with a blood alcohol concentration of .208.
She was also charged in that case with running a red light."

At the bench trial, the judge noted Lamone's continuing objection to the use of the
Wichita DUIs and found Lamone guilty "based on review of the stipulation of facts."

Before sentencing, Lamone objected to including the Wichita DUIs in her criminal
history score. The district judge overruled the objection, incorporating by reference his
prior rulings on the issue.

On appeal, a Court of Appeals panel held that Lamone's two previous DUIs could
not be considered past convictions under K.S.A. 2016 Supp. 8-1567. State v. Lamone,

54 Kan. App. 2d 180

, 194-95,

399 P.3d 235

(2017). The panel vacated Lamone's sentence
and remanded her case to the district court for resentencing. 54 Kan. App. 2d at 194-95.

This court granted the State's petition for review.

DISCUSSION

K.S.A. 2017 Supp. 8-1567(i)(1) establishes the criteria for determining whether a
prior DUI conviction may be counted for determining whether a new DUI conviction is a
first, second, third, fourth, or subsequent DUI conviction. Convictions for a "violation of
an ordinance of any city . . . which prohibits the acts that [K.S.A. 8-1567] prohibits" are
counted as prior DUIs.

4
Our decision in Gensler, 308 Kan. at 685, holds that a prior municipal DUI
conviction under the version of W.M.O. 11.38.150 in effect at the time of Lamone's
convictions does not count as a prior DUI under K.S.A. 2017 Supp. 8-1567(i)(1), because
the ordinance defines "vehicle" more broadly than the state statute and thus prohibits a
broader range of conduct. The broader definition means that the Wichita ordinance does
not prohibit the acts that K.S.A. 2017 Supp. 8-1567 prohibits.

Gensler dictates the outcome of this case and compels a decision in Lamone's
favor. Lamone's 2010 and 2011 Wichita municipal DUIs cannot be used for sentencing
purposes for her current DUI prosecuted under K.S.A. 2017 Supp. 8-1567. The State has
not presented new arguments that cause us to reconsider Gensler, and there is nothing
different about Lamone's case that leads us to think otherwise.

CONCLUSION

We affirm the Court of Appeals decision vacating Lamone's sentence and remand
the case for resentencing.

***

STEGALL, J., dissenting: I dissent from the result and rationale in this case for the
same reasons I dissented in State v. Gensler,

308 Kan. 674

423 P.3d 488

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