May 1st. The Kansas Supreme Court has issued its opinion in State v. Cott (No. 97,955) a case arising from a DUI prosecution. In a unanimous decision, written by Justice Eric Rosen, the Court ruled that DUI (which carries a the sentencing enhancement where a child under 14 is in the car) and the crime of aggravated endangerment of a child could both be charged in the same case.
Nicole Cott was pulled over and tested for alcohol after a State Trooper noticed her driving erratically. She tested above the legally allowed blood-alcohol level. At the time of her arrest, her four-year-old son was asleep in the front seat of the car (and not in a child-safety seat). Cott was ultimately charged with DUI, which carries a 30 day sentencing enhancement if a child under 14 is present in the car and with aggravated endangerment of a child, a felony.
The District Court held that the sentencing enhancement for DUI was a more specific version of the felony charge, since the felony charge was based on the same set of facts. The District Court held that to prove the felony charge, the State had to show that Cott did something to endanger her son, i.e. DUI, which made DUI with a sentencing enhancement when committed with a child in the car more closely match the circumstances of the case. As a result, the felony charge was dismissed.
The State appealed and won in the Court of Appeals which held that the two statutes were compatible with one another and described different crimes. Its ruling was largely based on a Virginia case containing similar circumstances. In today’s ruling the Kansas Supreme Court affirms the decision of the Court of Appeals based on an analysis of the construction of the two statutes. It does not reject the Virginia case, but seems to build a firmer foundation for ultimately the same decision.
In its conclusion, the Kansas Supreme Court finds that the two statutes at issue describe different prohibited behaviors. One prohibits DUI. The other prohibits reckless endangerment of a child. That the same conduct can give rise to charges under both laws is not enough to block prosecution under one of them.
Cott’s case was therefore remanded back to the District Court for a new preliminary hearing.