Sentence in drunken-driving death turns on single word: ‘and’

? Just how long a man convicted of DUI four times and later of involuntary manslaughter in the drunken-driving death of a Harvey County woman will spend in prison is likely to come down to a single word: “and.”

In July 2001, Scott Manbeck was headed west on an Allen County highway, with 30 cans of beer inside his station wagon. He crossed the center line and collided head-on with a car carrying a Harvey County couple, Virgil and Joyce Hiebert.

Joyce Hiebert died in the accident. Manbeck, whose blood-alcohol level was recorded at more than twice the legal limit, pleaded guilty to involuntary manslaughter and was sentenced to 13 years in prison.

But his lawyer, James Pratt, noticed a discrepancy in state law concerning DUI punishment between the words “and” and “or.” Manbeck was charged with and pleaded guilty to being under the influence of alcohol or drugs, but he was sentenced under a 1996 law for being under the influence of alcohol and drugs.

The sentencing law converted Manbeck’s four previous DUI convictions from misdemeanors to felonies, resulting in a sentence of about 13 years. Had the DUIs counted only as misdemeanors, Manbeck would have received a sentence of a little less than four years.

Pratt argued before a district court judge in Iola that his client was being charged with one crime but sentenced for another. “Words are important, and I think the word here means one thing,” Pratt said.

Although Pratt’s argument failed to prevail at the district court level, the Kansas Court of Appeals agreed with Pratt.

The appeals court stated: “The clear language of the statute indicates the Legislature intended to enhance the sentence for impaired driving by repeat offenders, but the plain language of the statute applies the enhanced penalties only to those drivers who are convicted of being under the influence of alcohol and drugs. It is quite apparent that the Legislature is aware of the difference resulting from the use of the disjunctive ‘or’ and the conjunctive ‘and.”‘

The Kansas Supreme Court heard an appeal of the appeals court decision last month but has yet to issue an opinion.

Meanwhile, the Kansas County & District Attorneys Assn. has asked the Legislature to introduce a bill amending the law — replacing the “and” with “and/or.”