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23 Washburn L.J. 421 (1983-1984)
Criminal Law: Reckless Driving Is Not a Lesser Included Offense of Driving While under the Influence of Alcohol

handle is hein.journals/wasbur23 and id is 439 raw text is: Criminal Law: Reckless. Driving Is Not a Lesser
Included Offense of Driving While Under the
Influence of Alcohol
In State v. Mourning, 233 Kan. 678, 664 P.2d 857 (1983), the Kansas
Supreme Court holds that reckless driving' is not a lesser included offense2 of
driving while under the influence of alcohol.3 Applying the test provided by
Kansas Statutes Annotated (K.S.A.) § 21-3107(2)(d)4 the court determines
reckless driving requires proof of an additional element5 not required to prove
driving while under the influence of alcohol.6
The doctrines of lesser included offenses and double jeopardy have been
closely related.7 The double jeopardy doctrine has had deep and strong his-
torical roots8 as evidenced by its ancient Latin maxim, Nemo debet bis revari
pro una et eadem     causa.9 Historically, double jeopardy has prohibited re-
1. See infra notes 62-68 and accompanying text.
2. See infra notes 39-53 and accompanying text.
3. See infra notes 69-75 and accompanying text.
4. See infra note 49.
5. Reckless driving requires proof the vehicle was driven in a specific manner, i.e., in a
willful or wanton disregard for the safety of others. See infra notes 62-68 and accompanying text.
Driving while under the influence of alcohol requires proof not that the car was driven in a spe-
cific manner, but rather, proof the car was driven by someone in a specific condition, i.e., while
under the influence of alcohol. See infra notes 69 & 74.
6. Lesser issues decided were: (1) the two offenses of reckless driving and driving while
under the influence of alcohol are not the same offense, see infra notes 17-37 and accompanying
text; (2) the double jeopardy provision KAN. STAT. ANN. § 21-3108(2)(a) (1981), was not violated
because reckless driving required proof of a fact not required by driving while under the influence
of alcohol, and vice-versa, see infra notes 87-96 and accompanying text; (3) KAN. STAT. ANN.
§ 21-3108(2)(a) (1981) did not become operative because by pleading guilty to reckless driving no
evidence was introduced, see infra note 26.
7. When courts speak of lesser included offenses they are considering multiple offenses
which all arose from one act or transaction or course of conduct. Because one cannot be
twice tried for the same crime, neither can he be twice tried for the same conduct unless
it resulted in separate crimes.
Note, The Doctrine ofLesser Included Offenses in Kansas, 15 WASHBURN L.J. 40, 54 (1976).
8. Detailed background of double jeopardy doctrine tracing back to the Digest o/Justinian
(the authoritative compilation of Roman law arranged by the Byzantine emperor Justinian, 527-
SOCIAL POLICY 1-37 (1960) and Sigler, A History ofDouble Jeopardy, 7 AM. J. LEGAL HIST. 283
(1963). For a discussion of the history of common law double jeopardy see Exparte Lange, 85
U.S. 163, 168-73 (1873) (citing authorities such as Coke and Blackstone, the Court demonstrated
how well settled in American and English law was the principle that no man could be twice
lawfully punished for the same offense); see also Bartkus v. Illinois, 359 U.S. 121, 150-55 (1959)
(Black, J., dissenting) (The fear of governmental power to try people twice for the same conduct
remained alive even through the Dark Ages and into England's twelfth century where St. Thomas
Becket and King Henry II fought over Henry's demands for clerics convicted in Church Courts to
be turned over to government for further punishment. Early settlers brought the double jeopardy
doctrine to this country as part of their heritage. This was evidenced by The Body of Liberties of
Massachusetts (1641), Clause 42: No man shall be twise sentenced by Civill Justice for one and
the same Crime, offence, or Trespasse.).
9. No one ought to be twice tried for the same cause. See Spring, The Effect of Former
Prosecutions. Something Old and Something New Under Kan. Stat. Ann. Sec. 21-3108, 9 WASH-
BURN L.J. 179, 180 (1970). See also State v. Bloomer, 197 Kan. 668, 421 P.2d 58 (1966), cert.
denied, 387 U.S. 911 (1967). The principle that a person could not be put twice in jeopardy for
different degrees of the same offense which arose from a single act was codified in KAN. STAT.
ANN. § 21-3108(2)(a) (1981):
A prosecution is barred if the defendant was formerly prosecuted for a different crime, or
for the same crime based upon different facts, if such former prosecution . . . was for a

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