HB 2232--
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Session of 1997
HOUSE BILL No. 2232
By Committee on Judiciary
2-5
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8 AN ACT concerning expungement; relating to disclosure thereof to the
9 securities commissioner; amending K.S.A. 1996 Supp. 12-4516 and 21-
10 4619 and repealing the existing sections; also repealing K.S.A. 1996
11 Supp. 21-4619b.
12
13 Be it enacted by the Legislature of the State of Kansas:
14 Section 1. K.S.A. 1996 Supp. 12-4516 is hereby amended to read as
15 follows: 12-4516. (a) Except as provided in subsection (b), any person
16 who has been convicted of a violation of a city ordinance of this state may
17 petition the convicting court for the expungement of such conviction if
18 three or more years have elapsed since the person:
19 (1) Satisfied the sentence imposed; or
20 (2) was discharged from probation, parole or a suspended sentence.
21 (b) No person may petition for expungement until five or more years
22 have elapsed since the person satisfied the sentence imposed or was dis-
23 charged from probation, parole, conditional release or a suspended sen-
24 tence, if such person was convicted of the violation of a city ordinance
25 which would also constitute:
26 (1) Vehicular homicide, as defined by K.S.A. 21-3405, and amend-
27 ments thereto;
28 (2) a violation of K.S.A. 8-1567, and amendments thereto;
29 (3) driving while the privilege to operate a motor vehicle on the public
30 highways of this state has been canceled, suspended or revoked, as pro-
31 hibited by K.S.A. 8-262, and amendments thereto;
32 (4) perjury resulting from a violation of K.S.A. 8-261a, and amend-
33 ments thereto;
34 (5) a violation of the provisions of the fifth clause of K.S.A. 8-142,
35 and amendments thereto, relating to fraudulent applications;
36 (6) any crime punishable as a felony wherein a motor vehicle was
37 used in the perpetration of such crime;
38 (7) failing to stop at the scene of an accident and perform the duties
39 required by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto;
40 (8) a violation of the provisions of K.S.A. 40-3104, and amendments
41 thereto, relating to motor vehicle liability insurance coverage; or
42 (9) a violation of K.S.A. 21-3405b, and amendments thereto.
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2 -(c) When a petition for expungement is filed, the court shall set a
3 date for a hearing thereon and shall give notice thereof to the prosecuting
4 attorney. The petition shall state: (1) The defendant's full name; (2) the
5 full name of the defendant at the time of arrest and conviction, if
different
6 than the defendant's current name; (3) the defendant's sex, race, and date
7 of birth; (4) the crime for which the defendant was convicted; (5) the
8 date of the defendant's conviction; and (6) the identity of the convicting
9 court. A municipal court may prescribe a fee to be charged as costs for a
10 person petitioning for an order of expungement pursuant to this section.
11 Any person who may have relevant information about the petitioner may
12 testify at the hearing. The court may inquire into the background of the
13 petitioner and shall have access to any reports or records relating to the
14 petitioner that are on file with the secretary of corrections or the Kansas
15 parole board.
16 (d) At the hearing on the petition, the court shall order the petiti-
17 oner's conviction expunged if the court finds that:
18 (1) The petitioner has not been convicted of a felony in the past two
19 years and no proceeding involving any such crime is presently pending
20 or being instituted against the petitioner;
21 (2) the circumstances and behavior of the petitioner warrant the
22 expungement; and
23 (3) the expungement is consistent with the public welfare.
24 (e) When the court has ordered a conviction expunged, the order of
25 expungement shall state the information required to be contained in the
26 petition. The clerk of the court shall send a certified copy of the order of
27 expungement to the Kansas bureau of investigation which shall notify the
28 federal bureau of investigation, the secretary of corrections and any other
29 criminal justice agency which may have a record of the conviction. After
30 the order of expungement is entered, the petitioner shall be treated as
31 not having been convicted of the crime, except that:
32 (1) Upon conviction for any subsequent crime, the conviction that
33 was expunged may be considered as a prior conviction in determining the
34 sentence to be imposed;
35 (2) the petitioner shall disclose that the conviction occurred if asked
36 about previous convictions (A) in any application for employment as a
37 detective with a private detective agency, as defined by K.S.A. 75-7b01,
38 and amendments thereto; as security personnel with a private patrol op-
39 erator, as defined by K.S.A. 75-7b01, and amendments thereto; with a
40 criminal justice agency, as defined by K.S.A. 22-4701, and amendments
41 thereto; or with an institution, as defined in K.S.A. 76-12a01, and amend-
42 ments thereto, of the department of social and rehabilitation services; (B)
43 in any application for admission, or for an order of reinstatement, to the
44 practice of law in this state; (C) to aid in determining the petitioner's
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2 -qualifications for employment with the Kansas lottery or for work in sen-
3 sitive areas within the Kansas lottery as deemed appropriate by the ex-
4 ecutive director of the Kansas lottery; (D) to aid in determining the pe-
5 titioner's qualifications for executive director of the Kansas racing
6 commission, for employment with the commission or for work in sensitive
7 areas in parimutuel racing as deemed appropriate by the executive direc-
8 tor of the commission, or to aid in determining qualifications for licensure
9 or renewal of licensure by the commission; (E) upon application for a
10 commercial driver's license under K.S.A. 8-2,125 through 8-2,142, and
11 amendments thereto; (F) the petitioner's qualifications to be an employee
12 of the state gaming agency; or (G) the petitioner's qualifications to be an
13 employee of a tribal gaming commission or to hold a license issued pur-
14 suant to a tribal-state gaming compact; or (H) in any application for reg-
15 istration as a broker-dealer, agent or investment adviser as defined by
16 K.S.A. 17-1252, and amendments thereto;
17 (3) the court, in the order of expungement, may specify other cir-
18 cumstances under which the conviction is to be disclosed; and
19 (4) the conviction may be disclosed in a subsequent prosecution for
20 an offense which requires as an element of such offense a prior conviction
21 of the type expunged.
22 (f) Whenever a person is convicted of an ordinance violation, pleads
23 guilty and pays a fine for such a violation, is placed on parole or
probation
24 or is granted a suspended sentence for such a violation, the person shall
25 be informed of the ability to expunge the conviction.
26 (g) Subject to the disclosures required pursuant to subsection (e), in
27 any application for employment, license or other civil right or privilege,
28 or any appearance as a witness, a person whose conviction of an offense
29 has been expunged under this statute may state that such person has never
30 been convicted of such offense.
31 (h) Whenever the record of any conviction has been expunged under
32 the provisions of this section or under the provisions of any other existing
33 or former statute, the custodian of the records of arrest, conviction and
34 incarceration relating to that crime shall not disclose the existence of
such
35 records, except when requested by:
36 (1) The person whose record was expunged;
37 (2) a criminal justice agency, private detective agency or a private
38 patrol operator, and the request is accompanied by a statement that the
39 request is being made in conjunction with an application for employment
40 with such agency or operator by the person whose record has been ex-
41 punged;
42 (3) a court, upon a showing of a subsequent conviction of the person
43 whose record has been expunged;
44 (4) the secretary of social and rehabilitation services, or a designee
of
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2 -the secretary, for the purpose of obtaining information relating to em-
3 ployment in an institution, as defined in K.S.A. 76-12a01, and amend-
4 ments thereto, of the department of social and rehabilitation services of
5 any person whose record has been expunged;
6 (5) a person entitled to such information pursuant to the terms of the
7 expungement order;
8 (6) a prosecuting attorney, and such request is accompanied by a
9 statement that the request is being made in conjunction with a prosecu-
10 tion of an offense that requires a prior conviction as one of the elements
11 of such offense;
12 (7) the supreme court, the clerk or disciplinary administrator thereof,
13 the state board for admission of attorneys or the state board for discipline
14 of attorneys, and the request is accompanied by a statement that the
15 request is being made in conjunction with an application for admission,
16 or for an order of reinstatement, to the practice of law in this state by
the
17 person whose record has been expunged;
18 (8) the Kansas lottery, and the request is accompanied by a statement
19 that the request is being made to aid in determining qualifications for
20 employment with the Kansas lottery or for work in sensitive areas within
21 the Kansas lottery as deemed appropriate by the executive director of the
22 Kansas lottery;
23 (9) the governor or the Kansas racing commission, or a designee of
24 the commission, and the request is accompanied by a statement that the
25 request is being made to aid in determining qualifications for executive
26 director of the commission, for employment with the commission, for
27 work in sensitive areas in parimutuel racing as deemed appropriate by
28 the executive director of the commission or for licensure, renewal of
29 licensure or continued licensure by the commission; or
30 (10) the state gaming agency, and the request is accompanied by a
31 statement that the request is being made to aid in determining qualifi-
32 cations: (A) To be an employee of the state gaming agency; or (B) to be
33 an employee of a tribal gaming commission or to hold a license issued
34 pursuant to a tribal-state gaming compact; or
35 (11) the Kansas securities commissioner, or a designee of the com-
36 missioner, and the request is accompanied by a statement that the request
37 is being made in conjunction with an application for registration as a
38 broker-dealer, agent or investment adviser by such agency and the ap-
39 plication was submitted by the person whose record has been expunged.
40 Sec. 2. K.S.A. 1996 Supp. 21-4619 is hereby amended to read as
41 follows: 21-4619. (a) Except as provided in subsections (b) and (c), any
42 person convicted in this state of a traffic infraction, cigarette or tobacco
43 infraction, misdemeanor or a class D or E felony, or for crimes committed
44 on or after July 1, 1993, nondrug crimes ranked in severity levels 6
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2 -through 10 or any felony ranked in severity level 4 of the drug grid, may
3 petition the convicting court for the expungement of such conviction if
4 three or more years have elapsed since the person: (1) Satisfied the sen-
5 tence imposed; or (2) was discharged from probation, a community cor-
6 rectional services program, parole, postrelease supervision, conditional
7 release or a suspended sentence.
8 (b) Except as provided in subsection (c), no person may petition for
9 expungement until five or more years have elapsed since the person sat-
10 isfied the sentence imposed or was discharged from probation, a com-
11 munity correctional services program, parole, postrelease supervision,
12 conditional release or a suspended sentence, if such person was convicted
13 of a class A, B or C felony, or for crimes committed on or after July 1,
14 1993, if convicted of an off-grid felony or any nondrug crime ranked in
15 severity levels 1 through 5 or any felony ranked in severity levels 1
through
16 3 of the drug grid, or:
17 (1) Vehicular homicide, as defined by K.S.A. 21-3405 and amend-
18 ments thereto or as prohibited by any law of another state which is in
19 substantial conformity with that statute;
20 (2) a violation of K.S.A. 8-1567 and amendments thereto, or a viola-
21 tion of any law of another state, which declares to be unlawful the acts
22 prohibited by that statute;
23 (3) driving while the privilege to operate a motor vehicle on the public
24 highways of this state has been canceled, suspended or revoked, as pro-
25 hibited by K.S.A. 8-262 and amendments thereto or as prohibited by any
26 law of another state which is in substantial conformity with that statute;
27 (4) perjury resulting from a violation of K.S.A. 8-261a and amend-
28 ments thereto or resulting from the violation of a law of another state
29 which is in substantial conformity with that statute;
30 (5) violating the provisions of the fifth clause of K.S.A. 8-142 and
31 amendments thereto, relating to fraudulent applications or violating the
32 provisions of a law of another state which is in substantial conformity with
33 that statute;
34 (6) any crime punishable as a felony wherein a motor vehicle was
35 used in the perpetration of such crime;
36 (7) failing to stop at the scene of an accident and perform the duties
37 required by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto,
38 or required by a law of another state which is in substantial conformity
39 with those statutes;
40 (8) violating the provisions of K.S.A. 40-3104 and amendments
41 thereto, relating to motor vehicle liability insurance coverage; or
42 (9) a violation of K.S.A. 21-3405b, and amendments thereto.
43 (c) There shall be no expungement of convictions for the following
44 offenses or of convictions for an attempt to commit any of the following
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2 -offenses: (1) Rape as defined in subsection (a)(2) of K.S.A. 21-3502 and
3 amendments thereto; (2) indecent liberties with a child as defined in
4 K.S.A. 21-3503 and amendments thereto; (3) aggravated indecent liber-
5 ties with a child as defined in K.S.A. 21-3504 and amendments thereto;
6 (4) criminal sodomy as defined in subsection (a)(2) or (a)(3) of K.S.A.
21-
7 3505 and amendments thereto; (5) aggravated criminal sodomy as defined
8 in K.S.A. 21-3506 and amendments thereto; (6) indecent solicitation of a
9 child as defined in K.S.A. 21-3510 and amendments thereto; (7) aggra-
10 vated indecent solicitation of a child as defined in K.S.A. 21-3511 and
11 amendments thereto; (8) sexual exploitation of a child as defined in K.S.A.
12 21-3516 and amendments thereto; (9) aggravated incest as defined in
13 K.S.A. 21-3603 and amendments thereto; (10) endangering a child as
14 defined in K.S.A. 21-3608 and amendments thereto; (11) abuse of a child
15 as defined in K.S.A. 21-3609 and amendments thereto; or (12) any con-
16 viction for any offense in effect at any time prior to the effective date of
17 this act, that is comparable to any offense as provided in this subsection.
18 (d) When a petition for expungement is filed, the court shall set a
19 date for a hearing thereon and shall give notice thereof to the prosecuting
20 attorney. The petition shall state: (1) The defendant's full name; (2) the
21 full name of the defendant at the time of arrest and conviction, if
different
22 than the defendant's current name; (3) the defendant's sex, race and date
23 of birth; (4) the crime for which the defendant was convicted; (5) the
24 date of the defendant's conviction; and (6) the identity of the convicting
25 court. There shall be no docket fee for filing a petition pursuant to this
26 section. All petitions for expungement shall be docketed in the original
27 criminal action. Any person who may have relevant information about the
28 petitioner may testify at the hearing. The court may inquire into the
29 background of the petitioner and shall have access to any reports or re-
30 cords relating to the petitioner that are on file with the secretary of cor-
31 rections or the Kansas parole board.
32 (e) At the hearing on the petition, the court shall order the petiti-
33 oner's conviction expunged if the court finds that:
34 (1) The petitioner has not been convicted of a felony in the past two
35 years and no proceeding involving any such crime is presently pending
36 or being instituted against the petitioner;
37 (2) the circumstances and behavior of the petitioner warrant the
38 expungement; and
39 (3) the expungement is consistent with the public welfare.
40 (f) When the court has ordered a conviction expunged, the order of
41 expungement shall state the information required to be contained in the
42 petition. The clerk of the court shall send a certified copy of the order of
43 expungement to the Kansas bureau of investigation which shall notify the
44 federal bureau of investigation, the secretary of corrections and any other
HB 2232
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2 -criminal justice agency which may have a record of the conviction. After
3 the order of expungement is entered, the petitioner shall be treated as
4 not having been convicted of the crime, except that:
5 (1) Upon conviction for any subsequent crime, the conviction that
6 was expunged may be considered as a prior conviction in determining the
7 sentence to be imposed;
8 (2) the petitioner shall disclose that the conviction occurred if asked
9 about previous convictions (A) in any application for employment as a
10 detective with a private detective agency, as defined by K.S.A. 75-7b01
11 and amendments thereto; as security personnel with a private patrol op-
12 erator, as defined by K.S.A. 75-7b01 and amendments thereto; with a
13 criminal justice agency, as defined by K.S.A. 22-4701 and amendments
14 thereto; or with an institution, as defined in K.S.A. 76-12a01 and amend-
15 ments thereto, of the department of social and rehabilitation services; (B)
16 in any application for admission, or for an order of reinstatement, to the
17 practice of law in this state; (C) to aid in determining the petitioner's
18 qualifications for employment with the Kansas lottery or for work in sen-
19 sitive areas within the Kansas lottery as deemed appropriate by the ex-
20 ecutive director of the Kansas lottery; (D) to aid in determining the pe-
21 titioner's qualifications for executive director of the Kansas racing
22 commission, for employment with the commission or for work in sensitive
23 areas in parimutuel racing as deemed appropriate by the executive direc-
24 tor of the commission, or to aid in determining qualifications for licensure
25 or renewal of licensure by the commission; or (E) upon application for a
26 commercial driver's license under K.S.A. 8-2,125 through 8-2,142, and
27 amendments thereto; (F) the petitioner's qualifications to be an employee
28 of the state gaming agency; (G) the petitioner's qualifications to be an
29 employee of a tribal gaming commission or to hold a license issued pur-
30 suant to a tribal-state gaming compact; or (H) in any application for
31 registration as a broker-dealer, agent or investment adviser as defined by
32 K.S.A. 17-1252, and amendments thereto;
33 (3) the court, in the order of expungement, may specify other cir-
34 cumstances under which the conviction is to be disclosed;
35 (4) the conviction may be disclosed in a subsequent prosecution for
36 an offense which requires as an element of such offense a prior conviction
37 of the type expunged; and
38 (5) upon commitment to the custody of the secretary of corrections,
39 any previously expunged record in the possession of the secretary of cor-
40 rections may be reinstated and the expungement disregarded, and the
41 record continued for the purpose of the new commitment.
42 (g) Whenever a person is convicted of a crime, pleads guilty and pays
43 a fine for a crime, is placed on parole, postrelease supervision or proba-
44 tion, is assigned to a community correctional services program, is granted
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2 -a suspended sentence or is released on conditional release, the person
3 shall be informed of the ability to expunge the conviction.
4 (h) Subject to the disclosures required pursuant to subsection (f), in
5 any application for employment, license or other civil right or privilege,
6 or any appearance as a witness, a person whose conviction of a crime has
7 been expunged under this statute may state that such person has never
8 been convicted of such crime, but the expungement of a felony conviction
9 does not relieve an individual of complying with any state or federal law
10 relating to the use or possession of firearms by persons convicted of a
11 felony.
12 (i) Whenever the record of any conviction has been expunged under
13 the provisions of this section or under the provisions of any other existing
14 or former statute, the custodian of the records of arrest, conviction and
15 incarceration relating to that crime shall not disclose the existence of
such
16 records, except when requested by:
17 (1) The person whose record was expunged;
18 (2) a criminal justice agency, private detective agency or a private
19 patrol operator, and the request is accompanied by a statement that the
20 request is being made in conjunction with an application for employment
21 with such agency or operator by the person whose record has been ex-
22 punged;
23 (3) a court, upon a showing of a subsequent conviction of the person
24 whose record has been expunged;
25 (4) the secretary of social and rehabilitation services, or a designee
of
26 the secretary, for the purpose of obtaining information relating to em-
27 ployment in an institution, as defined in K.S.A. 76-12a01 and amend-
28 ments thereto, of the department of social and rehabilitation services of
29 any person whose record has been expunged;
30 (5) a person entitled to such information pursuant to the terms of the
31 expungement order;
32 (6) a prosecuting attorney, and such request is accompanied by a
33 statement that the request is being made in conjunction with a prosecu-
34 tion of an offense that requires a prior conviction as one of the elements
35 of such offense;
36 (7) the supreme court, the clerk or disciplinary administrator thereof,
37 the state board for admission of attorneys or the state board for discipline
38 of attorneys, and the request is accompanied by a statement that the
39 request is being made in conjunction with an application for admission,
40 or for an order of reinstatement, to the practice of law in this state by
the
41 person whose record has been expunged;
42 (8) the Kansas lottery, and the request is accompanied by a statement
43 that the request is being made to aid in determining qualifications for
44 employment with the Kansas lottery or for work in sensitive areas within
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2 -the Kansas lottery as deemed appropriate by the executive director of the
3 Kansas lottery;
4 (9) the governor or the Kansas racing commission, or a designee of
5 the commission, and the request is accompanied by a statement that the
6 request is being made to aid in determining qualifications for executive
7 director of the commission, for employment with the commission, for
8 work in sensitive areas in parimutuel racing as deemed appropriate by
9 the executive director of the commission or for licensure, renewal of
10 licensure or continued licensure by the commission; or
11 (10) the Kansas sentencing commission.;
12 (11) the state gaming agency, and the request is accompanied by a
13 statement that the request is being made to aid in determining qualifica-
14 tions: (A) To be an employee of the state gaming agency; or (B) to be an
15 employee of a tribal gaming commission or to hold a license issued pur-
16 suant to a tribal-state gaming compact; or
17 (12) the Kansas securities commissioner, or a designee of the com-
18 missioner, and the request is accompanied by a statement that the request
19 is being made in conjunction with an application for registration as a
20 broker-dealer, agent or investment adviser by such agency and the ap-
21 plication was submitted by the person whose record has been expunged.
22 Sec. 3. K.S.A. 1996 Supp. 12-4516, 21-4619 and 21-4619b are hereby
23 repealed.
24 Sec. 4. This act shall take effect and be in force from and after its
25 publication in the statute book.