HB 2260--
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Session of 1997
HOUSE BILL No. 2260
By Representative Adkins
2-7
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9 AN ACT concerning cigarette and tobacco infractions; amending K.S.A.
10 1996 Supp. 12-4214, 12-4305, 21-4503a, 79-3322 and 79-3393 and
11 repealing the existing sections.
12
13 Be it enacted by the Legislature of the State of Kansas:
14 Section 1. K.S.A. 1996 Supp. 12-4214 is hereby amended to read as
15 follows: 12-4214. (a) Except as provided further, when a person is charged
16 with an ordinance traffic infraction or an ordinance cigarette or tobacco
17 infraction, the notice to appear shall provide a place where the person
18 may make a written entry of appearance, waive the right to a trial and
19 plead guilty or no contest. The notice to appear shall provide a space in
20 which the law enforcement officer, except as provided in subsection (b),
21 shall enter the appropriate fine specified in the fine schedule established
22 by the municipal judge in accordance with K.S.A. 12-4305 and amend-
23 ments thereto, in the case of a traffic infraction, or a fine of $25 as es-
24 tablished in subsection (d), in the case of an ordinance cigarette or tobacco
25 infraction. Either the notice to appear or a separate form provided to the
26 person by the law enforcement officer shall provide an explanation: (1)
27 Of the person's right to appear and right to trial and the person's right to
28 pay the appropriate fine prior to the appearance date; (2) that failure to
29 either pay such fine or appear at the specified time may result in issuance
30 of a warrant for the person's arrest; and (3) in the case of a traffic infrac-
31 tion, that failure to either pay such fine or appear at the specified time
32 may result in the suspension of the person's driver's license. The law
33 enforcement officer shall provide the person with the telephone number
34 and address of the municipal court to which the written entry of appear-
35 ance, waiver of trial, plea of guilty or no contest and payment of fine shall
36 be mailed.
37 (b) In lieu of the law enforcement officer entering the appropriate
38 fine for an ordinance traffic infraction, the officer may direct the person
39 charged with an ordinance traffic infraction to contact the clerk of the
40 municipal court to determine the applicable fine or provide the person
41 with a copy of the fine schedule established by the municipal judge in
42 accordance with K.S.A. 12-4305 and amendments thereto.
43 (c) When a person is charged with an ordinance cigarette or tobacco
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1 infraction, the judge may require the juvenile to appear in court with a
2 parent or legal guardian.
3 (d) The fine for an ordinance cigarette or tobacco infraction shall be
4 $25 for a first conviction, $50 for a second conviction, and $150 for a
5 third or subsequent conviction. In addition, the judge may require the
6 juvenile to complete, at the juvenile's own expense, an educational pro-
7 gram, which shall consist of a minimum of two hours, focusing on the
8 dangers associated with the use of cigarettes or tobacco products.
9 (c) (e) This section shall be a part of and supplemental to the provi-
10 sions of article 42 of chapter 12 of the Kansas Statutes Annotated and
11 acts amendatory thereof or supplemental thereto.
12 Sec. 2. K.S.A. 1996 Supp. 12-4305 is hereby amended to read as
13 follows: 12-4305. (a) The municipal judge shall establish a schedule of
14 fines which shall be imposed for municipal ordinance violations that are
15 classified as ordinance traffic infractions. Also, the municipal judge may
16 establish a schedule of fines which shall be imposed for the violation of
17 certain other ordinances. Any fine so established shall be within the min-
18 imum and maximum allowable fines established by ordinance for such
19 offenses by the governing body. The following traffic violations are spe-
20 cifically excluded from any schedule of fines:
21 (1) Reckless driving;
22 (2) driving while under the influence of alcohol or drugs, or both, or
23 driving with a blood or breath alcohol concentration of .08 or more;
24 (3) driving without a valid license issued or on a canceled, suspended
25 or revoked license;
26 (4) fleeing or attempting to elude a police officer; or
27 (5) offense comparable to those prescribed by K.S.A. 8-1602, 8-1603
28 and 8-1604 and amendments thereto.
29 (b) A person charged with the violation of an ordinance contained in
30 a schedule of fines established under subsection (a) shall, except as pro-
31 vided in subsection (c), appear at the place and time specified in the
32 notice to appear. If the person enters an appearance, waives right to trial,
33 pleads guilty or no contest, the fine shall be no greater than that specified
34 in the schedule.
35 (c) Except as provided in subsection (c) of K.S.A. 12-4214, and
36 amendments thereto, prior to the time specified in the notice to appear,
37 a person charged with an ordinance cigarette or tobacco infraction or a
38 violation of an ordinance contained in a schedule of fines established
39 under subsection (a) may enter an appearance, waive right to trial, plead
40 guilty or no contest and pay the fine for the violation as specified in the
41 schedule or in subsection (a) (d) of K.S.A. 12-4214 and amendments
42 thereto. At the election of the person charged, such appearance, waiver,
43 plea and payment may be made by mail or in person and payment may
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1 be by personal check. The complaint shall not have been complied with
2 if a check is not honored for any reason, or the fine is not paid in full
3 prior to the time specified in the notice to appear. When a person charged
4 with an ordinance cigarette or tobacco infraction or an ordinance traffic
5 infraction or other ordinance violation on a schedule of fines makes pay-
6 ment without executing a written waiver of right to trial and plea of guilty
7 or no contest, the payment shall be deemed such an appearance, waiver
8 of right to trial and plea of no contest.
9 The municipal judge may authorize the clerk of the municipal court or
10 some other person to accept by mail or in person such voluntary appear-
11 ance, plea of guilty or no contest and payment of the fine imposed by the
12 schedule or by subsection (a) (d) of K.S.A. 12-4214 and amendments
13 thereto.
14 The schedule of fines and persons authorized to accept such pleas shall
15 be conspicuously displayed in the office where such voluntary appearance,
16 plea of guilty and payment of fine occurs.
17 Sec. 3. K.S.A. 1996 Supp. 21-4503a is hereby amended to read as
18 follows: 21-4503a. (a) A person who has been convicted of a felony may,
19 in addition to the sentence authorized by law, be ordered to pay a fine
20 which shall be fixed by the court as follows:
21 (1) For any off-grid felony crime or any felony ranked in severity level
22 1 of the drug grid as provided in K.S.A. 21-4705 and amendments thereto,
23 a sum not exceeding $500,000.
24 (2) For any felony ranked in severity levels 1 through 5 of the nondrug
25 grid as provided in K.S.A. 21-4704 and amendments thereto or in severity
26 levels 2 or 3 of the drug grid as provided in K.S.A. 21-4705 and amend-
27 ments thereto, a sum not exceeding $300,000.
28 (3) For any felony ranked in severity levels 6 through 10 of the non-
29 drug grid as provided in K.S.A. 21-4704 and amendments thereto or in
30 severity level 4 of the drug grid as provided in K.S.A. 21-4705 and amend-
31 ments thereto, a sum not exceeding $100,000.
32 (b) A person who has been convicted of a misdemeanor, in addition
33 to or instead of the imprisonment authorized by law, may be sentenced
34 to pay a fine which shall be fixed by the court as follows:
35 (1) For a class A misdemeanor, a sum not exceeding $2,500.
36 (2) For a class B misdemeanor, a sum not exceeding $1,000.
37 (3) For a class C misdemeanor, a sum not exceeding $500.
38 (4) For an unclassified misdemeanor, any sum authorized by the stat-
39 ute that defines the crime. If no penalty is provided in such law, the fine
40 shall not exceed the fine provided herein for a class C misdemeanor.
41 (c) As an alternative to any of the above fines, the fine imposed may
42 be fixed at any greater sum not exceeding double the pecuniary gain
43 derived from the crime by the offender.
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1 (d) A person who has been convicted of a traffic infraction may be
2 sentenced to pay a fine which shall be fixed by the court, not exceeding
3 $500.
4 (e) A person who has been convicted of a cigarette or tobacco in-
5 fraction shall be sentenced to pay a fine of $25 for a first conviction, $50
6 for a second conviction and $150 for a third or subsequent conviction.
7 (f) The provisions of this section shall apply to crimes committed on
8 or after July 1, 1993.
9 Sec. 4. K.S.A. 1996 Supp. 79-3322 is hereby amended to read as
10 follows: 79-3322. (a) Any person who violates any of the provisions of this
11 act, except as otherwise provided in this act, shall be guilty of a misde-
12 meanor and upon conviction shall be punished by a fine of not more than
13 $1,000 or imprisonment for not more than one year, or by both. In ad-
14 dition thereto any person found liable for any license fee or tax imposed
15 under the provisions of this act shall be personally liable for such license
16 fee or tax plus a penalty in an amount equal to 100% thereof.
17 (b) (1) It is a class B person misdemeanor punishable by a minimum
18 fine of $200 for any person, directly or indirectly, to: (A) Sell, give or
19 furnish any cigarettes or tobacco products to any person under 18 years
20 of age; or (B) buy any cigarettes or tobacco products for any person under
21 18 years of age. In determining the penalty to be imposed for a violation
22 of this subsection by a licensed retail dealer whose employee sold, fur-
23 nished or distributed the cigarettes or tobacco products, the court shall
24 consider it to be a mitigating circumstance if the employee had completed
25 a training program, approved by the secretary of revenue or the secre-
26 tary's designee, in avoiding sale, furnishing or distributing of cigarettes
27 and tobacco products to persons under 18 years of age.
28 (2) It shall be a defense to a prosecution under this subsection if: (A)
29 The defendant is a licensed retail dealer or a person authorized by law to
30 distribute samples; (B) the defendant sold, furnished or distributed the
31 cigarettes or tobacco products to the person under 18 years of age with
32 reasonable cause to believe the person was of legal age to purchase or
33 receive cigarettes or tobacco products; and (C) to purchase or receive the
34 cigarettes or tobacco products, the person under 18 years of age exhibited
35 to the defendant a driver's license, Kansas nondriver's identification card
36 or other official or apparently official document containing a photograph
37 of the person and purporting to establish that the person was of legal age
38 to purchase or receive cigarettes or tobacco products.
39 (3) It shall be a defense to a prosecution under this subsection if: (A)
40 The defendant engages in the lawful sale, furnishing or distribution of
41 cigarettes or tobacco products by mail; and (B) the defendant sold, fur-
42 nished or distributed the cigarettes or tobacco products to the person by
43 mail only after the person had provided to the defendant an unsworn
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1 declaration, conforming to K.S.A. 53-601 and amendments thereto, that
2 the person was 18 or more years of age.
3 (c) Violation of subsection (m) or (n) of K.S.A. 79-3321 and amend-
4 ments thereto is a cigarette or tobacco infraction for which the fine is $25
5 for a first conviction, $50 for a second conviction and $150 for a third or
6 subsequent conviction. In addition, the judge may require the juvenile to
7 appear in court with a parent or legal guardian and further may require
8 the juvenile to complete, at the juvenile's own expense, an educational
9 program, which shall consist of a minimum of two hours, focusing on the
10 dangers associated with the use of cigarettes or tobacco products.
11 (d) Any agent, employees or others who aid, abet or otherwise par-
12 ticipate in any way in the violation of this act or in any of the offenses
13 hereunder punishable shall be guilty and punished as principals to the
14 same extent as any person violating this act.
15 Sec. 5. K.S.A. 1996 Supp. 79-3393 is hereby amended to read as
16 follows: 79-3393. (a) When a person is stopped by a law enforcement
17 officer for a cigarette or tobacco infraction, the person shall not be taken
18 before a judge of the district court unless the person demands an im-
19 mediate appearance before a judge.
20 (b) When a person is stopped by a law enforcement officer for a
21 cigarette or tobacco infraction, the law enforcement officer may shall
22 prepare and deliver to the person a written cigarette or tobacco citation
23 on a form approved by the secretary of revenue or the secretary's des-
24 ignee. The citation shall contain a notice to appear in court, the name
25 and address of the person, the offense or offenses charged, the time and
26 place when and where the person shall appear in court, the signature of
27 the law enforcement officer and any other pertinent information. The
28 time specified in the notice to appear shall be at least five days after the
29 alleged infraction unless the person charged with the infraction demands
30 an earlier hearing. The place specified in the notice to appear shall be
31 before a judge of the district court within the county where the infraction
32 is alleged to have been committed or before a judge of the municipal
33 court where the infraction is alleged to have been committed in a city
34 which has adopted an ordinance which prohibits the same acts.
35 (c) (b) The notice to appear shall may provide a place where the
36 person may make a written entry of appearance, waive the right to a trial
37 and plead guilty or no contest. The notice to appear shall provide a space
38 where the law enforcement officer shall enter the fine specified in sub-
39 section (c) of K.S.A. 79-3322 and amendments thereto and court costs in
40 the amount provided by law that the person charged with the infraction
41 shall appear in court with a parent or legal guardian and shall provide
42 that the person charged has a right to trial.
43 (d) If the notice to appear does not do so, the law enforcement officer
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1 shall provide a person charged with a cigarette or tobacco infraction a
2 form explaining the person's right to appear and right to a trial and the
3 person's right to pay the appropriate fine and court costs prior to the
4 appearance date. The law enforcement officer shall provide the person
5 with the address of the court to which the written entry of appearance,
6 waiver of trial, plea of guilty or no contest and payment of fine and court
7 costs shall be mailed.
8 (e) Any officer violating any of the provisions of subsection (d) is
9 guilty of misconduct in office and shall be subject to removal from office.
10 (f) Prior to the time specified in the notice to appear, a person
11 charged with a cigarette or tobacco infraction may enter a written ap-
12 pearance, waive right to trial, plead guilty or no contest and pay the $25
13 fine and court costs provided by law. Payment may be made by mail or
14 in person and may be by personal check. The cigarette or tobacco citation
15 shall not have been complied with if a check is not honored for any reason,
16 or if the fine and court costs are not paid in full. When a person charged
17 with a cigarette or tobacco infraction makes payment without executing
18 a written waiver of right to trial and plea of guilty or no contest, the
19 payment shall be deemed such an appearance, waiver of right to trial and
20 plea of no contest.
21 (g) (c) Acts classified as cigarette or tobacco infractions by subsection
22 (c) of K.S.A. 79-3321 79-3322, and amendments thereto shall be classified
23 as ordinance cigarette or tobacco infractions by those cities adopting or-
24 dinances prohibiting the same acts. The fine for an ordinance cigarette
25 or tobacco infraction shall be $25 for a first conviction, $50 for a second
26 conviction and $150 for a third or subsequent conviction. In addition, the
27 judge may require the juvenile to complete, at the juvenile's own expense,
28 an educational program which shall consist of a minimum of two hours
29 focusing on the dangers associated with the use of cigarettes or tobacco
30 products.
31 Sec. 6. K.S.A. 1996 Supp. 12-4214, 12-4305, 21-4503a, 79-3322 and
32 79-3393 are hereby repealed.
33 Sec. 7. This act shall take effect and be in force from and after its
34 publication in the statute book.