Session of 1998
                   
HOUSE BILL No. 2773
         
By Representative Tanner
         
2-2
            9             AN ACT concerning alcohol or drug related offenses involving the op-
10             eration of a vehicle; relating to administrative hearings; amending
11             K.S.A. 1997 Supp. 8-255 and 8-1002 and repealing the existing
12             sections.
13            
14       Be it enacted by the Legislature of the State of Kansas:
15           Section 1. K.S.A. 1997 Supp. 8-255 is hereby amended to read as
16       follows: 8-255. (a) The division is authorized to suspend or revoke a per-
17       son's driving privileges upon a showing by its records or other sufficient
18       evidence the person:
19           (1) Has been convicted with such frequency of serious offenses
20       against traffic regulations governing the movement of vehicles as to in-
21       dicate a disrespect for traffic laws and a disregard for the safety of other
22       persons on the highways;
23           (2) has been convicted of three or more moving traffic violations com-
24       mitted on separate occasions within a 12-month period;
25           (3) is incompetent to drive a motor vehicle;
26           (4) has been convicted of a moving traffic violation, committed at a
27       time when the person's driving privileges were suspended or revoked; or
28           (5) is a member of the armed forces of the United States stationed
29       at a military installation located in the state of Kansas, and the authorities
30       of the military establishment certify that such person's on-base driving
31       privileges have been suspended, by action of the proper military author-
32       ities, for violating the rules and regulations of the military installation
33       governing the movement of vehicular traffic or for any other reason re-
34       lating to the person's inability to exercise ordinary and reasonable control
35       in the operation of a motor vehicle.
36           (b) The division shall suspend a person's driving privileges when re-
37       quired by K.S.A. 8-262 or 8-1014, and amendments thereto, and shall
38       disqualify a person's privilege to drive commercial motor vehicles when
39       required by K.S.A. 8-2,142, and amendments thereto.
40           (c) When the action by the division suspending, revoking or disqual-
41       ifying a person's driving privileges is based upon a report of a conviction
42       or convictions from a convicting court, the person may not request a
43       hearing but, within 30 days after notice of suspension, revocation or dis-

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  1       qualification is mailed, may submit a written request for administrative
  2       review and provide evidence to the division to show the person whose
  3       driving privileges have been suspended, revoked or disqualified by the
  4       division was not convicted of the offense upon which the suspension,
  5       revocation or disqualification is based. Within 30 days of its receipt of the
  6       request for administrative review, the division shall notify the person
  7       whether the suspension, revocation or disqualification has been affirmed
  8       or set aside. The request for administrative review shall not stay any action
  9       taken by the division.
10           (d) Upon suspending, revoking or disqualifying the driving privileges
11       of any person as authorized by this act, the division shall immediately
12       notify the person in writing. Except as provided by K.S.A. 8-1002 and
13       8-2,145, and amendments thereto, and subsection (c) of this section, if
14       the person makes a written request for hearing within 30 days after such
15       notice of suspension or revocation is mailed, the division shall afford the
16       person an opportunity for a hearing as early as practical not sooner than
17       five days nor more than 30 days after such request is mailed. If the division
18       has not revoked or suspended the person's driving privileges or vehicle
19       registration prior to the hearing, the hearing may be held within not to
20       exceed 45 days. Except as provided by K.S.A. 8-1002 and 8-2,145, and
21       amendments thereto, the hearing shall be held in the person's county of
22       residence or a county adjacent thereto, unless the division and the person
23       agree that the hearing may be held in some other county. Upon the
24       hearing, the director or the director's duly authorized agent may admin-
25       ister oaths and may issue subpoenas for the attendance of witnesses and
26       the production of relevant books and papers and may require an exami-
27       nation or reexamination of the person. When the action proposed or taken
28       by the division is authorized but not required, the division, upon the
29       hearing, shall either rescind or affirm its order of suspension or revocation
30       or, good cause appearing therefor, extend the suspension of the person's
31       driving privileges, modify the terms of the suspension or revoke the per-
32       son's driving privileges. When the action proposed or taken by the division
33       is required, the division, upon the hearing, shall either affirm its order of
34       suspension, revocation or disqualification, or, good cause appearing there-
35       for, dismiss the administrative action. If the person fails to request a
36       hearing within the time prescribed or if, after a hearing, the order of
37       suspension, revocation or disqualification is upheld, the person shall sur-
38       render to the division, upon proper demand, any driver's license in the
39       person's possession.
40           (e) In case of failure on the part of any person to comply with any
41       subpoena issued in behalf of the division or the refusal of any witness to
42       testify to any matters regarding which the witness may be lawfully inter-
43       rogated, the district court of any county, on application of the division,

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  1       may compel obedience by proceedings for contempt, as in the case of
  2       disobedience of the requirements of a subpoena issued from the court or
  3       a refusal to testify in the court. Except as provided in K.S.A. 8-1002, and
  4       amendments thereto, each witness who appears before the director or the
  5       director's duly authorized agent by order or subpoena, other than an
  6       officer or employee of the state or of a political subdivision of the state,
  7       shall receive for the witness' attendance the fees and mileage provided
  8       for witnesses in civil cases in courts of record, which shall be audited and
  9       paid upon the presentation of proper vouchers sworn to by the witness.
10           (f) The division, in the interest of traffic and safety, may establish
11       driver improvement clinics throughout the state and, upon reviewing the
12       driving record of a person whose driving privileges are subject to suspen-
13       sion under subsection (a)(2), may permit the person to retain such per-
14       son's driving privileges by attending a driver improvement clinic. A person
15       who is required to attend a driver improvement clinic shall pay a fee of
16       $15. Amounts received under this subsection shall be remitted at least
17       monthly to the state treasurer who shall deposit the same in the state
18       treasury and shall be credited to the division of vehicles operating fund.
19           Sec. 2. K.S.A. 1997 Supp. 8-1002 is hereby amended to read as fol-
20       lows: 8-1002. (a) Whenever a test is requested pursuant to this act and
21       results in either a test failure or test refusal, a law enforcement officer's
22       certification shall be prepared. If the person had been driving a com-
23       mercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments
24       thereto, a separate certification pursuant to K.S.A. 8-2,145 and amend-
25       ments thereto shall be prepared in addition to any certification required
26       by this section. The certification required by this section shall be signed
27       by one or more officers to certify:
28           (1) With regard to a test refusal, that: (A) There existed reasonable
29       grounds to believe the person was operating or attempting to operate a
30       vehicle while under the influence of alcohol or drugs, or both, or to be-
31       lieve that the person had been driving a commercial motor vehicle, as
32       defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol
33       or other drugs in such person's system; (B) the person had been placed
34       under arrest, was in custody or had been involved in a vehicle accident
35       or collision; (C) a law enforcement officer had presented the person with
36       the oral and written notice required by K.S.A. 8-1001, and amendments
37       thereto; and (D) the person refused to submit to and complete a test as
38       requested by a law enforcement officer.
39           (2) With regard to a test failure, that: (A) There existed reasonable
40       grounds to believe the person was operating a vehicle while under the
41       influence of alcohol or drugs, or both, or to believe that the person had
42       been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128,
43       and amendments thereto, while having alcohol or other drugs in such

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  1       person's system; (B) the person had been placed under arrest, was in
  2       custody or had been involved in a vehicle accident or collision; (C) a law
  3       enforcement officer had presented the person with the oral and written
  4       notice required by K.S.A. 8-1001, and amendments thereto; and (D) the
  5       result of the test showed that the person had an alcohol concentration of
  6       .08 or greater in such person's blood or breath.
  7           (3) With regard to failure of a breath test, in addition to those matters
  8       required to be certified under subsection (a)(2), that: (A) The testing
  9       equipment used was certified by the Kansas department of health and
10       environment; (B) the testing procedures used were in accordance with
11       the requirements set out by the Kansas department of health and envi-
12       ronment; and (C) the person who operated the testing equipment was
13       certified by the Kansas department of health and environment to operate
14       such equipment.
15           (b) For purposes of this section, certification shall be complete upon
16       signing, and no additional acts of oath, affirmation, acknowledgment or
17       proof of execution shall be required. The signed certification or a copy
18       or photostatic reproduction thereof shall be admissible in evidence in all
19       proceedings brought pursuant to this act, and receipt of any such certi-
20       fication, copy or reproduction shall accord the department authority to
21       proceed as set forth herein. Any person who signs a certification submit-
22       ted to the division knowing it contains a false statement is guilty of a class
23       B nonperson misdemeanor.
24           (c) When the officer directing administration of the testing deter-
25       mines that a person has refused a test and the criteria of subsection (a)(1)
26       have been met or determines that a person has failed a test and the criteria
27       of subsection (a)(2) have been met, the officer shall serve upon the person
28       notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and
29       amendments thereto. If the determination is made while the person is
30       still in custody, service shall be made in person by the officer on behalf
31       of the division of vehicles. In cases where a test failure is established by
32       a subsequent analysis of a breath, blood or urine sample, the officer shall
33       serve notice of such suspension in person or by another designated officer
34       or by mailing the notice to the person at the address provided at the time
35       of the test.
36           (d) In addition to the information required by subsection (a), the law
37       enforcement officer's certification and notice of suspension shall contain
38       the following information: (1) The person's name, driver's license number
39       and current address; (2) the reason and statutory grounds for the suspen-
40       sion; (3) the date notice is being served and a statement that the effective
41       date of the suspension shall be the 30th calendar day after the date of
42       service; (4) the right of the person to request an administrative hearing;
43       and (5) the procedure the person must follow to request an administrative

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  1       hearing. The law enforcement officer's certification and notice of suspen-
  2       sion shall also inform the person that all correspondence will be mailed
  3       to the person at the address contained in the law enforcement officer's
  4       certification and notice of suspension unless the person notifies the di-
  5       vision in writing of a different address or change of address. The address
  6       provided will be considered a change of address for purposes of K.S.A.
  7       8-248, and amendments thereto, if the address furnished is different from
  8       that on file with the division.
  9           (e) If a person refuses a test or if a person is still in custody when it
10       is determined that the person has failed a test, the officer shall take any
11       license in the possession of the person and, if the license is not expired,
12       suspended, revoked or canceled, shall issue a temporary license effective
13       until the 30th calendar day after the date of service set out in the law
14       enforcement officer's certification and notice of suspension. If the test
15       failure is established by a subsequent analysis of a breath or blood sample,
16       the temporary license shall be served together with the copy of the law
17       enforcement officer's certification and notice of suspension. A temporary
18       license issued pursuant to this subsection shall bear the same restrictions
19       and limitations as the license for which it was exchanged. Within five days
20       after the date of service of a copy of the law enforcement officer's certi-
21       fication and notice of suspension the officer's certification and notice of
22       suspension, along with any licenses taken, shall be forwarded to the di-
23       vision.
24           (f) Upon receipt of the law enforcement officer's certification, the
25       division shall review the certification to determine that it meets the
26       requirements of subsection (a). Upon so determining, the division shall
27       proceed to suspend the person's driving privileges in accordance with the
28       notice of suspension previously served. If the requirements of subsection
29       (a) are not met, the division shall dismiss the administrative proceeding
30       and return any license surrendered by the person.
31           (g) If the person mails a written request which is postmarked within
32       10 days after service of the notice, if by personal service, or 13 days after
33       service, if by mail, the division shall schedule a hearing in the county
34       where the alleged violation occurred, or in a county adjacent thereto. The
35       licensee may request that subpoenas be issued in accordance with the
36       notice provided pursuant to subsection (d). Any request made by the
37       licensee to subpoena witnesses must be made in writing at the time the
38       hearing is requested and must include the name and current address of
39       such witnesses and, except for the law enforcement officer or officers
40       certifying refusal or failure, a statement of how the testimony of such
41       witness is relevant. The law enforcement officer or officers certifying re-
42       fusal or failure who appear as witnesses shall receive for their attendance
43       the fees and mileage provided witnesses in civil cases in courts of record,

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  1       which shall be audited and paid upon the presentation of proper vouchers
  2       sworn to by the witness. Any law enforcement officer subpoenaed as a
  3       witness may be represented by counsel. Upon receiving a timely request
  4       for a hearing, the division shall mail to the person notice of the time, date
  5       and place of hearing in accordance with subsection (l) and extend the
  6       person's temporary driving privileges until the date set for the hearing by
  7       the division.
  8           (h) (1) If the officer certifies that the person refused the test, the
  9       scope of the hearing shall be limited to whether: (A) A law enforcement
10       officer had reasonable grounds to believe the person was operating or
11       attempting to operate a vehicle while under the influence of alcohol or
12       drugs, or both, or to believe that the person had been driving a com-
13       mercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments
14       thereto, while having alcohol or other drugs in such person's system; (B)
15       the person was in custody or arrested for an alcohol or drug related of-
16       fense or was involved in a vehicle accident or collision resulting in prop-
17       erty damage, personal injury or death; (C) a law enforcement officer had
18       presented the person with the oral and written notice required by K.S.A.
19       8-1001, and amendments thereto; and (D) the person refused to submit
20       to and complete a test as requested by a law enforcement officer.
21           (2) If the officer certifies that the person failed the test, the scope of
22       the hearing shall be limited to whether: (A) A law enforcement officer
23       had reasonable grounds to believe the person was operating a vehicle
24       while under the influence of alcohol or drugs, or both, or to believe that
25       the person had been driving a commercial motor vehicle, as defined in
26       K.S.A. 8-2,128, and amendments thereto, while having alcohol or other
27       drugs in such person's system; (B) the person was in custody or arrested
28       for an alcohol or drug related offense or was involved in a vehicle accident
29       or collision resulting in property damage, personal injury or death; (C) a
30       law enforcement officer had presented the person with the oral and writ-
31       ten notice required by K.S.A. 8-1001, and amendments thereto; (D) the
32       testing equipment used was reliable; (E) the person who operated the
33       testing equipment was qualified; (F) the testing procedures used were
34       reliable; (G) the test result determined that the person had an alcohol
35       concentration of .08 or greater in such person's blood or breath; and (H)
36       the person was operating a vehicle.
37           (i) At a hearing pursuant to this section, or upon court review of an
38       order entered at such a hearing, an affidavit of the custodian of records
39       at the Kansas department of health and environment stating that the
40       breath testing device was certified and the operator of such device was
41       certified on the date of the test shall be admissible into evidence in the
42       same manner and with the same force and effect as if the certifying officer
43       or employee of the Kansas department of health and environment had

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  1       testified in person. Such affidavit shall be admitted to prove such relia-
  2       bility without further foundation requirement. A certified operator of a
  3       breath testing device shall be competent to testify regarding the proper
  4       procedures to be used in conducting the test.
  5           (j) At a hearing pursuant to this section, or upon court review of an
  6       order entered at such hearing, in which the report of blood test results
  7       have been prepared by the Kansas bureau of investigation or other fo-
  8       rensic laboratory of a state or local law enforcement agency are to be
  9       introduced as evidence, the report, or a copy of the report, of the findings
10       of the forensic examiner shall be admissible into evidence in the same
11       manner and with the same force and effect as if the forensic examiner
12       who performed such examination, analysis, comparison or identification
13       and prepared the report thereon had testified in person.
14           (k) If no timely request for hearing is made, the suspension period
15       imposed pursuant to this section shall begin upon the expiration of the
16       temporary license granted under subsection (e). If a timely request for
17       hearing is made, the hearing shall be held within 30 days of the date the
18       request for hearing is received by the division, except that failure to hold
19       such hearing within 30 days shall not be cause for dismissal absent a
20       showing of prejudice. At the hearing, the director or the representative
21       of the director, shall either affirm the order of suspension or suspension
22       and restriction or dismiss the administrative action. If the division is un-
23       able to hold a hearing within 30 days of the date upon which the request
24       for hearing is received, the division shall extend the person's temporary
25       driving privileges until the date set for the hearing by the division. No
26       extension of temporary driving privileges shall be issued for continuances
27       requested by or on behalf of the licensee. If the person whose privileges
28       are suspended is a nonresident licensee, the license of the person shall
29       be forwarded to the appropriate licensing authority in the person's state
30       of residence if the result at the hearing is adverse to such person or if no
31       timely request for a hearing is received.
32           (l) All notices affirming or canceling a suspension under this section,
33       all notices of a hearing held under this section and all issuances of tem-
34       porary driving privileges pursuant to subsection (k) shall be sent by
35       first-class mail and a U.S. post office certificate of mailing shall be ob-
36       tained therefor. All notices so mailed shall be deemed received three days
37       after mailing.
38           (m) The division shall prepare and distribute forms for use by law
39       enforcement officers in giving the notice required by this section.
40           (n) This section and the applicable provisions contained in subsec-
41       tions (d) and (e) of K.S.A. 8-255 and amendments thereto constitute the
42       administrative procedures to be used for all administrative hearings held
43       under this act. To the extent that this section and any other provision of

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  1       law conflicts, this section prevails.
  2           (o) The provisions of K.S.A. 60-206 and amendments thereto regard-
  3       ing the computation of time shall not be applicable in determining the
  4       effective date of suspension set out in subsection (d) or the time for
  5       requesting an administrative hearing set out in subsection (g). ``Calendar
  6       day'' when used in this section shall mean that every day shall be included
  7       in computations of time whether a week day, Saturday, Sunday or holiday.
  8           Sec. 3. K.S.A. 1997 Supp. 8-255 and 8-1002 are hereby repealed.
  9           Sec. 4. This act shall take effect and be in force from and after its
10       publication in the statute book.
11      
12