Session of 1998
                   
HOUSE BILL No. 2897
         
By Committee on Federal and State Affairs
         
2-12
            9             AN ACT concerning expungement of convictions and records; amending
10             K.S.A. 1997 Supp. 21-4619 and 38-1610 and repealing the existing
11             sections; also repealing K.S.A. 1997 Supp. 21-4619b.
12            
13       Be it enacted by the Legislature of the State of Kansas:
14           Section 1. K.S.A. 1997 Supp. 21-4619 is hereby amended to read as
15       follows: 21-4619. (a) Except as provided in subsections (b) and (c), any
16       person convicted in this state of a traffic infraction, cigarette or tobacco
17       infraction, misdemeanor or a class D or E felony, or for crimes committed
18       on or after July 1, 1993, nondrug crimes ranked in severity levels 6
19       through 10 or any felony ranked in severity level 4 of the drug grid, may
20       petition the convicting court for the expungement of such conviction if
21       three or more years have elapsed since the person: (1) Satisfied the sen-
22       tence imposed; or (2) was discharged from probation, a community cor-
23       rectional services program, parole, postrelease supervision, conditional
24       release or a suspended sentence.
25           (b) Except as provided in subsection (c), no person may petition for
26       expungement until five or more years have elapsed since the person sat-
27       isfied the sentence imposed or was discharged from probation, a com-
28       munity correctional services program, parole, postrelease supervision,
29       conditional release or a suspended sentence, if such person was convicted
30       of a class A, B or C felony, or for crimes committed on or after July 1,
31       1993, if convicted of an off-grid felony or any nondrug crime ranked in
32       severity levels 1 through 5 or any felony ranked in severity levels 1 through
33       3 of the drug grid, or:
34           (1) Vehicular homicide, as defined by K.S.A. 21-3405 and amend-
35       ments thereto or as prohibited by any law of another state which is in
36       substantial conformity with that statute;
37           (2) a violation of K.S.A. 8-1567 and amendments thereto, or a viola-
38       tion of any law of another state, which declares to be unlawful the acts
39       prohibited by that statute;
40           (3) driving while the privilege to operate a motor vehicle on the public
41       highways of this state has been canceled, suspended or revoked, as pro-
42       hibited by K.S.A. 8-262 and amendments thereto or as prohibited by any
43       law of another state which is in substantial conformity with that statute;

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  1           (4) perjury resulting from a violation of K.S.A. 8-261a and amend-
  2       ments thereto or resulting from the violation of a law of another state
  3       which is in substantial conformity with that statute;
  4           (5) violating the provisions of the fifth clause of K.S.A. 8-142 and
  5       amendments thereto, relating to fraudulent applications or violating the
  6       provisions of a law of another state which is in substantial conformity with
  7       that statute;
  8           (6) any crime punishable as a felony wherein a motor vehicle was
  9       used in the perpetration of such crime;
10           (7) failing to stop at the scene of an accident and perform the duties
11       required by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto,
12       or required by a law of another state which is in substantial conformity
13       with those statutes;
14           (8) violating the provisions of K.S.A. 40-3104 and amendments
15       thereto, relating to motor vehicle liability insurance coverage; or
16           (9) a violation of K.S.A. 21-3405b,   and amendments thereto prior to
17       its repeal.
18           (c) There shall be no expungement of convictions for the following
19       offenses or of convictions for an attempt to commit any of the following
20       offenses: (1) Rape as defined in subsection (a)(2) of K.S.A. 21-3502 and
21       amendments thereto; (2) indecent liberties with a child as defined in
22       K.S.A. 21-3503 and amendments thereto; (3) aggravated indecent liber-
23       ties with a child as defined in K.S.A. 21-3504 and amendments thereto;
24       (4) criminal sodomy as defined in subsection (a)(2) or (a)(3) of K.S.A. 21-
25       3505 and amendments thereto; (5) aggravated criminal sodomy as defined
26       in K.S.A. 21-3506 and amendments thereto; (6) indecent solicitation of a
27       child as defined in K.S.A. 21-3510 and amendments thereto; (7) aggra-
28       vated indecent solicitation of a child as defined in K.S.A. 21-3511 and
29       amendments thereto; (8) sexual exploitation of a child as defined in K.S.A.
30       21-3516 and amendments thereto; (9) aggravated incest as defined in
31       K.S.A. 21-3603 and amendments thereto; (10) endangering a child as
32       defined in K.S.A. 21-3608 and amendments thereto; (11) abuse of a child
33       as defined in K.S.A. 21-3609 and amendments thereto;   or (12) capital
34       murder as defined in K.S.A. 21-3439 and amendments thereto; (13) mur-
35       der in the first degree as defined in K.S.A. 21-3401 and amendments
36       thereto; (14) murder in the second degree as defined in K.S.A. 21-3402
37       and amendments thereto; (15) voluntary manslaughter as defined in
38       K.S.A. 21-3403 and amendments thereto; (16) involuntary manslaughter
39       as defined in K.S.A. 21-3404 or 21-3442 and amendments thereto; or (17)
40       any conviction for any offense in effect at any time prior to the effective
41       date of this act, that is comparable to any offense as provided in this
42       subsection.
43           (d) When a petition for expungement is filed, the court shall set a

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  1       date for a hearing thereon and shall give notice thereof to the prosecuting
  2       attorney. The petition shall state: (1) The defendant's full name; (2) the
  3       full name of the defendant at the time of arrest and conviction, if different
  4       than the defendant's current name; (3) the defendant's sex, race and date
  5       of birth; (4) the crime for which the defendant was convicted; (5) the
  6       date of the defendant's conviction; and (6) the identity of the convicting
  7       court. There shall be no docket fee for filing a petition pursuant to this
  8       section. All petitions for expungement shall be docketed in the original
  9       criminal action. Any person who may have relevant information about the
10       petitioner may testify at the hearing. 5he court may inquire into the back-
11       ground of the petitioner and shall have access to any reports or records
12       relating to the petitioner that are on file with the secretary of corrections
13       or the Kansas parole board.
14           (e) At the hearing on the petition, the court shall order the peti-
15       tioner's conviction expunged if the court finds that:
16           (1) The petitioner has not been convicted of a felony in the past two
17       years and no proceeding involving any such crime is presently pending
18       or being instituted against the petitioner;
19           (2) the circumstances and behavior of the petitioner warrant the
20       expungement; and
21           (3) the expungement is consistent with the public welfare.
22           (f) When the court has ordered a conviction expunged, the order of
23       expungement shall state the information required to be contained in the
24       petition. The clerk of the court shall send a certified copy of the order of
25       expungement to the Kansas bureau of investigation which shall notify the
26       federal bureau of investigation, the secretary of corrections and any other
27       criminal justice agency which may have a record of the conviction. After
28       the order of expungement is entered, the petitioner shall be treated as
29       not having been convicted of the crime, except that:
30           (1) Upon conviction for any subsequent crime, the conviction that
31       was expunged may be considered as a prior conviction in determining the
32       sentence to be imposed;
33           (2) the petitioner shall disclose that the conviction occurred if asked
34       about previous convictions (A) in any application for employment as a
35       detective with a private detective agency, as defined by K.S.A. 75-7b01
36       and amendments thereto; as security personnel with a private patrol op-
37       erator, as defined by K.S.A. 75-7b01 and amendments thereto; with a
38       criminal justice agency, as defined by K.S.A. 22-4701 and amendments
39       thereto; or with an institution, as defined in K.S.A. 76-12a01 and amend-
40       ments thereto, of the department of social and rehabilitation services; (B)
41       in any application for admission, or for an order of reinstatement, to the
42       practice of law in this state; (C) to aid in determining the petitioner's
43       qualifications for employment with the Kansas lottery or for work in sen-

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  1       sitive areas within the Kansas lottery as deemed appropriate by the ex-
  2       ecutive director of the Kansas lottery; (D) to aid in determining the pe-
  3       titioner's qualifications for executive director of the Kansas racing
  4       commission, for employment with the commission or for work in sensitive
  5       areas in parimutuel racing as deemed appropriate by the executive direc-
  6       tor of the commission, or to aid in determining qualifications for licensure
  7       or renewal of licensure by the commission;   or (E) upon application for a
  8       commercial driver's license under K.S.A. 8-2,125 through 8-2,142, and
  9       amendments thereto; (F) the petitioner's qualification to be an employee
10       of the state gaming agency; or (G) the petitioner's qualifications to be an
11       employee of a tribal gaming commission or to hold a license issued pur-
12       suant to a tribal-state gaming compact;
13           (3) the court, in the order of expungement, may specify other cir-
14       cumstances under which the conviction is to be disclosed;
15           (4) the conviction may be disclosed in a subsequent prosecution for
16       an offense which requires as an element of such offense a prior conviction
17       of the type expunged; and
18           (5) upon commitment to the custody of the secretary of corrections,
19       any previously expunged record in the possession of the secretary of cor-
20       rections may be reinstated and the expungement disregarded, and the
21       record continued for the purpose of the new commitment.
22           (g) Whenever a person is convicted of a crime, pleads guilty and pays
23       a fine for a crime, is placed on parole, postrelease supervision or proba-
24       tion, is assigned to a community correctional services program, is granted
25       a suspended sentence or is released on conditional release, the person
26       shall be informed of the ability to expunge the conviction.
27           (h) Subject to the disclosures required pursuant to subsection (f), in
28       any application for employment, license or other civil right or privilege,
29       or any appearance as a witness, a person whose conviction of a crime has
30       been expunged under this statute may state that such person has never
31       been convicted of such crime, but the expungement of a felony conviction
32       does not relieve an individual of complying with any state or federal law
33       relating to the use or possession of firearms by persons convicted of a
34       felony.
35           (i) Whenever the record of any conviction has been expunged under
36       the provisions of this section or under the provisions of any other existing
37       or former statute, the custodian of the records of arrest, conviction and
38       incarceration relating to that crime shall not disclose the existence of such
39       records, except when requested by:
40           (1) The person whose record was expunged;
41           (2) a criminal justice agency, private detective agency or a private
42       patrol operator, and the request is accompanied by a statement that the
43       request is being made in conjunction with an application for employment

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  1       with such agency or operator by the person whose record has been ex-
  2       punged;
  3           (3) a court, upon a showing of a subsequent conviction of the person
  4       whose record has been expunged;
  5           (4) the secretary of social and rehabilitation services, or a designee of
  6       the secretary, for the purpose of obtaining information relating to em-
  7       ployment in an institution, as defined in K.S.A. 76-12a01 and amend-
  8       ments thereto, of the department of social and rehabilitation services of
  9       any person whose record has been expunged;
10           (5) a person entitled to such information pursuant to the terms of the
11       expungement order;
12           (6) a prosecuting attorney, and such request is accompanied by a
13       statement that the request is being made in conjunction with a prosecu-
14       tion of an offense that requires a prior conviction as one of the elements
15       of such offense;
16           (7) the supreme court, the clerk or disciplinary administrator thereof,
17       the state board for admission of attorneys or the state board for discipline
18       of attorneys, and the request is accompanied by a statement that the
19       request is being made in conjunction with an application for admission,
20       or for an order of reinstatement, to the practice of law in this state by the
21       person whose record has been expunged;
22           (8) the Kansas lottery, and the request is accompanied by a statement
23       that the request is being made to aid in determining qualifications for
24       employment with the Kansas lottery or for work in sensitive areas within
25       the Kansas lottery as deemed appropriate by the executive director of the
26       Kansas lottery;
27           (9) the governor or the Kansas racing commission, or a designee of
28       the commission, and the request is accompanied by a statement that the
29       request is being made to aid in determining qualifications for executive
30       director of the commission, for employment with the commission, for
31       work in sensitive areas in parimutuel racing as deemed appropriate by
32       the executive director of the commission or for licensure, renewal of
33       licensure or continued licensure by the commission;   or
34           (10) the Kansas sentencing commission  .; or
35           (11) the state gaming agency, and the request is accompanied by a
36       statement that the request is being made to aid in determining qualifica-
37       tions: (A) To be an employee of the state gaming agency; or (B) to be an
38       employee of a tribal gaming commission or to hold a license issued pur-
39       suant to a tribal-state gaming compact.
40           Sec. 2. K.S.A. 1997 Supp. 38-1610 is hereby amended to read as
41       follows: 38-1610. (a) Except as provided in subsection (b), any records or
42       files specified in this code concerning a juvenile offender may be ex-
43       punged upon application to a judge of the court of the county in which

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  1       the records or files are maintained. The application for expungement may
  2       be made by the person who is the juvenile offender or, if the person is a
  3       juvenile, by the person's parent or next friend.
  4           (b) There shall be no expungement of records or files concerning acts
  5       committed by a juvenile which, if committed by an adult, would constitute
  6       a violation of K.S.A. 21-3401, 21-3402, 21-3403, 21-3404, 21-3442, 21-
  7       3503, 21-3504, 21-3506, 21-3509, 21-3510, 21-3511, 21-3516, 21-3603,
  8       21-3608 or 21-3609 and amendments thereto or which would constitute
  9       an attempt to commit a violation of any of the offenses specified in this
10       subsection.
11           (c) When a petition for expungement is filed, the court shall set a
12       date for a hearing on the petition and shall give notice thereof to the
13       county or district attorney. The petition shall state: (1) The juvenile's full
14       name; (2) the full name of the juvenile at the time of the trial, if different
15       than (1); (3) the juvenile's sex and date of birth; (4) the offense for which
16       the juvenile was adjudicated; (5) the date of the trial; and (6) the identity
17       of the trial court. There shall be no docket fee for filing a petition pursuant
18       to this section. All petitions for expungement shall be docketed in the
19       original action. Any person who may have relevant information about the
20       petitioner may testify at the hearing. The court may inquire into the
21       background of the petitioner.
22           (d) (1) After hearing, the court shall order the expungement of the
23       records and files if the court finds that:
24           (A) The person has reached 23 years of age or that two years have
25       elapsed since the final discharge of the person;
26           (B) since the final discharge of the person, the person has not been
27       convicted of a felony or of a misdemeanor other than a traffic offense or
28       a juvenile offender under the Kansas juvenile justice code and no pro-
29       ceedings are pending seeking such a conviction or adjudication; and
30           (C) the circumstances and behavior of the petitioner warrant
31       expungement.
32           (2) The court may require that all court costs, fees and restitution
33       shall be paid.
34           (e) Upon entry of an order expunging records or files, the offense
35       which the records or files concern shall be treated as if it never occurred,
36       except that upon conviction of a crime or adjudication in a subsequent
37       action under this code the offense may be considered in determining the
38       sentence to be imposed. The person, the court and all law enforcement
39       officers and other public offices and agencies shall properly reply on in-
40       quiry that no record or file exists with respect to the person. Inspection
41       of the expunged files or records thereafter may be permitted by order of
42       the court upon petition by the person who is the subject thereof. The
43       inspection shall be limited to inspection by the person who is the subject

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  1       of the files or records and those persons designated by that person.
  2           (f) Copies of any order made pursuant to subsection (a) or (c) shall
  3       be sent to each public officer and agency in the county having possession
  4       of any records or files ordered to be expunged. If the officer or agency
  5       fails to comply with the order within a reasonable time after its receipt,
  6       the officer or agency may be adjudged in contempt of court and punished
  7       accordingly.
  8           (g) The court shall inform any juvenile who has been adjudicated a
  9       juvenile offender of the provisions of this section.
10           (h) Nothing in this section shall be construed to prohibit the main-
11       tenance of information relating to an offense after records or files con-
12       cerning the offense have been expunged if the information is kept in a
13       manner that does not enable identification of the offender.
14           (i) Nothing in this section shall be construed to permit or require
15       expungement of files or records related to a child support order registered
16       pursuant to the Kansas juvenile justice code.
17           (j) Whenever the records or files of any adjudication have been ex-
18       punged under the provisions of this section, the custodian of the records
19       or files of adjudication relating to that offense shall not disclose the ex-
20       istence of such records or files, except when requested by:
21           (1) The person whose record was expunged;
22           (2) a criminal justice agency, private detective agency or a private
23       patrol operator, and the request is accompanied by a statement that the
24       request is being made in conjunction with an application for employment
25       with such agency or operator by the person whose record has been ex-
26       punged;
27           (3) a court, upon a showing of a subsequent conviction of the person
28       whose record has been expunged;
29           (4) the secretary of social and rehabilitation services, or a designee of
30       the secretary, for the purpose of obtaining information relating to em-
31       ployment in an institution, as defined in K.S.A. 76-12a01 and amend-
32       ments thereto, of the department of social and rehabilitation services of
33       any person whose record has been expunged;
34           (5) a person entitled to such information pursuant to the terms of the
35       expungement order;
36           (6) the Kansas lottery, and the request is accompanied by a statement
37       that the request is being made to aid in determining qualifications for
38       employment with the Kansas lottery or for work in sensitive areas within
39       the Kansas lottery as deemed appropriate by the executive director of the
40       Kansas lottery;
41           (7) the governor or the Kansas racing commission, or a designee of
42       the commission, and the request is accompanied by a statement that the
43       request is being made to aid in determining qualifications for executive

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  1       director of the commission, for employment with the commission, for
  2       work in sensitive areas in parimutuel racing as deemed appropriate by
  3       the executive director of the commission or for licensure, renewal of
  4       licensure or continued licensure by the commission; or
  5           (8) the Kansas sentencing commission.
  6           Sec. 3. K.S.A. 1997 Supp. 21-4619, 21-4619b and 38-1610 are hereby
  7       repealed.
  8           Sec. 4. This act shall take effect and be in force from and after its
  9       publication in the statute book.
10      
11