Session of 1998
                   
SENATE BILL No. 407
         
By Special Committee on Judiciary
         
12-17
            9             AN ACT concerning crimes, criminal procedure and punishment; relating
10             to the Kansas offender registration act; increasing penalty to felony;
11             relating to collection of specimens; amending K.S.A. 22-4903 and
12             K.S.A. 1997 Supp. 21-2511, 22-4902, 22-4904 and 22-4905 and re-
13             pealing the existing sections.
14            
15       Be it enacted by the Legislature of the State of Kansas:
16           Section 1. K.S.A. 1997 Supp. 21-2511 is hereby amended to read as
17       follows: 21-2511. (a) Any person convicted as an adult or adjudicated as
18       a juvenile offender because of the commission of an unlawful sexual act
19       as defined in subsection (4) of K.S.A. 21-3501, and amendments thereto,
20       or convicted as an adult or adjudicated as a juvenile offender because of
21       the commission of a violation of K.S.A. 21-3401, 21-3402, 21-3510, 21-
22       3511, 21-3516, 21-3602, 21-3603 or 21-3609, and amendments thereto,
23       including an attempt, as defined in K.S.A. 21-3301, and amendments
24       thereto, conspiracy, as defined in K.S.A. 21-3302, and amendments
25       thereto, or criminal solicitation, as defined in K.S.A. 21-3303, and amend-
26       ments thereto, any offense which requires such person to register as an
27       offender pursuant to the Kansas offender registration act, K.S.A. 22-4901
28       et seq., or a violation of subsection (a)(1) of K.S.A. 21-3505, 21-3508,
29       21-3602 or 21-3609 and amendments thereto, including an attempt, con-
30       spiracy or criminal solicitation, as defined in K.S.A. 21-3301, 21-3302 or
31       21-3303 and amendments thereto, of any such offenses provided in this
32       subsection regardless of the sentence imposed, shall be required to sub-
33       mit specimens of blood and saliva to the Kansas bureau of investigation
34       in accordance with the provisions of this act, if such person is:
35           (1) Convicted as an adult or adjudicated as a juvenile offender be-
36       cause of the commission of a crime specified in subsection (a) on or after
37       the effective date of this act;
38           (2) ordered institutionalized as a result of being convicted as an adult
39       or adjudicated as a juvenile offender because of the commission of a crime
40       specified in subsection (a) on or after the effective date of this act; or
41           (3) convicted as an adult or adjudicated as a juvenile offender because
42       of the commission of a crime specified in this subsection before the ef-
43       fective date of this act and is presently confined as a result of such con-

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  1       viction or adjudication in any state correctional facility or county jail or is
  2       presently serving a sentence under K.S.A. 21-4603, 22-3717 or 38-1663,
  3       and amendments thereto.
  4           (b) Notwithstanding any other provision of law, the Kansas bureau of
  5       investigation is authorized to obtain fingerprints and other identifiers for
  6       all persons, whether juveniles or adults, covered by this act.
  7           (c) Any person required by paragraphs (a)(1) and (a)(2) to provide
  8       specimens of blood and saliva shall be ordered by the court to have spec-
  9       imens of blood and saliva collected within 10 days after sentencing or
10       adjudication:
11           (1) If placed directly on probation, that person must provide speci-
12       mens of blood and saliva, at a collection site designated by the Kansas
13       bureau of investigation. Failure to cooperate with the collection of the
14       specimens and any deliberate act by that person intended to impede,
15       delay or stop the collection of the specimens shall be punishable as con-
16       tempt of court and constitute grounds to revoke probation;
17           (2) if sentenced to the secretary of corrections, the specimens of
18       blood and saliva will be obtained immediately upon arrival at the Topeka
19       correctional facility; or
20           (3) if a juvenile offender is placed in the custody of the commissioner
21       of juvenile justice, in a youth residential facility or in a juvenile correc-
22       tional facility, the specimens of blood and saliva will be obtained imme-
23       diately upon arrival.
24           (d) Any person required by paragraph (a)(3) to provide specimens of
25       blood and saliva shall be required to provide such samples prior to final
26       discharge or conditional release at a collection site designated by the
27       Kansas bureau of investigation.
28           (e) The Kansas bureau of investigation shall provide all specimen vi-
29       als, mailing tubes, labels and instructions necessary for the collection of
30       blood and saliva samples. The collection of samples shall be performed
31       in a medically approved manner. No person authorized by this section to
32       withdraw blood and collect saliva, and no person assisting in the collection
33       of these samples shall be liable in any civil or criminal action when the
34       act is performed in a reasonable manner according to generally accepted
35       medical practices. The withdrawal of blood for purposes of this act may
36       be performed only by: (1) A person licensed to practice medicine and
37       surgery or a person acting under the supervision of any such licensed
38       person; (2) a registered nurse or a licensed practical nurse; or (3) any
39       qualified medical technician including, but not limited to, an emergency
40       medical technician-intermediate or mobile intensive care technician, as
41       those terms are defined in K.S.A. 65-6112, and amendments thereto, or
42       a phlebotomist. The samples shall thereafter be forwarded to the Kansas
43       bureau of investigation for analysis and categorizing into genetic marker

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  1       groupings.
  2           (f) The genetic marker groupings shall be maintained by the Kansas
  3       bureau of investigation. The Kansas bureau of investigation shall establish,
  4       implement and maintain a statewide automated personal identification
  5       system capable of, but not limited to, classifying, matching and storing
  6       analysis of DNA (deoxyribonucleic acid) and other biological molecules.
  7       The genetic marker grouping analysis information and identification sys-
  8       tem as established by this act shall be compatible with the procedures
  9       specified by the federal bureau of investigation's combined DNA index
10       system (CODIS). The Kansas bureau of investigation may participate in
11       the CODIS program by sharing data and utilizing compatible test pro-
12       cedures, laboratory equipment, supplies and computer software.
13           (g) The genetic marker grouping analysis information obtained pur-
14       suant to this act shall be confidential and shall be released only to law
15       enforcement officers of the United States, of other states or territories,
16       of the insular possessions of the United States, or foreign countries duly
17       authorized to receive the same, to all law enforcement officers of the state
18       of Kansas and to all prosecutor's agencies.
19           (h) The Kansas bureau of investigation shall be the state central re-
20       pository for all genetic marker grouping analysis information obtained
21       pursuant to this act. The Kansas bureau of investigation may promulgate
22       rules and regulations for the form and manner of the collection of blood
23       and saliva samples and other procedures for the operation of this act. The
24       provisions of the Kansas administrative procedure act shall apply to all
25       actions taken under the rules and regulations so promulgated.
26           Sec. 2. K.S.A. 1997 Supp. 22-4902 is hereby amended to read as
27       follows: 22-4902. As used in this act, unless the context otherwise re-
28       quires:
29           (a) ``Offender'' means: (1) A sex offender as defined in subsection (b);
30       (2) a violent offender as defined in subsection (d); (3) any person who,
31       on and after the effective date of this act, is convicted of any of the
32       following crimes when the victim is less than 18 years of age:
33           (A) Kidnapping as defined in K.S.A. 21-3420 and amendments
34       thereto, except by a parent;
35           (B) aggravated kidnapping as defined in K.S.A. 21-3421 and amend-
36       ments thereto; or
37           (C) criminal restraint as defined in K.S.A. 21-3424 and amendments
38       thereto, except by a parent;
39           (4) any person convicted of any of the following criminal sexual con-
40       duct if one of the parties involved is less than 18 years of age:
41           (A) Adultery as defined by K.S.A. 21-3507, and amendments thereto;
42           (B) criminal sodomy as defined by subsection (a)(1) of K.S.A. 21-
43       3505, and amendments thereto;

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  1           (C) promoting prostitution as defined by K.S.A. 21-3513, and amend-
  2       ments thereto;
  3           (D) patronizing a prostitute as defined by K.S.A. 21-3515, and
  4       amendments thereto;
  5           (E) lewd and lascivious behavior as defined by K.S.A. 21-3508, and
  6       amendment thereto; or
  7           (F) unlawful sexual relations as defined by K.S.A. 21-3520, and
  8       amendments thereto;
  9           (5) any conviction for an offense in effect at any time prior to the
10       effective date of this act, that is comparable to any crime defined in sub-
11       section (3) or (4), or any federal or other state conviction for an offense
12       that under the laws of this state would be an offense defined in subsection
13       (3) or (4); or
14           (6) an attempt, conspiracy or criminal solicitation, as defined in
15       K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of an of-
16       fense defined in subsection (3) or (4).
17           Upon such conviction, the court shall certify that the person is an of-
18       fender subject to the provisions of K.S.A. 22-4901 et seq. and amend-
19       ments thereto and shall include this certification in the order of commit-
20       ment. Convictions which result from or are connected with the same act,
21       or result from crimes committed at the same time, shall be counted for
22       the purpose of this section as one conviction. Any conviction set aside
23       pursuant to law is not a conviction for purposes of this section. A convic-
24       tion from another state shall constitute a conviction for purposes of this
25       section.
26           (b) ``Sex offender'' includes any person who, after the effective date
27       of this act, is convicted of any sexually violent crime set forth in subsection
28       (c). Upon such conviction, the court shall certify that the person is a sex
29       offender and shall include this certification in the order of commitment.
30       Convictions which result from or are connected with the same act, or
31       result from crimes committed at the same time, shall be counted for the
32       purpose of this section as one conviction. Any conviction set aside pur-
33       suant to law is not a conviction for purposes of this section. A conviction
34       from another state shall constitute a conviction for purposes of this sec-
35       tion.
36           (c) ``Sexually violent crime'' means:
37           (1) Rape as defined in K.S.A. 21-3502 and amendments thereto;
38           (2) indecent liberties with a child as defined in K.S.A. 21-3503 and
39       amendments thereto;
40           (3) aggravated indecent liberties with a child as defined in K.S.A. 21-
41       3504 and amendments thereto;
42           (4) criminal sodomy as defined in subsection (a)(2) and (a)(3) of
43       K.S.A. 21-3505 and amendments thereto;

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  1           (5) aggravated criminal sodomy as defined in K.S.A. 21-3506 and
  2       amendments thereto;
  3           (6) indecent solicitation of a child as defined by K.S.A. 21-3510 and
  4       amendments thereto;
  5           (7) aggravated indecent solicitation of a child as defined by K.S.A.
  6       21-3511 and amendments thereto;
  7           (8) sexual exploitation of a child as defined by K.S.A. 21-3516 and
  8       amendments thereto;
  9           (9) sexual battery as defined by K.S.A. 21-3517 and amendments
10       thereto;
11           (10) aggravated sexual battery as defined by K.S.A. 21-3518 and
12       amendments thereto;
13           (11) aggravated incest as defined by K.S.A. 21-3603 and amendments
14       thereto; or
15           (12) any conviction for a offense in effect at any time prior to the
16       effective date of this act, that is comparable to a sexually violent crime as
17       defined in subparagraphs (1) through (11), or any federal or other state
18       conviction for a felony offense that under the laws of this state would be
19       a sexually violent crime as defined in this section;
20           (13) an attempt, conspiracy or criminal solicitation, as defined in
21       K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of a sex-
22       ually violent crime, as defined in this section; or
23           (14) any act which at the time of sentencing for the offense has been
24       determined beyond a reasonable doubt to have been sexually motivated.
25       As used in this subparagraph, ``sexually motivated'' means that one of the
26       purposes for which the defendant committed the crime was for the pur-
27       pose of the defendant's sexual gratification.
28           (d) ``Violent offender'' includes any person who, after the effective
29       date of this act, is convicted of any of the following crimes:
30           (1) Capital murder as defined by K.S.A. 21-3439 and amendments
31       thereto;
32           (2) murder in the first degree as defined by K.S.A. 21-3401 and
33       amendments thereto;
34           (3) murder in the second degree as defined by K.S.A. 21-3402 and
35       amendments thereto;
36           (4) voluntary manslaughter as defined by K.S.A. 21-3403 and amend-
37       ments thereto;
38           (5) involuntary manslaughter as defined by K.S.A. 21-3404 and
39       amendments thereto; or
40           (6) any conviction for an offense in effect at any time prior to the
41       effective date of this act, that is comparable to any crime defined in this
42       subsection, or any federal or other state conviction for an offense that
43       under the laws of this state would be an offense defined in this subsection;

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  1       or
  2           (7) an attempt, conspiracy or criminal solicitation, as defined in
  3       K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of an of-
  4       fense defined in this subsection.
  5           Upon such conviction, the court shall certify that the person is an of-
  6       fender subject to the provisions of K.S.A. 22-4901 et seq. and amend-
  7       ments thereto and shall include this certification in the order of commit-
  8       ment. Convictions which result from or are connected with the same act,
  9       or result from crimes committed at the same time, shall be counted for
10       the purpose of this section as one conviction. Any conviction set aside
11       pursuant to law is not a conviction for purposes of this section. A convic-
12       tion from another state shall constitute a conviction for purposes of this
13       section.
14           (e) ``Law enforcement agency having jurisdiction'' means the sheriff
15       of the county in which the offender expects to reside upon the offender's
16       discharge, parole or release.
17           (f) Upon any such conviction as provided in this section, the court
18       shall certify that the person is an offender subject to the provisions of
19       K.S.A. 22-4901 et seq. and amendments thereto and shall include this
20       certification in the order of commitment. Failure to certify by the court
21       as provided by this section does not alleviate any person required to reg-
22       ister from any of the requirements imposed upon such person by the
23       Kansas offender registration act. Convictions which result from or are
24       from or connected with the same act, or result from crimes committed at
25       the same time, shall be counted for the purpose of this section as one
26       conviction. Any conviction set aside pursuant to law is not a conviction
27       for purposes of this section. A conviction from another state shall consti-
28       tute a conviction for purposes of this section.
29           Sec. 3. K.S.A. 22-4903 is hereby amended to read as follows: 22-
30       4903. Any person who is required to register as provided in this act who
31       violates any of the provisions of this act is guilty of a class A nonperson
32       misdemeanor severity level 10, nonperson felony.
33           Sec. 4. K.S.A. 1997 Supp. 22-4904 is hereby amended to read as
34       follows: 22-4904. (a) (1) Except as provided in subsection (a)(2), within
35       15 10 days of the offender coming into any county in which the offender
36       resides or is temporarily domiciled for more than 15 10 days, the offender
37       shall register with the sheriff of the county.
38           (2) Within 15 10 days of the offender coming into any county in which
39       the offender resides or temporarily resides for more than 15 10 days, any
40       offender who has provided the information and completed and signed
41       the registration form as required in K.S.A. 22-4905 and amendments
42       thereto, shall verify with the sheriff of the county that the sheriff has
43       received such offender's information and registration form.

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  1           (3) For persons required to register as provided in subsection (a)(1),
  2       the sheriff shall: (A) Explain the duty to register and the procedure for
  3       registration;
  4           (B) obtain the information required for registration as provided in
  5       K.S.A. 22-4907 and amendments thereto;
  6           (C) inform the offender that the offender must give written notice of
  7       any change of address within 10 days of a change in residence to the law
  8       enforcement agency where last registered and the Kansas bureau of in-
  9       vestigation;
10           (D) inform the offender that if the offender changes residence to
11       another state, the offender must inform the law enforcement agency
12       where last registered and the Kansas bureau of investigation of such
13       change in residence and must register in the new state within 10 days of
14       such change in residence; and
15           (E) require the offender to read and sign the registration form which
16       shall include a statement that the requirements provided in this subsec-
17       tion have been explained to the offender.
18           (4) Such sheriff, within three days of receipt of the initial registration
19       shall forward this information to the Kansas bureau of investigation.
20           (5) Notwithstanding any other provision of law, if a diversionary
21       agreement or probation order, either adult or juvenile, requires registra-
22       tion under the Kansas offender registration act then all provisions of that
23       act shall apply, except that the term of registration shall be controlled by
24       such diversionary agreement or probation order.
25           (b) (1) If any person required to register as provided in this act
26       changes the address of the person's residence, the offender, within 10
27       days, shall inform in writing the Kansas bureau of investigation of the new
28       address.
29           (2) After receipt of the change of address, the Kansas bureau of in-
30       vestigation shall forward this information to the law enforcement agency
31       having jurisdiction of the new place of residence within 10 days of such
32       receipt of the change of address.
33           (c) For any person required to register as provided in this act, every
34       90 days after the person's initial registration date during the period the
35       person is required to register, the following applies:
36           (1) The Kansas bureau of investigation shall mail a nonforwardable
37       verification form to the last reported address of the person.
38           (2) The person shall mail the verification form to the Kansas bureau
39       of investigation within 10 days after receipt of the form.
40           (3) The verification form shall be signed by the person, and shall state
41       that the person still resides at the address last reported to the Kansas
42       bureau of investigation.
43           (4) If the person fails to mail the verification form to the Kansas

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  1       bureau of investigation within 10 days after receipt of the form, the person
  2       shall be in violation of the Kansas offender registration act.
  3           (5) Nothing contained in this section shall be construed to alleviate
  4       any person required to register as provided in this act from meeting the
  5       requirements prescribed in subsection (a)(1), (a)(2) and (b)(1).
  6           Sec. 5. K.S.A. 1997 Supp. 22-4905 is hereby amended to read as
  7       follows: 22-4905. (a) (1) Any offender, who is discharged or paroled from
  8       a prison, hospital or other institution or facility involving a violation of any
  9       crime as provided in subsection (a), (b) or (d) of K.S.A. 22-4902 and
10       amendments thereto, prior to discharge, parole or release, shall be in-
11       formed by the staff of the facility in which the offender was confined of
12       the duty to register as provided in this act.
13           (2) (A) The staff of the facility shall: (i) Explain the duty to register
14       and the procedure for registration;
15           (ii) obtain the information required for registration as provided in
16       K.S.A. 22-4907 and amendments thereto;
17           (iii) inform the offender that the offender must give written notice
18       of any change of address within 10 days of a change in residence to the
19       law enforcement agency where last registered and the Kansas bureau of
20       investigation;
21           (iv) inform the offender that if the offender changes residence to
22       another state, the offender must inform the law enforcement agency
23       where last registered and the Kansas bureau of investigation of such
24       change in residence and must register in the new state within 10 days of
25       such change in residence; and
26           (v) require the offender to read and sign the registration form which
27       shall include a statement that the requirements provided in this subsec-
28       tion have been explained to the offender.
29           (B) The staff of the facility shall give one copy of the form to the
30       person, within three days, and shall send two copies of the form provided
31       by subsection (2)(A)(v) to the Kansas bureau of investigation, which shall
32       then forward one copy to the law enforcement agency having jurisdiction
33       where the person expects to reside upon discharge, parole or release. The
34       Kansas bureau of investigation must immediately ensure that such infor-
35       mation is entered in the state law enforcement record system. The Kansas
36       bureau of investigation shall transmit such conviction data and finger-
37       prints to the federal bureau of investigation.
38           (b) (1) Any offender who is released on probation, receives a sus-
39       pended sentence, sentenced to community corrections or released on
40       postrelease supervision because of the commission of any crime as pro-
41       vided in subsection (a), (b) or (d) of K.S.A. 22-4902 and amendments
42       thereto, prior to release, shall be informed of the offenders duty to reg-
43       ister as provided in this act by the court in which the offender is convicted.

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  1           (2) (A) The court shall: (i) Explain the duty to register and the pro-
  2       cedure for registration;
  3           (ii) obtain the information required for registration as provided in
  4       K.S.A. 22-4907 and amendments thereto;
  5           (iii) inform the offender that the offender must give written notice
  6       of any change of address within 10 days of a change in residence to the
  7       law enforcement agency where last registered and the Kansas bureau of
  8       investigation;
  9           (iv) inform the offender that if the offender changes residence to
10       another state, the offender must inform the law enforcement agency
11       where last registered of such change in residence and must register in
12       the new state within 10 days of such change in residence; and
13           (v) require the offender to read and sign the registration form which
14       shall include a statement that the requirements provided in this subsec-
15       tion have been explained to the offender.
16           (B) The court shall give one copy of the form to the person and,
17       within three days, shall send two copies of the form provided by subsec-
18       tion (2)(A)(v) to the Kansas bureau of investigation which shall then for-
19       ward one copy to the law enforcement agency having jurisdiction where
20       the person expects to reside upon release. The Kansas bureau of inves-
21       tigation must immediately ensure that such information is entered in the
22       state law enforcement record system. The Kansas bureau of investigation
23       shall transmit such conviction data and fingerprints to the federal bureau
24       of investigation.
25           New Sec. 6. Nothing in the Kansas offender registration act shall
26       create a cause of action against the state or an employee of the state acting
27       within the scope of the employee's employment as a result of requiring
28       an offender to register or an offender's failure to register.
29           Sec. 7. K.S.A. 22-4903 and K.S.A. 1997 Supp. 21-2511, 22-4902, 22-
30       4904 and 22-4905 are hereby repealed.
31           Sec. 8. This act shall take effect and be in force from and after its
32       publication in the statute book.
33