Session of 1998
                   
SENATE BILL No. 651
         
By Committee on Judiciary
         
2-12
            9             AN ACT concerning certain alcohol and drug-related offenses; relating
10             to suspension and restriction of driving privileges; ignition interlock
11             devices; amending K.S.A. 12-4416 and 22-2909 and K.S.A. 1997 Supp.
12             8-262, 8-1008, 8-1014, 8-1015, 8-1016 and 8-1567 and repealing the
13             existing sections.
14            
15       Be it enacted by the Legislature of the State of Kansas:
16           Section 1. K.S.A. 1997 Supp. 8-262 is hereby amended to read as
17       follows: 8-262. (a) (1) Any person who drives a motor vehicle on any
18       highway of this state at a time when such person's privilege so to do is
19       canceled, suspended or revoked shall be guilty of a: (A) Class B nonperson
20       misdemeanor on the first conviction; (B) class A nonperson misdemeanor
21       on the second conviction; and (C) severity level 9, nonperson felony on
22       a third or subsequent conviction.
23           (2) No person shall be convicted under this section if such person
24       was entitled at the time of arrest under K.S.A. 8-257, and amendments
25       thereto, to the return of such person's driver's license or was, at the time
26       of arrest, eligible under K.S.A. 8-256, and amendments thereto, to apply
27       for a new license to operate a motor vehicle.
28           (3) Except as otherwise provided by subsection (a)(4), every person
29       convicted under this section shall be sentenced to at least five days' im-
30       prisonment and fined at least $100 and upon a second or subsequent
31       conviction shall not be eligible for parole until completion of five days'
32       imprisonment.
33           (4) If a person (A) is convicted of a violation of this section, commit-
34       ted while the person's privilege to drive was suspended or revoked for a
35       violation of K.S.A. 8-1567, and amendments thereto, or any ordinance of
36       any city or a law of another state, which ordinance or law prohibits the
37       acts prohibited by that statute, and (B) is or has been also convicted of a
38       violation of K.S.A. 8-1567, and amendments thereto, or of a municipal
39       ordinance or law of another state, which ordinance or law prohibits the
40       acts prohibited by that statute, committed while the person's privilege to
41       drive was so suspended or revoked, the person shall not be eligible for
42       suspension of sentence, probation or parole until the person has served
43       at least 90 days' imprisonment, and any fine imposed on such person shall

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  1       be in addition to such a term of imprisonment.
  2           (b) The division, upon receiving a record of the conviction of any
  3       person under this section, or any ordinance of any city or a law of another
  4       state which is in substantial conformity with this section, upon a charge
  5       of driving a vehicle while the license of such person is revoked or sus-
  6       pended, shall extend the period of such suspension or revocation for an
  7       additional period of 90 days and if the person's driving privileges are
  8       suspended pursuant to K.S.A. 8-1014 and amendments thereto, the divi-
  9       sion shall extend the period of suspension or revocation indefinitely.
10           (c) For any person whose driving privileges are suspended indefi-
11       nitely under subsection (b), the division shall restrict the person's driving
12       privileges for one year, to driving only a motor vehicle equipped with an
13       ignition interlock device, approved by the division and maintained at the
14       person's expense and only under circumstances provided by K.S.A. 8-292
15       and amendments thereto. The division shall not issue the restricted license
16       under this subsection until at least 90 days have lapsed since the date of
17       indefinite suspension and after the person has provided proof of instal-
18       lation of an approved ignition interlock device.
19             (c) In addition to extension of the period of suspension or revocation
20       under subsection (b), if the conviction is for a violation committed after
21       June 30, 1994, and before July 1, 1996, and committed while the person's
22       driving privileges are suspended pursuant to K.S.A. 8-1014 and amend-
23       ments thereto, the division, upon completion of the extended period of
24       suspension, shall restrict the person's driving privileges for an additional
25       120 days to driving only a motor vehicle equipped with an ignition inter-
26       lock device, as defined by K.S.A. 8-1013 and amendments thereto, ap-
27       proved by the division and obtained, installed and maintained at the per-
28       son's expense.
29           On or before February 1, 1996, the division shall report to the legis-
30       lature regarding the use of the provisions of this subsection and making
31       recommendations concerning continuation or modification of such pro-
32       visions.
33           (d) Upon the successful completion of the requirements of subsection
34       (c), the division shall authorize removal of the ignition interlock device,
35       and reinstate the person's driving privileges.
36             (d) (e) For the purposes of determining whether a conviction is a
37       first, second, third or subsequent conviction in sentencing under this sec-
38       tion, ``conviction'' includes a conviction of a violation of any ordinance of
39       any city or a law of another state which is in substantial conformity with
40       this section.
41           Sec. 2. K.S.A. 1997 Supp. 8-1008 is hereby amended to read as fol-
42       lows: 8-1008. (a) Community-based alcohol and drug safety action pro-
43       grams certified in accordance with subsection (b) shall provide:

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  1           (1) Presentence alcohol and drug evaluations of any person who is
  2       convicted of a violation of K.S.A. 8-1567 and amendments thereto, or the
  3       ordinance of a city in this state which prohibits the acts prohibited by that
  4       statute;
  5           (2) supervision and monitoring of all persons who are convicted of a
  6       violation of K.S.A. 8-1567 and amendments thereto, or the ordinance of
  7       a city in this state which prohibits the acts prohibited by that statute, and
  8       whose sentences or terms of probation require completion of an alcohol
  9       and drug safety action program, as provided in this section, or an alcohol
10       and drug abuse treatment program, as provided in this section; or an
11       ignition interlock program as provided in this section;
12           (3) alcohol and drug evaluations of persons whom the prosecutor con-
13       siders for eligibility or finds eligible to enter a diversion agreement in lieu
14       of further criminal proceedings on a complaint alleging a violation of
15       K.S.A. 8-1567 and amendments thereto, or the ordinance of a city in this
16       state which prohibits the acts prohibited by that statute;
17           (4) supervision and monitoring of persons required, under a diversion
18       agreement in lieu of further criminal proceedings on a complaint alleging
19       a violation of K.S.A. 8-1567 and amendments thereto, or the ordinance
20       of a city in this state which prohibits the acts prohibited by that statute,
21       to complete an alcohol and drug safety action program, as provided in
22       this section, or an alcohol and drug abuse treatment program, as provided
23       in this section; or an ignition interlock program as provided in this section;
24       or
25           (5) any combination of (1), (2), (3) and (4).
26           (b) The presentence alcohol and drug evaluation shall be conducted
27       by a community-based alcohol and drug safety action program certified
28       in accordance with the provisions of this subsection to provide evaluation
29       and supervision services as described in subsections (c) and (d). A com-
30       munity-based alcohol and drug safety action program shall be certified
31       either by the administrative judge of the judicial district to be served by
32       the program or by the secretary of social and rehabilitation services for
33       judicial districts in which the administrative judge declines to certify a
34       program. In addition to any qualifications established by the secretary,
35       the administrative judge may establish qualifications for the certification
36       of programs, which qualifications may include requirements for training,
37       education and certification of personnel; supervision and monitoring of
38       clients; fee reimbursement procedures; handling of conflicts of interest;
39       delivery of services to clients unable to pay; and other matters relating to
40       quality and delivery of services by the program. In establishing the qual-
41       ifications for programs, the administrative judge or the secretary shall give
42       preference to those programs which have had practical experience prior
43       to July 1, 1982, in diagnosis and referral in alcohol and drug abuse. Cer-

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  1       tification of a program by the administrative judge shall be done with
  2       consultation and approval of a majority of the judges of the district court
  3       of the district and municipal judges of cities lying in whole or in part
  4       within the district. If within 60 days after the effective date of this act the
  5       administrative judge declines to certify any program for the judicial dis-
  6       trict, the judge shall notify the secretary of social and rehabilitation serv-
  7       ices, and the secretary of social and rehabilitation services shall certify a
  8       community-based alcohol and drug safety action program for that judicial
  9       district. The certification shall be for a four-year period. Recertification
10       of a program or certification of a different program shall be by the ad-
11       ministrative judge, with consultation and approval of a majority of the
12       judges of the district court of the district and municipal judges of cities
13       lying in whole or in part within the district. If upon expiration of certifi-
14       cation of a program there will be no certified program for the district and
15       the administrative judge declines to recertify or certify any program in
16       the district, the judge shall notify the secretary of social and rehabilitation
17       services, at least six months prior to the expiration of certification, that
18       the judge declines to recertify or certify a program under this subsection.
19       Upon receipt of the notice and prior to the expiration of certification, the
20       secretary shall recertify or certify a community-based alcohol and drug
21       safety action program for the judicial district for the next four-year period.
22       To be eligible for certification under this subsection, the administrative
23       judge or the secretary of social and rehabilitation services shall determine
24       that a community-based alcohol and drug safety action program meets
25       the qualifications established by the judge or secretary and is capable of
26       providing, within the judicial district: (1) The evaluations, supervision and
27       monitoring required under subsection (a); (2) the alcohol and drug eval-
28       uation report required under subsection (c) or (d); (3) the follow-up du-
29       ties specified under subsection (c) or (d) for persons who prepare the
30       alcohol and drug evaluation report; and (4) any other functions and duties
31       specified by law. Community-based alcohol and drug safety action pro-
32       grams performing services in any judicial district under this section prior
33       to the effective date of this act may continue to perform those services
34       until a community-based alcohol and drug safety action program is cer-
35       tified for that judicial district.
36           (c) A presentence alcohol and drug evaluation shall be conducted on
37       any person who is convicted of a violation of K.S.A. 8-1567 and amend-
38       ments thereto, or the ordinance of a city in this state which prohibits the
39       acts prohibited by that statute. The presentence alcohol and drug evalu-
40       ation report shall be made available to and shall be considered by the
41       court prior to sentencing. The presentence alcohol and drug evaluation
42       report shall contain a history of the defendant's prior traffic record, char-
43       acteristics and alcohol or drug problems, or both, and a recommendation

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  1       concerning the amenability of the defendant to education and rehabili-
  2       tation. The presentence alcohol and drug evaluation report shall include
  3       a recommendation concerning the alcohol and drug driving safety edu-
  4       cation and treatment for the defendant and may include a recommen-
  5       dation regarding issuance of an ignition interlock restricted license by the
  6       court if requested by the court. The presentence alcohol and drug eval-
  7       uation report shall be prepared by a program which has demonstrated
  8       practical experience in the diagnosis of alcohol and drug abuse. The duties
  9       of persons who prepare the presentence alcohol and drug evaluation re-
10       port may also include appearing at sentencing and probation hearings in
11       accordance with the orders of the court, monitoring defendants in the
12       treatment programs, notifying the probation department and the court of
13       any defendant failing to meet the conditions of probation or referrals to
14       treatment, appearing at revocation hearings as may be required and pro-
15       viding assistance and data reporting and program evaluation. The cost of
16       any alcohol and drug education, rehabilitation and treatment programs
17       for any person shall be paid by such person, and such costs shall include,
18       but not be limited to, the assessments required by subsection (e). If fi-
19       nancial obligations are not met or cannot be met, the sentencing court
20       shall be notified for the purpose of collection or review and further action
21       on the defendant's sentence.
22           (d) An alcohol and drug evaluation shall be conducted on any person
23       whom the prosecutor considers for eligibility or finds eligible to enter a
24       diversion agreement in lieu of further criminal proceedings on a com-
25       plaint alleging a violation of K.S.A. 8-1567 and amendments thereto, or
26       the ordinance of a city in this state which prohibits the acts prohibited by
27       that statute. The alcohol and drug evaluation report shall be made avail-
28       able to the prosecuting attorney and shall be considered by the prose-
29       cuting attorney. The alcohol and drug evaluation report shall contain a
30       history of the person's prior traffic record, characteristics and alcohol or
31       drug problems, or both, and a recommendation concerning the amena-
32       bility of the person to education and rehabilitation. The alcohol and drug
33       evaluation report shall include a recommendation concerning the alcohol
34       and drug driving safety education and treatment for the person and may
35       include a recommendation regarding issuance of an ignition interlock re-
36       stricted license by the court if requested by the prosecuting attorney. The
37       alcohol and drug evaluation report shall be prepared by a program which
38       has demonstrated practical experience in the diagnosis of alcohol and
39       drug abuse. The duties of persons who prepare the alcohol and drug
40       evaluation report may also include monitoring persons in the treatment
41       programs, notifying the prosecutor and the court of any person failing to
42       meet the conditions of diversion or referrals to treatment, and providing
43       assistance and data reporting and program evaluation. The cost of any

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  1       alcohol and drug education, rehabilitation and treatment programs for
  2       any person shall be paid by such person, and such costs shall include, but
  3       not be limited to, the assessments required by subsection (e).
  4           (e) In addition to any fines, fees, penalties or costs levied against a
  5       person who is convicted of a violation of K.S.A. 8-1567 and amendments
  6       thereto, or the ordinance of a city in this state which prohibits the acts
  7       prohibited by that statute, or who enters a diversion agreement in lieu of
  8       further criminal proceedings on a complaint alleging a violation of that
  9       statute or such an ordinance, $125 shall be assessed against the person
10       by the sentencing court or under the diversion agreement. The $125
11       assessment may be waived by the court or, in the case of diversion of
12       criminal proceedings, by the prosecuting attorney, if the court or prose-
13       cuting attorney finds that the defendant is an indigent person. Except as
14       otherwise provided in this subsection, the clerk of the court shall deposit
15       all assessments received under this section in the alcohol and drug safety
16       action fund of the court, which fund shall be subject to the administration
17       of the judge having administrative authority over that court. If the sec-
18       retary of social and rehabilitation services certifies the community-based
19       alcohol and drug safety action program for the judicial district in which
20       the court is located, the clerk of the court shall remit, during the four-
21       year period for which the program is certified, 15% of all assessments
22       received under this section to the secretary of social and rehabilitation
23       services. Moneys credited to the alcohol and drug safety action fund shall
24       be expended by the court, pursuant to vouchers signed by the judge
25       having administrative authority over that court, only for costs of the serv-
26       ices specified by subsection (a) or otherwise required or authorized by
27       law and provided by community-based alcohol and drug safety action
28       programs, except that not more than 10% of the money credited to the
29       fund may be expended to cover the expenses of the court involved in
30       administering the provisions of this section. In the provision of these
31       services the court shall contract as may be necessary to carry out the
32       provisions of this section. The district or municipal judge having admin-
33       istrative authority over that court shall compile a report and send such
34       report to the office of the state judicial administrator on or before January
35       20 of each year, beginning January 20, 1991. Such report shall include,
36       but not be limited to:
37           (1) The balance of the alcohol and drug safety action fund of the court
38       on December 31 of each year;
39           (2) the assessments deposited into the fund during the 12-month pe-
40       riod ending the preceding December 31; and
41           (3) the dollar amounts expended from the fund during the 12-month
42       period ending the preceding December 31.
43           The office of the state judicial administrator shall compile such reports

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  1       into a statewide report and submit such statewide report to the legislature
  2       on or before March 1 of each year.
  3           (f) In addition to any fines, fees, penalties or costs levied against the
  4       person who is convicted of a violation of K.S.A. 8-1567 and amendments
  5       thereto, or the ordinance of a city in this state which prohibits the acts
  6       prohibited by that statute, or who enters a diversion agreement in lieu of
  7       further criminal proceedings on a complaint alleging violation of that
  8       statute or such ordinance and who is subsequently granted an ignition
  9       interlock restricted license by the court issued in accordance with K.S.A.
10       8-1567 and amendments thereto, or the county or district attorney in
11       accordance with K.S.A. 22-2909 and amendments thereto, or the city at-
12       torney in accordance with K.S.A. 12-4416 and amendments thereto, $5
13       per month may be assessed against the person by the sentencing court or
14       under the diversion agreement for each month the approved ignition in-
15       terlock device is installed and paid by the person directly to either the
16       probation department or the community-based alcohol and drug safety
17       action program designated by the court or prosecuting attorney to mon-
18       itor the person's compliance with the ignition interlock program.
19             (f) (g) The secretary of social and rehabilitation services shall remit
20       all moneys received by the secretary under this section to the state trea-
21       surer at least monthly. Upon receipt of the remittance, the state treasurer
22       shall deposit the entire amount in the state treasury and credit it to the
23       certification of community-based alcohol and drug safety action programs
24       fee fund, which is hereby created. All expenditures from such fund shall
25       be made in accordance with appropriation acts upon warrants issued pur-
26       suant to vouchers approved by the secretary of social and rehabilitation
27       services or a person designated by the secretary.
28           Sec. 3. K.S.A. 1997 Supp. 8-1014 is hereby amended to read as fol-
29       lows: 8-1014. (a) Except as provided by subsection (d) and K.S.A. 8-2,142,
30       and amendments thereto, if a person refuses a test, the division, pursuant
31       to K.S.A. 8-1002, and amendments thereto, shall suspend the person's
32       driving privileges for   one year 18 months and if ordered by the convicting
33       court pursuant to K.S.A. 8-1567 and amendments thereto, or by the dis-
34       trict or county attorney pursuant to K.S.A. 22-2909 and amendments
35       thereto, or the city attorney pursuant to K.S.A. 12-4416 and amendments
36       thereto, restrict the person's driving privileges in accordance with the
37       provisions of K.S.A. 8-1015 and amendments thereto.
38           (b) Except as provided by subsection (d) and K.S.A. 8-2,142, and
39       amendments thereto, if a person fails a test or has an alcohol or drug-
40       related conviction in this state, the division shall:
41           (1) If the results of the test were less than twice the legal limit as
42       defined in K.S.A. 8-1567 and amendments thereto, on the person's first
43       occurrence, suspend the person's driving privileges for 30 days, then re-

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  1       strict the person's driving privileges as provided by K.S.A. 8-1015, and
  2       amendments thereto, for an additional 330 days;   and
  3           (2)  on the person's second or a subsequent occurrence, suspend the
  4       person's driving privileges for one year.
  5           (2) if the results of the test were twice the legal limit or higher, as
  6       defined in K.S.A. 8-1567 and amendments thereto, on the person's first
  7       occurrence, suspend the person's driving privilege for one year and if
  8       ordered by the convicting court under K.S.A. 8-1567 and amendments
  9       thereto, or by the district or county attorney under K.S.A. 22-2909 and
10       amendments thereto, or the city attorney under K.S.A. 12-4416 and
11       amendments thereto, restrict the person's driving privileges in accordance
12       with K.S.A. 8-1015 and amendments thereto;
13           (3) on the person's second occurrence, suspend the person's driving
14       privilege for three years and restrict the person's driving privileges if
15       ordered by the convicting court under K.S.A. 8-1567 and amendments
16       thereto, and in accordance with K.S.A. 8-1015 and amendments thereto;
17       and
18           (4) on the person's third or subsequent occurrence, suspend the per-
19       son's driving privilege for five years and restrict the person's driving priv-
20       ileges if ordered by the convicting court under K.S.A. 8-1567 and amend-
21       ments thereto and in accordance with K.S.A. 8-1015 and amendments
22       thereto.
23           (c) Whenever the division is notified by an alcohol and drug safety
24       action program that a person has failed to comply with or complete any
25       alcohol and drug safety action education or treatment program, ignition
26       interlock program ordered by a court for a conviction of a violation of
27       K.S.A. 8-1567, and amendments thereto, the division shall suspend the
28       person's driving privileges until the division receives notice of the person's
29       compliance with or completion of such   'ogram programs.
30           (d) Except as provided in K.S.A. 8-2,142, and amendments thereto,
31       if a person's driving privileges are subject to suspension pursuant to this
32       section for a test refusal, test failure or alcohol or drug-related conviction
33       arising from the same arrest, the period of such suspension shall not
34       exceed the longest applicable period authorized by subsection (a) or (b),
35       and such suspension periods shall not be added together or otherwise
36       imposed consecutively. In addition, in determining the period of such
37       suspension as authorized by subsection (a) or (b), such person shall re-
38       ceive credit for any period of time for which such person's driving privi-
39       leges were suspended while awaiting any hearing or final order authorized
40       by this act.
41           If a person's driving privileges are subject to restriction pursuant to
42       this section for a test failure or alcohol or drug-related conviction arising
43       from the same arrest, the restriction periods shall not be added together

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  1       or otherwise imposed consecutively. In addition, in determining the pe-
  2       riod of restriction, the person shall receive credit for any period of sus-
  3       pension imposed for a test refusal arising from the same arrest.
  4           (e) If the division has taken action under subsection (a) for a test
  5       refusal or under subsection (b) for a test failure and such action is stayed
  6       pursuant to K.S.A. 8-259, and amendments thereto, or if temporary driv-
  7       ing privileges are issued pursuant to subsection (k) of K.S.A. 8-1002, and
  8       amendments thereto, the stay or temporary driving privileges shall not
  9       prevent the division from taking the action required by subsection (b) for
10       an alcohol or drug-related conviction.
11           (f) Upon restricting a person's driving privileges pursuant to   (tri-stars)is sec-
12       tion subsection (b)(1), the division shall issue without charge a driver's
13       license and for subsections (b)(2) through (4), the division shall issue with
14       a charge of $25 a driver's license which shall indicate on the face of the
15       license that restrictions have been imposed on the person's driving priv-
16       ileges and that a copy of the order imposing the restrictions is required
17       to be carried by the person for whom the license was issued any time the
18       person is operating a motor vehicle on the highways of this state.
19           (g) Any person whose license is restricted pursuant to subsections
20       (b)(1) through (4) may operate an employer's vehicle without an ignition
21       interlock device installed during normal business activities, provided that
22       the person does not partly or entirely own or control the employer's ve-
23       hicle or business.
24           Sec. 4. K.S.A. 1997 Supp. 8-1015 is hereby amended to read as fol-
25       lows: 8-1015. (a) When subsection (b)(1) of K.S.A. 8-1014, and amend-
26       ments thereto, requires or authorizes the division to place restrictions on
27       a person's driving privileges, the division shall restrict the person's driving
28       privileges to driving only under the circumstances provided by subsec-
29       tions (a)(1), (2), (3) and (4) of K.S.A. 8-292 and amendments thereto.
30           (b) In lieu of the restrictions set out in subsection (a), the division,
31       upon request of the person whose driving privileges are to be restricted,
32       may restrict the person's driving privileges to driving only a motor vehicle
33       equipped with an ignition interlock device, approved by the division and
34       obtained, installed and maintained at the person's expense.
35           (c) When subsection (a) of K.S.A. 8-1014, and amendments thereto,
36       requires or authorizes the division to place restrictions on a person's driv-
37       ing privileges, the division shall restrict the person's driving privileges to
38       driving only a motor vehicle equipped with an ignition interlock device,
39       approved by the division and maintained at the person's expense and only
40       under circumstances provided by K.S.A. 8-292, and amendments thereto.
41       The division shall not issue the restricted license under this subsection
42       until at least 90 days have lapsed from the initial date of suspension for
43       the underlying occurrence and after the person has provided proof of

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  1       installation of an approved ignition interlock device.
  2           (d) When subsection (b)(2) of K.S.A. 8-1014, and amendments
  3       thereto, requires or authorizes the division to place restrictions on a per-
  4       son's driving privileges, the division shall restrict the person's driving
  5       privileges to driving only a motor vehicle equipped with an ignition in-
  6       terlock device, approved by the division and maintained at the person's
  7       expense and may require driving only under circumstances provided by
  8       K.S.A. 8-292, and amendments thereto. The division shall not issue the
  9       restricted license under this subsection until at least 30 days have lapsed
10       from the initial date of suspension for the underlying occurrence and after
11       the person has provided proof of installation of an approved ignition in-
12       terlock device.
13           (e) When subsection (b)(3) of K.S.A. 8-1014, and amendments
14       thereto, requires or authorizes the division to place restrictions on a per-
15       son's driving privileges, the division shall restrict the person's driving
16       privileges to driving only a motor vehicle equipped with an ignition in-
17       terlock device, approved by the division and maintained at the person's
18       expense and only under circumstances provided by K.S.A. 8-292, and
19       amendments thereto. The division shall not issue the restricted license
20       under this subsection until at least one year has lapsed from the initial
21       date of suspension for the underlying occurrence and after the person has
22       provided proof of installation of an approved ignition interlock device.
23           (f) When subsection (b)(3) of K.S.A. 8-1014, and amendments thereto,
24       requires or authorizes the division to place restrictions on a person's driv-
25       ing privileges, the division shall restrict the person's driving privileges to
26       driving only a motor vehicle equipped with an ignition interlock device,
27       approved by the division and maintained at the person's expense and only
28       under circumstances provided by K.S.A. 8-292, and amendments thereto.
29       The division shall not issue the restricted license under this subsection
30       until at least one year has lapsed from the initial date of suspension for
31       the underlying occurrence and after the person has provided proof of
32       installation of an approved ignition interlock device.
33             (c) Upon a person's second or subsequent conviction for an alcohol
34       related offense, if the person had an alcohol concentration of .15 or more
35       in the person's blood or breath, the convicting court shall restrict the
36       person's driving privileges to driving only a motor vehicle equipped with
37       an ignition interlock device, approved by the division and obtained, in-
38       stalled and maintained at the person's expense.
39           (g) In addition to any other requirements of this section, the director
40       of vehicles shall require a person to acquire insurance and shall require
41       such person's insurer to maintain on file with the division evidence of
42       such insurance for a period of three years from the date such person's
43       driving privileges are otherwise eligible to be reinstated when such per-

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  1       son's license has been suspended or restricted pursuant to K.S.A. 8-1014
  2       or K.S.A. 22-2909 and amendments thereto.
  3             (d) (h) Upon expiration of the period of time for which restrictions
  4       are imposed pursuant to this section, the licensee may apply to the divi-
  5       sion for the return of any license previously surrendered by the licensee.
  6       If the license has expired, the person may apply to the division for a new
  7       license, which shall be issued by the division upon payment of the proper
  8       fee and satisfaction of the other conditions established by law, unless the
  9       person's driving privileges have been suspended or revoked prior to ex-
10       piration.
11           Sec. 5. K.S.A. 1997 Supp. 8-1016 is hereby amended to read as fol-
12       lows: 8-1016. (a) The secretary of revenue shall adopt rules and regula-
13       tions for:
14           (1) The approval by the division of models and classes of ignition
15       interlock devices suitable for use by persons whose driving privileges have
16       been restricted to driving a vehicle equipped with such a device;   and
17           (2) the calibration and maintenance of such devices, which shall be
18       the responsibility of the manufacturer  . ; and
19           (3) ensuring that each manufacturer approved provides a reasonable
20       statewide service network where such devices may be obtained, repaired,
21       replaced or serviced.
22           In adopting rules and regulations for approval of ignition interlock de-
23       vices under this section, the secretary of revenue shall   insure that those
24       devices approved do not impede the safe operation of a motor vehicle
25       and have the fewest opportunities to be bypassed so as to render them
26       ineffective require that the manufacturer's or the manufacturer's repre-
27       sentatives calibrate and maintain the devices at intervals not to exceed 60
28       days. Calibration and maintenance shall include, but not be limited to,
29       physical inspection of the device, the vehicle and wiring of the device to
30       the vehicle for signs of tampering, calibration of the device and down-
31       loading of all data contained within the device's memory and reporting
32       of any violation or noncompliance to the court.
33           (b) If the division approves an ignition interlock device in accordance
34       with rules and regulations adopted under this section, the division shall
35       give written notice of the approval to the manufacturer of the device.
36       Such notice shall be admissible in any civil or criminal proceeding in this
37       state.
38           (c) The manufacturer of an ignition interlock device shall reimburse
39       the division for any cost incurred in approving or disapproving such device
40       under this section.
41           (d) Neither the state nor any agency, officer or employee thereof shall
42       be liable in any civil or criminal proceeding arising out of the use of an
43       ignition interlock device approved under this section.

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  1           Sec. 6. K.S.A. 1997 Supp. 8-1567 is hereby amended to read as fol-
  2       lows: 8-1567. (a) No person shall operate or attempt to operate any vehicle
  3       within this state while:
  4           (1) The alcohol concentration in the person's blood or breath as
  5       shown by any competent evidence, including other competent evidence,
  6       as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amend-
  7       ments thereto, is .08 or more;
  8           (2) the alcohol concentration in the person's blood or breath, as meas-
  9       ured within two hours of the time of operating or attempting to operate
10       a vehicle, is .08 or more;
11           (3) under the influence of alcohol to a degree that renders the person
12       incapable of safely driving a vehicle;
13           (4) under the influence of any drug or combination of drugs to a
14       degree that renders the person incapable of safely driving a vehicle; or
15           (5) under the influence of a combination of alcohol and any drug or
16       drugs to a degree that renders the person incapable of safely driving a
17       vehicle.
18           (b) No person shall operate or attempt to operate any vehicle within
19       this state if the person is a habitual user of any narcotic, hypnotic, som-
20       nifacient or stimulating drug.
21           (c) If a person is charged with a violation of this section involving
22       drugs, the fact that the person is or has been entitled to use the drug
23       under the laws of this state shall not constitute a defense against the
24       charge.
25           (d) Upon a first conviction of a violation of this section, a person shall
26       be guilty of a class B, nonperson misdemeanor and sentenced to not less
27       than 48 consecutive hours nor more than six months' imprisonment, or
28       in the court's discretion 100 hours of public service, and fined not less
29       than $200 nor more than $500. The person convicted must serve at least
30       48 consecutive hours' imprisonment or 100 hours of public service either
31       before or as a condition of any grant of probation or suspension, reduction
32       of sentence or parole. In addition, the court shall enter an order which
33       requires that the person enroll in and successfully complete an alcohol
34       and drug safety action education program or treatment program as pro-
35       vided in K.S.A. 8-1008, and amendments thereto, or both the education
36       and treatment programs and if the person convicted refused the test or if
37       the test results indicated a blood alcohol count level at or above twice the
38       legal limit, the court may order the division to issue a restricted license
39       during the term of suspension or probation but the order shall stipulate
40       that the person shall only operate a motor vehicle with an ignition inter-
41       lock device installed and approved in accordance with K.S.A. 8-1016 and
42       amendments thereto.
43           (e) On a second conviction of a violation of this section, a person shall

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  1       be guilty of a class A, nonperson misdemeanor and sentenced to not less
  2       than 90 days nor more than one year's imprisonment and fined not less
  3       than $500 nor more than $1,000. The five days' imprisonment mandated
  4       by this subsection may be served in a work release program only after
  5       such person has served 48 consecutive hours' imprisonment, provided
  6       such work release program requires such person to return to confinement
  7       at the end of each day in the work release program. Except as provided
  8       in subsection (g), the person convicted must serve at least five consecutive
  9       days' imprisonment before the person is granted probation, suspension
10       or reduction of sentence or parole or is otherwise released. As a condition
11       of any grant of probation, suspension of sentence or parole or of any other
12       release, the person shall be required to enter into and complete a treat-
13       ment program for alcohol and drug abuse as provided in K.S.A. 8-1008,
14       and amendments thereto and the court may order the division to issue a
15       restricted license during the term of suspension or probation but the order
16       shall require that the person only operate a motor vehicle with an ignition
17       interlock device installed and approved in accordance with K.S.A. 8-1016
18       and amendments thereto.
19           (f) On the third or a subsequent conviction of a violation of this sec-
20       tion, a person shall be guilty of a nonperson felony and sentenced to not
21       less than 90 days nor more than one year's imprisonment and fined not
22       less than $1,000 nor more than $2,500. Except as provided in subsection
23       (g), the person convicted shall not be eligible for release on probation,
24       suspension or reduction of sentence or parole until the person has served
25       at least 90 days' imprisonment. The court may also require as a condition
26       of parole that such person enter into and complete a treatment program
27       for alcohol and drug abuse as provided by K.S.A. 8-1008, and amend-
28       ments thereto and the court may order the division to issue a restricted
29       license during the term of suspension or parole but the order shall require
30       that the person only operate a motor vehicle with an ignition interlock
31       device installed and approved in accordance with K.S.A. 8-1016 and
32       amendments thereto. The 90 days' imprisonment mandated by this sub-
33       section may be served in a work release program only after such person
34       has served 48 consecutive hours' imprisonment, provided such work re-
35       lease program requires such person to return to confinement at the end
36       of each day in the work release program.
37           (g) On a second or subsequent conviction of a violation of this section,
38       the court may place the person convicted under a house arrest program,
39       pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the re-
40       mainder of the minimum sentence only after such person has served 48
41       consecutive hours' imprisonment.
42           (h) The court may establish the terms and time for payment of any
43       fines, fees, assessments and costs imposed pursuant to this section. Any

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  1       assessment and costs shall be required to be paid not later than 90 days
  2       after imposed, and any remainder of the fine shall be paid prior to the
  3       final release of the defendant by the court.
  4           (i) In lieu of payment of a fine imposed pursuant to this section, the
  5       court may order that the person perform community service specified by
  6       the court. The person shall receive a credit on the fine imposed in an
  7       amount equal to $5 for each full hour spent by the person in the specified
  8       community service. The community service ordered by the court shall be
  9       required to be performed not later than one year after the fine is imposed
10       or by an earlier date specified by the court. If by the required date the
11       person performs an insufficient amount of community service to reduce
12       to zero the portion of the fine required to be paid by the person, the
13       remaining balance of the fine shall become due on that date.
14           (j) The court shall report every conviction of a violation of this section
15       and every diversion agreement entered into in lieu of further criminal
16       proceedings or a complaint alleging a violation of this section to the di-
17       vision. In addition, the court shall report every order for a restricted
18       license in this section to the division. Prior to sentencing under the pro-
19       visions of this section, the court shall request and shall receive from the
20       division a record of all prior convictions obtained against such person for
21       any violations of any of the motor vehicle laws of this state.
22           (k) For the purpose of determining whether a conviction is a first,
23       second, third or subsequent conviction in sentencing under this section:
24           (1) ``Conviction'' includes being convicted of a violation of this section
25       or entering into a diversion agreement in lieu of further criminal pro-
26       ceedings on a complaint alleging a violation of this section;
27           (2) ``conviction'' includes being convicted of a violation of a law of
28       another state or an ordinance of any city, or resolution of any county,
29       which prohibits the acts that this section prohibits or entering into a di-
30       version agreement in lieu of further criminal proceedings in a case alleg-
31       ing a violation of such law, ordinance or resolution;
32           (3) only convictions occurring in the immediately preceding five
33       years, including prior to the effective date of this act, shall be taken into
34       account, but the court may consider other prior convictions in determin-
35       ing the sentence to be imposed within the limits provided for a first,
36       second, third or subsequent offender, whichever is applicable; and
37           (4) it is irrelevant whether an offense occurred before or after con-
38       viction for a previous offense.
39           (l) Upon conviction of a person of a violation of this section or a
40       violation of a city ordinance or county resolution prohibiting the acts
41       prohibited by this section, the division, upon receiving a report of con-
42       viction, shall suspend, restrict or suspend and restrict the person's driving
43       privileges as provided by K.S.A. 8-1014, and amendments thereto.

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  1           (m) Nothing contained in this section shall be construed as prevent-
  2       ing any city from enacting ordinances, or any county from adopting res-
  3       olutions, declaring acts prohibited or made unlawful by this act as unlaw-
  4       ful or prohibited in such city or county and prescribing penalties for
  5       violation thereof, but the minimum penalty prescribed by any such or-
  6       dinance or resolution shall not be less than the minimum penalty pre-
  7       scribed by this act for the same violation, and the maximum penalty in
  8       any such ordinance or resolution shall not exceed the maximum penalty
  9       prescribed for the same violation. In addition, any such ordinance or
10       resolution shall authorize the court to order that the convicted person
11       pay restitution to any victim who suffered loss due to the violation for
12       which the person was convicted.
13           (n) No plea bargaining agreement shall be entered into nor shall any
14       judge approve a plea bargaining agreement entered into for the purpose
15       of permitting a person charged with a violation of this section, or a vio-
16       lation of any ordinance of a city or resolution of any county in this state
17       which prohibits the acts prohibited by this section, to avoid the mandatory
18       penalties established by this section or by the ordinance. For the purpose
19       of this subsection, entering into a diversion agreement pursuant to K.S.A.
20       12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not
21       constitute plea bargaining.
22           (o) The alternatives set out in subsections (a)(1) (2) and (3) may be
23       pleaded in the alternative, and the state, city or county, but shall not be
24       required to, may elect one or two of the three prior to submission of the
25       case to the fact finder.
26           (p) Upon a fourth or subsequent conviction, the judge of any court
27       in which any person is convicted of violating this section, may revoke the
28       person's license plate or temporary registration certificate of the motor
29       vehicle driven during the violation of this section for a period of one year.
30       Upon revoking any license plate or temporary registration certificate pur-
31       suant to this subsection, the court shall require that such license plate or
32       temporary registration certificate be surrendered to the court.
33           (q) For the purpose of this section: (1) ``Alcohol concentration''
34       means the number of grams of alcohol per 100 milliliters of blood or per
35       210 liters of breath.
36           (2) ``Imprisonment'' shall include any restrained environment in
37       which the court and law enforcement agency intend to retain custody and
38       control of a defendant and such environment has been approved by the
39       board of county commissioners or the governing body of a city.
40           Sec. 7. K.S.A. 12-4416 is hereby amended to read as follows: 12-
41       4416. (a) A diversion agreement shall provide that if the defendant fulfills
42       the obligations of the program described therein, as determined by the
43       city attorney, the city attorney shall act to have the criminal charges

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  1       against the defendant dismissed with prejudice. The diversion agreement
  2       shall include specifically the waiver of all rights under the law or the
  3       constitution of Kansas or of the United States to counsel, a speedy ar-
  4       raignment, a speedy trial, and the right to trial by jury. The diversion
  5       agreement may include, but is not limited to, provisions concerning pay-
  6       ment of restitution, including court costs and diversion costs, residence
  7       in a specified facility, maintenance of gainful employment, and partici-
  8       pation in programs offering medical, educational, vocational, social and
  9       psychological services, corrective and preventive guidance and other re-
10       habilitative services. The diversion agreement shall state:
11           (1) The defendant's full name;
12           (2) the defendant's full name at the time the complaint was filed, if
13       different from the defendant's current name;
14           (3) the defendant's sex, race and date of birth;
15           (4) the crime with which the defendant is charged;
16           (5) the date the complaint was filed; and
17           (6) the municipal court with which the agreement is filed.
18           (b) If a diversion agreement is entered into in lieu of further criminal
19       proceedings on a complaint alleging an alcohol related offense, the di-
20       version agreement shall include a stipulation, agreed to by the defendant
21       and the city attorney, of the facts upon which the charge is based and a
22       provision that if the defendant fails to fulfill the terms of the specific
23       diversion agreement and the criminal proceedings on the complaint are
24       resumed, the proceedings, including any proceedings on appeal, shall be
25       conducted on the record of the stipulation of facts relating to the com-
26       plaint. In addition, the agreement shall include a requirement that the
27       defendant:
28           (1) Pay a fine specified by the agreement in an amount equal to an
29       amount authorized by K.S.A. 8-1567, and amendments thereto, for a first
30       offense or, in lieu of payment of the fine, perform community service
31       specified by the agreement, consonant with K.S.A. 8-1567, and amend-
32       ments thereto;   and
33           (2) enroll in and successfully complete an alcohol and drug safety
34       action program or a treatment program, or both, as provided in K.S.A. 8-
35       1008, and amendments thereto, and specified by the agreement, and pay
36       the assessment required by K.S.A. 8-1008, and amendments thereto  .; and
37           (3) only operate a motor vehicle with an approved ignition interlock
38       device installed for the term of the diversion agreement or underlying
39       driver's license suspension period imposed by the division under K.S.A.
40       8-1014 and amendments thereto, whichever is longer, if the city attorney
41       orders the division to issue a restricted license, which the city attorney is
42       authorized to do under the terms of this subsection and if the person's
43       license and if the person's arrest for a violation of K.S.A. 8-1567 and

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  1       amendments thereto for which the diversion agreement is granted in-
  2       volved a refusal of the test or failure of the test at a level of twice the legal
  3       limit or higher as defined in K.S.A. 8-1567 and amendments thereto.
  4           (c) If the person entering into a diversion agreement is a nonresident,
  5       the city attorney shall transmit a copy of the diversion agreement to the
  6       division. The division shall forward a copy of the diversion agreement to
  7       the motor vehicle administrator of the person's state of residence.
  8           (d) If the city attorney elects to offer diversion in lieu of further crim-
  9       inal proceedings on the complaint and the defendant agrees to all of the
10       terms of the proposed agreement, the diversion agreement shall be filed
11       with the municipal court and the municipal court shall stay further pro-
12       ceedings on the complaint. If the defendant declines to accept diversion,
13       the municipal court shall resume the criminal proceedings on the com-
14       plaint.
15           (e) The city attorney shall forward to the division of vehicles of the
16       state department of revenue a copy of the diversion agreement entered
17       into in lieu of further criminal proceedings on a complaint alleging a
18       violation of K.S.A. 8-1567 and amendments thereto and any order for the
19       division to issue a restricted license in accordance with subsection (b)(3)
20       at the time such agreement is filed with the municipal court. The copy
21       of the agreement shall be made available upon request to any county,
22       district or city attorney or court.
23           Sec. 8. K.S.A. 22-2909 is hereby amended to read as follows: 22-
24       2909. (a) A diversion agreement shall provide that if the defendant fulfills
25       the obligations of the program described therein, as determined by the
26       attorney general or county or district attorney, such attorney shall act to
27       have the criminal charges against the defendant dismissed with prejudice.
28       The diversion agreement shall include specifically the waiver of all rights
29       under the law or the constitution of Kansas or of the United States to a
30       speedy arraignment, preliminary examinations and hearings, and a speedy
31       trial, and in the case of diversion under subsection (c) waiver of the rights
32       to counsel and trial by jury. The diversion agreement may include, but is
33       not limited to, provisions concerning payment of restitution, including
34       court costs and diversion costs, residence in a specified facility, mainte-
35       nance of gainful employment, and participation in programs offering
36       medical, educational, vocational, social and psychological services, cor-
37       rective and preventive guidance and other rehabilitative services. If a
38       county creates a local fund under the property crime restitution and com-
39       pensation act, a county or district attorney may require in all diversion
40       agreements as a condition of diversion the payment of a diversion fee in
41       an amount not to exceed $100. Such fees shall be deposited into the local
42       fund and disbursed pursuant to recommendations of the local board un-
43       der the property crime restitution and victims compensation act.

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  1           (b) The diversion agreement shall state: (1) The defendant's full
  2       name; (2) the defendant's full name at the time the complaint was filed,
  3       if different from the defendant's current name; (3) the defendant's sex,
  4       race and date of birth; (4) the crime with which the defendant is charged;
  5       (5) the date the complaint was filed; and (6) the district court with which
  6       the agreement is filed.
  7           (c) If a diversion agreement is entered into in lieu of further criminal
  8       proceedings on a complaint alleging a violation of K.S.A. 8-1567, and
  9       amendments thereto, the diversion agreement shall include a stipulation,
10       agreed to by the defendant, the defendant's attorney if the defendant is
11       represented by an attorney and the attorney general or county or district
12       attorney, of the facts upon which the charge is based and a provision that
13       if the defendant fails to fulfill the terms of the specific diversion agree-
14       ment and the criminal proceedings on the complaint are resumed, the
15       proceedings, including any proceedings on appeal, shall be conducted on
16       the record of the stipulation of facts relating to the complaint. In addition,
17       the agreement shall include a requirement that the defendant:
18           (1) Pay a fine specified by the agreement in an amount equal to an
19       amount authorized by K.S.A. 8-1567, and amendments thereto, for a first
20       offense or, in lieu of payment of the fine, perform community service
21       specified by the agreement, in accordance with K.S.A. 8-1567, and
22       amendments thereto;   and
23           (2) enroll in and successfully complete an alcohol and drug safety
24       action program or a treatment program, or both, as provided in K.S.A. 8-
25       1008, and amendments thereto, and specified by the agreement, and pay
26       the assessment required by K.S.A. 8-1008, and amendments thereto  .; and
27           (3) only operate a motor vehicle with an approved ignition interlock
28       device installed for the term of the diversion agreement or underlying
29       driver's license suspension period imposed by the division under K.S.A.
30       8-1014 and amendments thereto, whichever is longer, if the county or
31       district attorney orders the division to issue a restricted license, which the
32       county or district attorney is authorized to do under the terms of this
33       subsection and if the person's arrest for a violation of K.S.A. 8-1567 and
34       amendments thereto for which the diversion agreement is granted in-
35       volved a refusal of the test or failure of the test at a level of twice the legal
36       limit or higher as defined in K.S.A. 8-1567 and amendments thereto.
37           (d) If a diversion agreement is entered into in lieu of further criminal
38       proceedings on a complaint alleging a violation other than K.S.A. 8-1567
39       and amendments thereto, the diversion agreement may include a stipu-
40       lation, agreed to by the defendant, the defendant's attorney if the de-
41       fendant is represented by an attorney and the attorney general or county
42       or district attorney, of the facts upon which the charge is based and a
43       provision that if the defendant fails to fulfill the terms of the specific

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  1       diversion agreement and the criminal proceedings on the complaint are
  2       resumed, the proceedings, including any proceedings on appeal, shall be
  3       conducted on the record of the stipulation of facts relating to the com-
  4       plaint.
  5           (e) If the person entering into a diversion agreement is a nonresident,
  6       the attorney general or county or district attorney shall transmit a copy
  7       of the diversion agreement to the division. The division shall forward a
  8       copy of the diversion agreement to the motor vehicle administrator of the
  9       person's state of residence.
10           (f) If the attorney general or county or district attorney elects to offer
11       diversion in lieu of further criminal proceedings on the complaint and the
12       defendant agrees to all of the terms of the proposed agreement, the di-
13       version agreement shall be filed with the district court and the district
14       court shall stay further proceedings on the complaint. If the defendant
15       declines to accept diversion, the district court shall resume the criminal
16       proceedings on the complaint.
17           (g) Except as provided in subsection (h), if a diversion agreement is
18       entered into in lieu of further criminal proceedings alleging commission
19       of a misdemeanor by the defendant, while under 21 years of age, under
20       the uniform controlled substances act (K.S.A. 65-4101 et seq., and amend-
21       ments thereto) or K.S.A. 41-719, 41-727, 41-804, 41-2719, 41-2720, 65-
22       4152, 65-4153, 65-4154 or 65-4155, and amendments thereto, the agree-
23       ment shall require the defendant to submit to and complete an alcohol
24       and drug evaluation by a community-based alcohol and drug safety action
25       program certified pursuant to K.S.A. 8-1008, and amendments thereto,
26       and to pay a fee not to exceed the fee established by that statute for such
27       evaluation. If the attorney general or county or district attorney finds that
28       the defendant is indigent, the fee may be waived.
29           (h) If the defendant is 18 or more years of age but less than 21 years
30       of age and allegedly committed a violation of K.S.A. 41-727, and amend-
31       ments thereto, involving cereal malt beverage, the provisions of subsec-
32       tion (g) are permissive and not mandatory.
33           (i) Except diversion agreements reported under subsection (j), the
34       attorney general or county or district attorney shall forward to the Kansas
35       bureau of investigation a copy of the diversion agreement at the time such
36       agreement is filed with the district court. The copy of the agreement shall
37       be made available upon request to the attorney general or any county,
38       district or city attorney or court.
39           (j) At the time of filing the diversion agreement with the district
40       court, the attorney general or county or district attorney shall forward to
41       the division of vehicles of the state department of revenue a copy of any
42       diversion agreement entered into in lieu of further criminal proceedings
43       on a complaint alleging a violation of K.S.A. 8-1567, and amendments

SB 651

20

  1       thereto and any order for the division to issue a restricted license in
  2       accordance with subsection (c)(3). The copy of the agreement shall be
  3       made available upon request to the attorney general or any county, district
  4       or city attorney or court.
  5           Sec. 9. K.S.A. 12-4416 and 22-2909 and K.S.A. 1997 Supp. 8-262, 8-
  6       1008, 8-1014, 8-1015, 8-1016 and 8-1567 are hereby repealed.
  7           Sec. 10. This act shall take effect and be in force from and after its
  8       publication in the statute book.
  9