[As Amended by House Committee of the Whole]
         
As Amended by House Committee
         
Session of 1999
         
HOUSE BILL No. 2240
         
By Committee on Federal and State Affairs
         
2-3
         
11             AN  ACT enacting the personal and family protection act; providing for
12             licensure to carry certain concealed weapons; prohibiting certain acts
13             and prescribing penalties for violations; amending K.S.A. 1998 Supp.
14             12-4516, 21-4201 and 21-4619[, 21-4619 and 21-4716] and repealing
15             the existing sections.
16      
17       Be it enacted by the Legislature of the State of Kansas:
18             New Section  1. Sections 1 through 17, and amendments thereto,
19       shall be known and may be cited as the personal and family protection
20       act.
21             New Sec.  2. As used in the personal and family protection act:
22             (a) "Bureau" means the Kansas bureau of investigation.
23             (b) "Weapon" means handgun, pistol or revolver.
24             New Sec.  3. (a) On and after January 1, 2000, the bureau shall issue
25       licenses to carry concealed weapons to persons qualified as provided by
26       this act. Such licenses shall be valid throughout the state for a period of
27       four years from the date of issuance.
28             (b) The license shall be in a form, prescribed by the bureau, that is
29       approximately the size of a Kansas driver's license and shall bear the
30       licensee's signature, name, address, date of birth and driver's license num-
31       ber or nondriver's identification card number.
32             (c) The licensee shall carry the license, together with a valid Kansas
33       driver's license or Kansas nondriver's identification card, at all times in
34       which the licensee is in actual possession of a concealed weapon and shall
35       display both the license and proper identification upon demand by a law
36       enforcement officer.
37             Violation of the provisions of this subsection shall constitute a class B
38       nonperson misdemeanor.
39             New Sec.  4. (a) On and after January 1, 2000, the bureau shall issue
40       a license pursuant to this act if the applicant:
41             (1) Is a resident of the county where application for licensure is made
42       and has been a resident of the state for six months or more immediately

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  1       preceding the filing of the application;
  2             (2) is 21 years or more of age;
  3             (3) does not suffer from a physical infirmity which prevents the safe
  4       handling of a weapon;
  5             (4) has never been convicted or placed on diversion, in this or any
  6       other jurisdiction, for an act that constitutes a felony under the laws of
  7       this state or adjudicated, in this or any other jurisdiction, of committing
  8       as a juvenile an act that would be a felony under the laws of this state if
  9       committed by an adult;
10             (5) has not been, during the five years immediately preceding the
11       date the application is submitted: (A) A mentally ill person or involuntary
12       patient, as defined in K.S.A. 1998 Supp. 59-2946, and amendments
13       thereto; (B) an alcoholic, as defined in K.S.A. 65-4003, and amendments
14       thereto; (C) a drug abuser, as defined in K.S.A. 65-5201, and amendments
15       thereto; (D) committed for the abuse of a controlled substance; (E) con-
16       victed or placed on diversion, in this or any other jurisdiction, for an act
17       that constitutes a misdemeanor under the provisions of the uniform con-
18       trolled substances act or adjudicated, in this or any other jurisdiction, of
19       committing as a juvenile an act that would be a misdemeanor under such
20       act if committed by an adult; (F) committed for the abuse of alcohol; (G)
21       convicted or placed on diversion, in this or any other jurisdiction, two or
22       more times for an act that constitutes a violation of K.S.A. 8-1567, and
23       amendments thereto; or (H) convicted or placed on diversion, in this or
24       any other jurisdiction, for an act that constitutes a felony or domestic
25       violence misdemeanor under article 34 or 35 of chapter 21 of the Kansas
26       Statutes Annotated or adjudicated, in this or any other jurisdiction, of
27       committing as a juvenile an act that would be a felony or domestic vio-
28       lence misdemeanor under article 34 or 35 of chapter 21 of the Kansas
29       Statutes Annotated if committed by an adult;
30             (6) desires a legal means to carry a concealed weapon for lawful self-
31       defense;
32             (7) presents evidence satisfactory to the bureau that the applicant has
33       satisfactorily completed a weapons safety and training course approved
34       by the bureau pursuant to subsection (b);
35             (8) has not been adjudged a disabled person under the act for ob-
36       taining a guardian or conservator, or both, or under a similar law of an-
37       other state or the District of Columbia, unless the applicant was ordered
38       restored to capacity three or more years before the date on which the
39       application is submitted;
40             (9) has not been dishonorably discharged from military service;
41             (10) is a citizen of the United States; and
42             (11) is not subject to a restraining order issued under the protection
43       from abuse act.

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  1             (b)  (1) The director of the bureau shall adopt rules and regulations
  2       establishing procedures and standards as authorized by this act for a
  3       weapons safety and training course required by this section. Such stan-
  4       dards shall include: (A) A requirement that trainees receive training in
  5       the safe storage of weapons, actual firing of weapons and instruction in
  6       the laws of this state governing the carrying of a concealed weapon and
  7       the use of deadly force; (B) general guidelines for courses; (C) qualifi-
  8       cations of instructors; and (D) a requirement that the course be a weapons
  9       course: (i) Certified or sponsored by the bureau or the national rifle as-
10       sociation; or (ii) certified or sponsored by a law enforcement agency,
11       college, private or public institution or organization or weapons training
12       school and taught by instructors certified by the bureau or the national
13       rifle association.
14             (2) The cost of the weapons safety and training course required by
15       this section shall be paid by the applicant. The following shall constitute
16       satisfactory evidence of satisfactory completion of an approved weapons
17       safety and training course: (A) A photocopy of a certificate of completion
18       of the course; (B) an affidavit from the instructor, school, club, organi-
19       zation or group that conducted or taught such course attesting to the
20       completion of the course by the applicant; or (C) a copy of any document
21       which shows completion of the course.
22             (c) In addition to the requirements of subsection (a), a person holding
23       a license pursuant to this act, prior to renewal of the license provided
24       herein, shall submit evidence satisfactory to the bureau that the licensee
25       has requalified on by completion of an approved course given by an
26       instructor of an approved weapons safety and training course under sub-
27       section (b)(1).
28             New Sec.  5. (a) The application for a license pursuant to this act shall
29       be completed, under oath, on a form prescribed by the bureau and shall
30       only include:
31             (1) The name, address, place and date of birth, and occupation of the
32       applicant;
33             (2) a statement that the applicant is in compliance with criteria con-
34       tained within section 4, and amendments thereto;
35             (3) a waiver of the confidentiality of such mental health and medical
36       records as necessary to determine the applicant's qualifications under
37       subsection (a)(5) of section 4, and amendments thereto;
38             (4) a statement that the applicant has been furnished a copy of this
39       act and is knowledgeable of its provisions;
40             (5) a conspicuous warning that the application is executed under oath
41       and that a false answer to any question, or the submission of any false
42       document by the applicant, subjects the applicant to criminal prosecution
43       under K.S.A. 21-3805, and amendments thereto; and

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  1             (6) a statement that the applicant desires a concealed weapon license
  2       as a means of lawful self-defense.
  3             (b) The applicant shall submit to the sheriff of the county where the
  4       applicant resides, during any normal business hours:
  5             (1) A completed application described in subsection (a);
  6             (2) a nonrefundable license fee not to exceed $125, if the applicant
  7       has not previously been issued a statewide license or if the applicant's
  8       license has permanently expired;
  9             (3) a photocopy of a certificate or an affidavit or document as de-
10       scribed in subsection (b) of section 4, and amendments thereto; and
11             (4) a full frontal view photograph of the applicant taken within the
12       preceding 30 days.
13             (c)  (1) The sheriff, upon receipt of the items listed in subsection (b)
14       of this section or subsection (a) of section 8, and amendments thereto,
15       shall provide for the full set of fingerprints of the applicant to be taken
16       and forwarded to the bureau for processing for any criminal justice in-
17       formation and shall forward a copy of the application and $100 of the
18       original license fee, or $80 of the renewal license fee, to the bureau. The
19       cost of taking such fingerprints shall be included in the portion of the fee
20       retained by the sheriff.
21             (2) The sheriff of the applicant's county of residence, at the sheriff's
22       discretion, may participate in the process by submitting a voluntary report
23       to the bureau containing any readily discoverable information that the
24       sheriff has reason to believe may be pertinent to the licensing of any
25       applicant. The sheriff may consult with any law enforcement officers in
26       this state to obtain additional information for such report. Any such vol-
27       untary reporting shall be made within 45 days after the date the sheriff
28       receives the application. Any sheriff or law enforcement officer submit-
29       ting a voluntary report shall not incur any civil or criminal liability as the
30       result of the good faith submission of such report.
31             (3) All funds received retained by the sheriff pursuant to the pro-
32       visions of this section shall be deposited in the general fund of the county
33       and shall be budgeted to the use of the sheriff's office.
34             (d) Within 180 days after the date of receipt of the items listed in
35       subsection (b), for applications received before July 1, 2000, and within
36       90 days after the date of receipt of the items listed in subsection (b), for
37       applications received on or after July 1, 2000, the bureau shall:
38             (1) Issue the license; or
39             (2) deny the application based solely on: (A) The report submitted
40       by the sheriff under subsection (c)(2) for good cause shown therein; or
41       (B) the ground that the applicant fails to qualify under the criteria listed
42       in section 4, and amendments thereto. If the bureau denies the applica-
43       tion, the bureau shall notify the applicant in writing, stating the ground

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  1       for denial and informing the applicant of any right to a hearing pursuant
  2       to the Kansas administrative procedure act.
  3             (e) Any law enforcement officer, as defined by K.S.A. 21-3110, and
  4       amendments thereto, shall be exempt from the fees and background in-
  5       vestigation required by this section for a period of one year subsequent
  6       to the date of retirement of such officer as a law enforcement officer.
  7             New Sec.  6. (a) The bureau shall maintain an automated listing of
  8       licenseholders and pertinent information, and such information shall be
  9       available, upon request, at all times to all law enforcement agencies in
10       this state.
11             (b) Within 30 days after the changing of a permanent address, or
12       within 30 days after having a license lost or destroyed, the licensee shall
13       notify the bureau of such change, loss or destruction. The bureau, upon
14       notice and hearing, may order a licensee to pay a fine of not more than
15       $100, or may suspend the licensee's license for not more than 180 days,
16       for failure to notify the bureau pursuant to the provisions of this
17       subsection.
18             (c) In the event that a concealed weapon license is lost or destroyed,
19       the license shall be automatically invalid, and the person to whom the
20       license was issued, upon payment of $15 to the bureau, may obtain a
21       duplicate, or substitute thereof, upon furnishing a notarized statement to
22       the bureau that such license has been lost or destroyed.
23             New Sec.  7. The bureau shall suspend or revoke at any time, after
24       notice and an opportunity for hearing in accordance with the Kansas
25       administrative procedure act, the license of any person who would be
26       ineligible under section 4, and amendments thereto, if submitting an ap-
27       plication for a license at such time or who fails to submit evidence of
28       completion of a weapons safety and training course as required by sub-
29       section (c) of section 4, and amendments thereto.
30             New Sec.  8. (a) Not less than 90 days prior to the expiration date of
31       the license, the bureau shall mail to the licensee a written notice of the
32       expiration and a renewal form prescribed by the bureau. The licensee
33       shall renew the license on or before the expiration date by filing with the
34       sheriff of the applicant's county of residence the renewal form, a notarized
35       affidavit stating that the licensee remains qualified pursuant to the criteria
36       specified in section 4, and amendments thereto, a completed fingerprint
37       card, a full frontal view photograph of the applicant taken within the
38       preceding 30 days and a nonrefundable license renewal fee not to exceed
39       $100. The license shall be renewed upon receipt of the completed re-
40       newal application, fingerprint card and appropriate payment of fees. A
41       licensee who fails to file a renewal application on or before the expiration
42       date of the license must pay an additional late fee of $15.
43             (b) If the licensee is qualified as provided by this act, the license shall

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  1       be renewed upon receipt by the bureau of the items listed in subsection
  2       (a).
  3             (c) No license shall be renewed six months or more after the expi-
  4       ration date of the license, and such license shall be deemed to be per-
  5       manently expired. A person whose license has been permanently expired
  6       may reapply for licensure but an application for licensure and fees pur-
  7       suant to section 5, and amendments thereto, shall be submitted, and a
  8       background investigation shall be conducted pursuant to the provisions
  9       of that section.
10             New Sec.  9. The application form for an original license and for a
11       renewal license shall include, in a conspicuous place, the following:
12       "WARNING: A false statement on this application may subject the ap-
13       plicant to prosecution for the crime of perjury (K.S.A. 21-3805, and
14       amendments thereto)."
15             New Sec.  10. No license issued pursuant to this act shall authorize
16       the licensee to carry a concealed weapon into:
17             (a) Any place where an activity declared a common nuisance by
18       K.S.A. 22-3901, and amendments thereto, is maintained;
19             (b) any police, sheriff or highway patrol station;
20             (c) any detention facility, prison or jail;
21             (d) any courthouse;
22             (e) any courtroom, except that nothing in this section would preclude
23       a judge from carrying a concealed weapon or determining who will carry
24       a concealed weapon in the judge's courtroom;
25             (f) any polling place;
26             (g) any meeting of the governing body of a county, city or other po-
27       litical or taxing subdivision of the state;
28             (h) any meeting of the legislature or a committee thereof;
29             (i) any school, community college, college, university or professional
30       athletic event not related to firearms;
31             (j) any portion of an establishment licensed to dispense alcoholic liq-
32       uor or cereal malt beverage for consumption on the premises, which
33       portion of the establishment is primarily devoted to such purpose;
34             (k) any elementary or secondary school facility;
35             (l) any community college, college or university facility; or
36             (m) any place where the carrying of firearms is prohibited by federal
37       or state law[;
38             [(n) any residence without the consent of the resident].
39             New Sec.  11. Nothing in this act shall be construed to prevent:
40             (1) (a) Any public or private employer from restricting or prohibiting
41       in any manner persons licensed under this act from carrying a concealed
42       weapon while on the premises of the employer's business or while en-
43       gaged in the duties of the person's employment by the employer; or

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  1             (2) (b) any entity owning or operating business premises open to the
  2       public from restricting or prohibiting in any manner persons licensed
  3       under this act from carrying a concealed weapon while on such premises,
  4       provided that the premises are posted, in a manner reasonably likely to
  5       come to the attention of persons entering the premises, as premises where
  6       carrying a concealed weapon is prohibited.
  7             New Sec.  12. It is a class A nonperson misdemeanor for a person
  8       licensed pursuant to this act to carry a concealed weapon while under the
  9       influence of alcohol or drugs, or both.
10             New Sec.  13. (a) All moneys received by the bureau pursuant to this
11       act shall be remitted to the state treasurer who shall deposit the entire
12       amount in the state treasury and credit it to the concealed weapon licen-
13       sure fund, which is hereby created in the state treasury.
14             (b) Moneys in the concealed weapon licensure fund shall be used
15       only for: (1) Payment of the expenses of administration of the personal
16       and family protection act; and (2) transfers to the county law enforcement
17       equipment fund and to the forensic laboratory and materials fee fund as
18       provided by subsection (e).
19             (c) On or before the 10th day of each month, the director of accounts
20       and reports shall transfer from the state general fund to the concealed
21       weapon licensure fund the amount of money certified by the pooled
22       money investment board in accordance with this subsection. Prior to the
23       10th day of each month, the pooled money investment board shall certify
24       to the director of accounts and reports the amount of money equal to the
25       proportionate amount of all the interest credited to the state general fund
26       for the preceding month, pursuant to K.S.A. 75-4210a, and amendments
27       thereto, that is attributable to moneys in the concealed weapon licensure
28       fund. Such amount of money shall be determined by the pooled money
29       investment board based on: (1) The average daily balance of moneys in
30       the concealed weapon licensure fund for the preceding month; and (2)
31       the net earnings for the pooled money investment portfolio for the pre-
32       ceding month.
33             (d) All expenditures from the concealed weapon licensure fund shall
34       be made in accordance with appropriation acts upon warrants of the di-
35       rector of accounts and reports issued pursuant to vouchers approved by
36       the director of the bureau for the purposes set forth in this section.
37             (e) The director of the bureau shall certify to the director of accounts
38       and reports on each July 1 and January 1 after moneys are first credited
39       to the concealed weapons licensure fund the amount of moneys in such
40       fund needed to administer this act. On or before the 15th day of each
41       month after moneys are first credited to the concealed weapons licensure
42       fund, the director of accounts and reports shall transfer moneys in the
43       concealed weapons licensure fund as follows: (1) Of the amount in excess

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  1       of the amount certified by the director of the bureau, 20% shall be cred-
  2       ited to the county law enforcement equipment fund; and (2) the remain-
  3       ing 80% shall be credited to a separate account in the forensic laboratory
  4       and materials fee fund cited in K.S.A. 28-176, and amendments thereto,
  5       to be used solely to assist city and county law enforcement agencies to
  6       obtain prompt laboratory services from the bureau. Moneys credited to
  7       the forensic laboratory and materials fee fund as provided by this sub-
  8       section shall be used to supplement existing appropriations and shall not
  9       be used to supplant general fund appropriations to the Kansas bureau of
10       investigation.
11             New Sec.  14. (a) There is hereby created in the state treasury the
12       county law enforcement equipment fund.
13             (b) Moneys in the county law enforcement equipment fund shall be
14       used only to fund grants to sheriffs' departments for purchases of law
15       enforcement equipment other than motor vehicles. Such grants shall be
16       administered by the director of the bureau. Such grants shall be based
17       on applications submitted by sheriffs' departments that demonstrate the
18       need for the equipment for which the grant is sought and substantiate
19       that grant moneys will not be used to supplant existing funding of the
20       recipient sheriff's department.
21             (c) On or before the 10th day of each month, the director of accounts
22       and reports shall transfer from the state general fund to the county law
23       enforcement equipment fund interest earnings based on: (1) The average
24       daily balance of moneys in the county law enforcement equipment fund
25       for the preceding month; and (2) the net earnings rate of the pooled
26       money investment portfolio for the preceding month.
27             (d) All expenditures from the county law enforcement equipment
28       fund shall be made in accordance with appropriation acts upon warrants
29       of the director of accounts and reports issued pursuant to vouchers ap-
30       proved by the director of the bureau for the purposes set forth in this
31       section.
32             New Sec.  15. (a) The director of the bureau shall adopt such rules
33       and regulations as necessary to administer the provisions of this act.
34             (b) On or before January 1 of each year, the director of the bureau
35       shall submit a statistical report to the governor, president of the senate,
36       the senate minority leader, the speaker of the house of representatives
37       and the house minority leader indicating the number of licenses issued,
38       revoked, suspended and denied during the preceding fiscal year.
39             New Sec.  16. (a) The legislature finds as a matter of public policy
40       and fact that it is necessary to provide statewide uniform standards for
41       issuing licenses to carry concealed weapons for self-defense and finds it
42       necessary to occupy the field of regulation of the bearing of concealed
43       weapons for self-defense to ensure that no honest, law-abiding person

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  1       who qualifies under the provisions of this act is subjectively or arbitrarily
  2       denied the person's rights. Any city ordinance or county resolution that
  3       regulates, restricts or prohibits the carrying of concealed weapons shall
  4       not be applicable to any person licensed in accordance with the provisions
  5       of this act.
  6             (b) The legislature does not delegate to the bureau the authority to
  7       regulate or restrict the issuing of licenses provided for in this act, beyond
  8       those provisions of this act pertaining to licensing and training. Subjective
  9       or arbitrary actions or rules and regulations which encumber the issuing
10       process by placing burdens on the applicant beyond those sworn state-
11       ments and specified documents detailed in this act or which create re-
12       strictions beyond those specified in this act are in conflict with the intent
13       of this act and are prohibited.
14             (c) This act shall be liberally construed. This act is supplemental and
15       additional to existing constitutional rights to bear arms and nothing in this
16       act shall impair or diminish such rights.
17             New Sec.  17. If any provision of this act or the application thereof
18       to any person or circumstance is held invalid, the invalidity shall not affect
19       other provisions or applications of the act which can be given effect with-
20       out the invalid provision or application. To this end the provisions of this
21       act are severable.
22             Sec.  18. K.S.A. 1998 Supp. 21-4201 is hereby amended to read as
23       follows: 21-4201. (a) Criminal use of weapons is knowingly:
24             (1) Selling, manufacturing, purchasing, possessing or carrying any
25       bludgeon, sandclub, metal knuckles or throwing star, or any knife, com-
26       monly referred to as a switch-blade, which has a blade that opens auto-
27       matically by hand pressure applied to a button, spring or other device in
28       the handle of the knife, or any knife having a blade that opens or falls or
29       is ejected into position by the force of gravity or by an outward, downward
30       or centrifugal thrust or movement;
31             (2) carrying concealed on one's person, or possessing with intent to
32       use the same unlawfully against another, a dagger, dirk, billy, blackjack,
33       slung shot, dangerous knife, straight-edged razor, stiletto or any other
34       dangerous or deadly weapon or instrument of like character, except that
35       an ordinary pocket knife with no blade more than four inches in length
36       shall not be construed to be a dangerous knife, or a dangerous or deadly
37       weapon or instrument;
38             (3) carrying on one's person or in any land, water or air vehicle, with
39       intent to use the same unlawfully, a tear gas or smoke bomb or projector
40       or any object containing a noxious liquid, gas or substance;
41             (4) carrying any pistol, revolver or other firearm concealed on one's
42       person except when on the person's land or in the person's abode or fixed
43       place of business;

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  1             (5) setting a spring gun;
  2             (6) possessing any device or attachment of any kind designed, used
  3       or intended for use in silencing the report of any firearm;
  4             (7) selling, manufacturing, purchasing, possessing or carrying a shot-
  5       gun with a barrel less than 18 inches in length or any other firearm de-
  6       signed to discharge or capable of discharging automatically more than
  7       once by a single function of the trigger;
  8             (8) possessing, manufacturing, causing to be manufactured, selling,
  9       offering for sale, lending, purchasing or giving away any cartridge which
10       can be fired by a handgun and which has a plastic-coated bullet that has
11       a core of less than 60% lead by weight; or
12             (9) possessing or transporting any incendiary or explosive material,
13       liquid, solid or mixture, equipped with a fuse, wick or any other detonat-
14       ing device, commonly known as a molotov cocktail or a pipe bomb.
15             (b) Subsections (a)(1), (2), (3), (4) and (7) shall not apply to or affect
16       any of the following:
17             (1) Law enforcement officers, or any person summoned by any such
18       officers to assist in making arrests or preserving the peace while actually
19       engaged in assisting such officer;
20             (2) wardens, superintendents, directors, security personnel and keep-
21       ers of prisons, penitentiaries, jails and other institutions for the detention
22       of persons accused or convicted of crime, while acting within the scope
23       of their authority;
24             (3) members of the armed services or reserve forces of the United
25       States or the Kansas national guard while in the performance of their
26       official duty; or
27             (4) manufacture of, transportation to, or sale of weapons to a person
28       authorized under subsections (b)(1), (2) and (3) to possess such weapons.
29             (c) Subsection (a)(4) shall not apply to or affect the following:
30             (1) Watchmen, while actually engaged in the performance of the du-
31       ties of their employment;
32             (2) licensed hunters or fishermen, while engaged in hunting or
33       fishing;
34             (3) private detectives licensed by the state to carry the firearm in-
35       volved, while actually engaged in the duties of their employment;
36             (4) detectives or special agents regularly employed by railroad com-
37       panies or other corporations to perform full-time security or investigative
38       service, while actually engaged in the duties of their employment;
39             (5) the state fire marshal, the state fire marshal's deputies or any
40       member of a fire department authorized to carry a firearm pursuant to
41       K.S.A. 31-157, and amendments thereto, while engaged in an investiga-
42       tion in which such fire marshal, deputy or member is authorized to carry
43       a firearm pursuant to K.S.A. 31-157, and amendments thereto; or

HB 2240--Am. by HCW

11

  1             (6) special deputy sheriffs described in K.S.A. 1998 Supp. 19-827,
  2       and amendments thereto, who have satisfactorily completed the basic
  3       course of instruction required for permanent appointment as a part-time
  4       law enforcement officer under K.S.A. 74-5607a, and amendments
  5       thereto.
  6             (d) Subsections (a)(1), (6) and (7) shall not apply to any person who
  7       sells, purchases, possesses or carries a firearm, device or attachment
  8       which has been rendered unserviceable by steel weld in the chamber and
  9       marriage weld of the barrel to the receiver and which has been registered
10       in the national firearms registration and transfer record in compliance
11       with 26 U.S.C. 5841 et seq. in the name of such person and, if such person
12       transfers such firearm, device or attachment to another person, has been
13       so registered in the transferee's name by the transferor.
14             (e) Subsection (a)(8) shall not apply to a governmental laboratory or
15       solid plastic bullets.
16             (f) Subsection (a)(4) shall not apply to any person carrying a con-
17       cealed weapon as authorized by sections 1 through 17, and amendments
18       thereto.
19             (g) It shall be a defense that the defendant is within an exemption.
20             (g) (h) Violation of subsections (a)(1) through (a)(5) or subsection
21       (a)(9) is a class A nonperson misdemeanor. Violation of subsection (a)(6),
22       (a)(7) or (a)(8) is a severity level 9, nonperson felony.
23             (h) (i) As used in this section, "throwing star" means any instrument,
24       without handles, consisting of a metal plate having three or more radiating
25       points with one or more sharp edges and designed in the shape of a
26       polygon, trefoil, cross, star, diamond or other geometric shape, manufac-
27       tured for use as a weapon for throwing.
28             Sec.  19. K.S.A. 1998 Supp. 12-4516 is hereby amended to read as
29       follows: 12-4516. (a)  (1) Except as provided in subsection (b), any per-
30       son who has been convicted of a violation of a city ordinance of this state
31       may petition the convicting court for the expungement of such conviction
32       and related arrest records if three or more years have elapsed since the
33       person:
34             (A) Satisfied the sentence imposed; or
35             (B) was discharged from probation, parole or a suspended sentence.
36             (2) Except as provided in subsection (b), any person who has fulfilled
37       the terms of a diversion agreement based on a violation of a city ordinance
38       of this state may petition the court for the expungement of such diversion
39       agreement and related arrest records if three or more years have elapsed
40       since the terms of the diversion agreement were fulfilled.
41             (b) No person may petition for expungement until five or more years
42       have elapsed since the person satisfied the sentence imposed or the terms
43       of a diversion agreement or was discharged from probation, parole, con-

HB 2240--Am. by HCW

12

  1       ditional release or a suspended sentence, if such person was convicted of
  2       the violation of a city ordinance which would also constitute:
  3             (1) Vehicular homicide, as defined by K.S.A. 21-3405, and amend-
  4       ments thereto;
  5             (2) a violation of K.S.A. 8-1567, and amendments thereto;
  6             (3) driving while the privilege to operate a motor vehicle on the public
  7       highways of this state has been canceled, suspended or revoked, as pro-
  8       hibited by K.S.A. 8-262, and amendments thereto;
  9             (4) perjury resulting from a violation of K.S.A. 8-261a, and amend-
10       ments thereto;
11             (5) a violation of the provisions of the fifth clause of K.S.A. 8-142,
12       and amendments thereto, relating to fraudulent applications;
13             (6) any crime punishable as a felony wherein a motor vehicle was
14       used in the perpetration of such crime;
15             (7) failing to stop at the scene of an accident and perform the duties
16       required by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto;
17             (8) a violation of the provisions of K.S.A. 40-3104, and amendments
18       thereto, relating to motor vehicle liability insurance coverage; or
19             (9) a violation of K.S.A. 21-3405b, and amendments thereto.
20             (c) When a petition for expungement is filed, the court shall set a
21       date for a hearing of such petition and shall cause notice of such hearing
22       to be given to the prosecuting attorney and the arresting law enforcement
23       agency. The petition shall state:
24             (1) The defendant's full name;
25             (2) the full name of the defendant at the time of arrest , conviction
26       or diversion, if different than the defendant's current name;
27             (3) the defendant's sex, race and date of birth;
28             (4) the crime for which the defendant was arrested, convicted or
29       diverted;
30             (5) the date of the defendant's arrest, conviction or diversion; and
31             (6) the identity of the convicting court, arresting law enforcement
32       agency or diverting authority.
33             A municipal court may prescribe a fee to be charged as costs for a
34       person petitioning for an order of expungement pursuant to this section.
35       Any person who may have relevant information about the petitioner may
36       testify at the hearing. The court may inquire into the background of the
37       petitioner and shall have access to any reports or records relating to the
38       petitioner that are on file with the secretary of corrections or the Kansas
39       parole board.
40             (d) At the hearing on the petition, the court shall order the peti-
41       tioner's arrest record, conviction or diversion expunged if the court finds
42       that:
43             (1) The petitioner has not been convicted of a felony in the past two

HB 2240--Am. by HCW

13

  1       years and no proceeding involving any such crime is presently pending
  2       or being instituted against the petitioner;
  3             (2) the circumstances and behavior of the petitioner warrant the
  4       expungement; and
  5             (3) the expungement is consistent with the public welfare.
  6             (e) When the court has ordered an arrest record, conviction or di-
  7       version expunged, the order of expungement shall state the information
  8       required to be contained in the petition. The clerk of the court shall send
  9       a certified copy of the order of expungement to the Kansas bureau of
10       investigation which shall notify the federal bureau of investigation, the
11       secretary of corrections and any other criminal justice agency which may
12       have a record of the arrest, conviction or diversion. After the order of
13       expungement is entered, the petitioner shall be treated as not having been
14       arrested, convicted or diverted of the crime, except that:
15             (1) Upon conviction for any subsequent crime, the conviction that
16       was expunged may be considered as a prior conviction in determining the
17       sentence to be imposed;
18             (2) the petitioner shall disclose that the arrest, conviction or diversion
19       occurred if asked about previous arrests, convictions or diversions:
20             (A) In any application for employment as a detective with a private
21       detective agency, as defined by K.S.A. 75-7b01, and amendments thereto;
22       as security personnel with a private patrol operator, as defined by K.S.A.
23       75-7b01, and amendments thereto; or with an institution, as defined in
24       K.S.A. 76-12a01, and amendments thereto, of the department of social
25       and rehabilitation services;
26             (B) in any application for admission, or for an order of reinstatement,
27       to the practice of law in this state;
28             (C) to aid in determining the petitioner's qualifications for employ-
29       ment with the Kansas lottery or for work in sensitive areas within the
30       Kansas lottery as deemed appropriate by the executive director of the
31       Kansas lottery;
32             (D) to aid in determining the petitioner's qualifications for executive
33       director of the Kansas racing commission, for employment with the com-
34       mission or for work in sensitive areas in parimutuel racing as deemed
35       appropriate by the executive director of the commission, or to aid in
36       determining qualifications for licensure or renewal of licensure by the
37       commission;
38             (E) upon application for a commercial driver's license under K.S.A.
39       8-2,125 through 8-2,142, and amendments thereto;
40             (F) to aid in determining the petitioner's qualifications to be an em-
41       ployee of the state gaming agency;
42             (G) to aid in determining the petitioner's qualifications to be an em-
43       ployee of a tribal gaming commission or to hold a license issued pursuant

HB 2240--Am. by HCW

14

  1       to a tribal-state gaming compact; or
  2             (H) in any application for registration as a broker-dealer, agent, in-
  3       vestment adviser or investment adviser representative all as defined in
  4       K.S.A. 17-1252, and amendments thereto; or
  5             (I) to aid in determining the petitioner's qualifications for a license to
  6       carry a concealed weapon pursuant to the personal and family and pro-
  7       tection act;
  8             (3) the court, in the order of expungement, may specify other cir-
  9       cumstances under which the arrest, conviction or diversion is to be dis-
10       closed; and
11             (4) the conviction may be disclosed in a subsequent prosecution for
12       an offense which requires as an element of such offense a prior conviction
13       of the type expunged.
14             (f) Whenever a person is convicted of an ordinance violation, pleads
15       guilty and pays a fine for such a violation, is placed on parole or probation
16       or is granted a suspended sentence for such a violation, the person shall
17       be informed of the ability to expunge the arrest records or conviction.
18       Whenever a person enters into a diversion agreement, the person shall
19       be informed of the ability to expunge the diversion.
20             (g) Subject to the disclosures required pursuant to subsection (e), in
21       any application for employment, license or other civil right or privilege,
22       or any appearance as a witness, a person whose arrest records, conviction
23       or diversion of an offense has been expunged under this statute may state
24       that such person has never been arrested, convicted or diverted of such
25       offense.
26             (h) Whenever the record of any arrest, conviction or diversion has
27       been expunged under the provisions of this section or under the provi-
28       sions of any other existing or former statute, the custodian of the records
29       of arrest, conviction, diversion and incarceration relating to that crime
30       shall not disclose the existence of such records, except when requested
31       by:
32             (1) The person whose record was expunged;
33             (2) a private detective agency or a private patrol operator, and the
34       request is accompanied by a statement that the request is being made in
35       conjunction with an application for employment with such agency or op-
36       erator by the person whose record has been expunged;
37             (3) a court, upon a showing of a subsequent conviction of the person
38       whose record has been expunged;
39             (4) the secretary of social and rehabilitation services, or a designee of
40       the secretary, for the purpose of obtaining information relating to em-
41       ployment in an institution, as defined in K.S.A. 76-12a01, and amend-
42       ments thereto, of the department of social and rehabilitation services of
43       any person whose record has been expunged;

HB 2240--Am. by HCW

15

  1             (5) a person entitled to such information pursuant to the terms of the
  2       expungement order;
  3             (6) a prosecuting attorney, and such request is accompanied by a
  4       statement that the request is being made in conjunction with a prosecu-
  5       tion of an offense that requires a prior conviction as one of the elements
  6       of such offense;
  7             (7) the supreme court, the clerk or disciplinary administrator thereof,
  8       the state board for admission of attorneys or the state board for discipline
  9       of attorneys, and the request is accompanied by a statement that the
10       request is being made in conjunction with an application for admission,
11       or for an order of reinstatement, to the practice of law in this state by the
12       person whose record has been expunged;
13             (8) the Kansas lottery, and the request is accompanied by a statement
14       that the request is being made to aid in determining qualifications for
15       employment with the Kansas lottery or for work in sensitive areas within
16       the Kansas lottery as deemed appropriate by the executive director of the
17       Kansas lottery;
18             (9) the governor or the Kansas racing commission, or a designee of
19       the commission, and the request is accompanied by a statement that the
20       request is being made to aid in determining qualifications for executive
21       director of the commission, for employment with the commission, for
22       work in sensitive areas in parimutuel racing as deemed appropriate by
23       the executive director of the commission or for licensure, renewal of
24       licensure or continued licensure by the commission;
25             (10) the state gaming agency, and the request is accompanied by a
26       statement that the request is being made to aid in determining qualifi-
27       cations: (A) To be an employee of the state gaming agency; or (B) to be
28       an employee of a tribal gaming commission or to hold a license issued
29       pursuant to a tribal-state gaming compact; or
30             (11) the Kansas securities commissioner, or a designee of the com-
31       missioner, and the request is accompanied by a statement that the request
32       is being made in conjunction with an application for registration as a
33       broker-dealer, agent, investment adviser or investment adviser represen-
34       tative by such agency and the application was submitted by the person
35       whose record has been expunged.; or
36             (12) the Kansas bureau of investigation and the request is accompa-
37       nied by a statement that the request is being made to aid in determining
38       qualifications for a license to carry a concealed weapon pursuant to the
39       personal and family protection act.
40             Sec.  20. K.S.A. 1998 Supp. 21-4619 is hereby amended to read as
41       follows: 21-4619. (a)  (1) Except as provided in subsections (b) and (c),
42       any person convicted in this state of a traffic infraction, cigarette or to-
43       bacco infraction, misdemeanor or a class D or E felony, or for crimes

HB 2240--Am. by HCW

16

  1       committed on or after July 1, 1993, nondrug crimes ranked in severity
  2       levels 6 through 10 or any felony ranked in severity level 4 of the drug
  3       grid, may petition the convicting court for the expungement of such con-
  4       viction or related arrest records if three or more years have elapsed since
  5       the person: (A) Satisfied the sentence imposed; or (B) was discharged
  6       from probation, a community correctional services program, parole, post-
  7       release supervision, conditional release or a suspended sentence.
  8             (2) Except as provided in subsections (b) and (c), any person who has
  9       fulfilled the terms of a diversion agreement may petition the district court
10       for the expungement of such diversion agreement and related arrest re-
11       cords if three or more years have elapsed since the terms of the diversion
12       agreement were fulfilled.
13             (b) Except as provided in subsection (c), no person may petition for
14       expungement until five or more years have elapsed since the person sat-
15       isfied the sentence imposed, the terms of a diversion agreement or was
16       discharged from probation, a community correctional services program,
17       parole, postrelease supervision, conditional release or a suspended sen-
18       tence, if such person was convicted of a class A, B or C felony, or for
19       crimes committed on or after July 1, 1993, if convicted of an off-grid
20       felony or any nondrug crime ranked in severity levels 1 through 5 or any
21       felony ranked in severity levels 1 through 3 of the drug grid, or:
22             (1) Vehicular homicide, as defined by K.S.A. 21-3405 and amend-
23       ments thereto or as prohibited by any law of another state which is in
24       substantial conformity with that statute;
25             (2) a violation of K.S.A. 8-1567 and amendments thereto, or a viola-
26       tion of any law of another state, which declares to be unlawful the acts
27       prohibited by that statute;
28             (3) driving while the privilege to operate a motor vehicle on the public
29       highways of this state has been canceled, suspended or revoked, as pro-
30       hibited by K.S.A. 8-262 and amendments thereto or as prohibited by any
31       law of another state which is in substantial conformity with that statute;
32             (4) perjury resulting from a violation of K.S.A. 8-261a and amend-
33       ments thereto or resulting from the violation of a law of another state
34       which is in substantial conformity with that statute;
35             (5) violating the provisions of the fifth clause of K.S.A. 8-142 and
36       amendments thereto, relating to fraudulent applications or violating the
37       provisions of a law of another state which is in substantial conformity with
38       that statute;
39             (6) any crime punishable as a felony wherein a motor vehicle was
40       used in the perpetration of such crime;
41             (7) failing to stop at the scene of an accident and perform the duties
42       required by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto,
43       or required by a law of another state which is in substantial conformity

HB 2240--Am. by HCW

17

  1       with those statutes;
  2             (8) violating the provisions of K.S.A. 40-3104 and amendments
  3       thereto, relating to motor vehicle liability insurance coverage; or
  4             (9) a violation of K.S.A. 21-3405b, and amendments thereto, prior to
  5       its repeal.
  6             (c) There shall be no expungement of convictions for the following
  7       offenses or of convictions for an attempt to commit any of the following
  8       offenses: (1) Rape as defined in subsection (a)(2) of K.S.A. 21-3502 and
  9       amendments thereto; (2) indecent liberties with a child as defined in
10       K.S.A. 21-3503 and amendments thereto; (3) aggravated indecent liber-
11       ties with a child as defined in K.S.A. 21-3504 and amendments thereto;
12       (4) criminal sodomy as defined in subsection (a)(2) or (a)(3) of K.S.A. 21-
13       3505 and amendments thereto; (5) aggravated criminal sodomy as defined
14       in K.S.A. 21-3506 and amendments thereto; (6) indecent solicitation of a
15       child as defined in K.S.A. 21-3510 and amendments thereto; (7) aggra-
16       vated indecent solicitation of a child as defined in K.S.A. 21-3511 and
17       amendments thereto; (8) sexual exploitation of a child as defined in K.S.A.
18       21-3516 and amendments thereto; (9) aggravated incest as defined in
19       K.S.A. 21-3603 and amendments thereto; (10) endangering a child as
20       defined in K.S.A. 21-3608 and amendments thereto; (11) abuse of a child
21       as defined in K.S.A. 21-3609 and amendments thereto; (12) capital mur-
22       der as defined in K.S.A. 21-3439 and amendments thereto; (13) murder
23       in the first degree as defined in K.S.A. 21-3401 and amendments thereto;
24       (14) murder in the second degree as defined in K.S.A. 21-3402 and
25       amendments thereto; (15) voluntary manslaughter as defined in K.S.A.
26       21-3403 and amendments thereto; (16) involuntary manslaughter as de-
27       fined in K.S.A. 21-3404 and amendments thereto; (17) involuntary man-
28       slaughter while driving under the influence of alcohol or drugs as defined
29       in K.S.A. 21-3442 and amendments thereto; or (18) any conviction for
30       any offense in effect at any time prior to the effective date of this act,
31       that is comparable to any offense as provided in this subsection.
32             (d) When a petition for expungement is filed, the court shall set a
33       date for a hearing of such petition and shall cause notice of such hearing
34       to be given to the prosecuting attorney and the arresting law enforcement
35       agency. The petition shall state: (1) The defendant's full name;
36             (2) the full name of the defendant at the time of arrest, conviction or
37       diversion, if different than the defendant's current name;
38             (3) the defendant's sex, race and date of birth;
39             (4) the crime for which the defendant was arrested, convicted or
40       diverted;
41             (5) the date of the defendant's arrest, conviction or diversion; and
42             (6) the identity of the convicting court, arresting law enforcement
43       authority or diverting authority. There shall be no docket fee for filing a

HB 2240--Am. by HCW

18

  1       petition pursuant to this section. All petitions for expungement shall be
  2       docketed in the original criminal action. Any person who may have rel-
  3       evant information about the petitioner may testify at the hearing. The
  4       court may inquire into the background of the petitioner and shall have
  5       access to any reports or records relating to the petitioner that are on file
  6       with the secretary of corrections or the Kansas parole board.
  7             (e) At the hearing on the petition, the court shall order the peti-
  8       tioner's arrest record, conviction or diversion expunged if the court finds
  9       that:
10             (1) The petitioner has not been convicted of a felony in the past two
11       years and no proceeding involving any such crime is presently pending
12       or being instituted against the petitioner;
13             (2) the circumstances and behavior of the petitioner warrant the
14       expungement; and
15             (3) the expungement is consistent with the public welfare.
16             (f) When the court has ordered an arrest record, conviction or diver-
17       sion expunged, the order of expungement shall state the information re-
18       quired to be contained in the petition. The clerk of the court shall send
19       a certified copy of the order of expungement to the Kansas bureau of
20       investigation which shall notify the federal bureau of investigation, the
21       secretary of corrections and any other criminal justice agency which may
22       have a record of the arrest, conviction or diversion. After the order of
23       expungement is entered, the petitioner shall be treated as not having been
24       arrested, convicted or diverted of the crime, except that:
25             (1) Upon conviction for any subsequent crime, the conviction that
26       was expunged may be considered as a prior conviction in determining the
27       sentence to be imposed;
28             (2) the petitioner shall disclose that the arrest, conviction or diversion
29       occurred if asked about previous arrests, convictions or diversions: (A) In
30       any application for employment as a detective with a private detective
31       agency, as defined by K.S.A. 75-7b01 and amendments thereto; as se-
32       curity personnel with a private patrol operator, as defined by K.S.A. 75-
33       7b01 and amendments thereto; or with an institution, as defined in K.S.A.
34       76-12a01 and amendments thereto, of the department of social and re-
35       habilitation services;
36             (B) in any application for admission, or for an order of reinstatement,
37       to the practice of law in this state;
38             (C) to aid in determining the petitioner's qualifications for employ-
39       ment with the Kansas lottery or for work in sensitive areas within the
40       Kansas lottery as deemed appropriate by the executive director of the
41       Kansas lottery;
42             (D) to aid in determining the petitioner's qualifications for executive
43       director of the Kansas racing commission, for employment with the com-

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  1       mission or for work in sensitive areas in parimutuel racing as deemed
  2       appropriate by the executive director of the commission, or to aid in
  3       determining qualifications for licensure or renewal of licensure by the
  4       commission;
  5             (E) upon application for a commercial driver's license under K.S.A.
  6       8-2,125 through 8-2,142, and amendments thereto;
  7             (F) to aid in determining the petitioner's qualifications to be an em-
  8       ployee of the state gaming agency;
  9             (G) to aid in determining the petitioner's qualifications to be an em-
10       ployee of a tribal gaming commission or to hold a license issued pursuant
11       to a tribal-state gaming compact; or
12             (H) in any application for registration as a broker-dealer, agent, in-
13       vestment adviser or investment adviser representative all as defined in
14       K.S.A. 17-1252 and amendments thereto; or
15             (I) to aid in determining the petitioner's qualifications for a license to
16       carry a concealed weapon pursuant to the personal and family protection
17       act;
18             (3) the court, in the order of expungement, may specify other cir-
19       cumstances under which the conviction is to be disclosed;
20             (4) the conviction may be disclosed in a subsequent prosecution for
21       an offense which requires as an element of such offense a prior conviction
22       of the type expunged; and
23             (5) upon commitment to the custody of the secretary of corrections,
24       any previously expunged record in the possession of the secretary of cor-
25       rections may be reinstated and the expungement disregarded, and the
26       record continued for the purpose of the new commitment.
27             (g) Whenever a person is convicted of a crime, pleads guilty and pays
28       a fine for a crime, is placed on parole, postrelease supervision or proba-
29       tion, is assigned to a community correctional services program, is granted
30       a suspended sentence or is released on conditional release, the person
31       shall be informed of the ability to expunge the arrest records or convic-
32       tion. Whenever a person enters into a diversion agreement, the person
33       shall be informed of the ability to expunge the diversion.
34             (h) Subject to the disclosures required pursuant to subsection (f), in
35       any application for employment, license or other civil right or privilege,
36       or any appearance as a witness, a person whose arrest records, conviction
37       or diversion of a crime has been expunged under this statute may state
38       that such person has never been arrested, convicted or diverted of such
39       crime, but the expungement of a felony conviction does not relieve an
40       individual of complying with any state or federal law relating to the use
41       or possession of firearms by persons convicted of a felony.
42             (i) Whenever the record of any arrest, conviction or diversion has
43       been expunged under the provisions of this section or under the provi-

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  1       sions of any other existing or former statute, the custodian of the records
  2       of arrest, conviction, diversion and incarceration relating to that crime
  3       shall not disclose the existence of such records, except when requested
  4       by:
  5             (1) The person whose record was expunged;
  6             (2) a private detective agency or a private patrol operator, and the
  7       request is accompanied by a statement that the request is being made in
  8       conjunction with an application for employment with such agency or op-
  9       erator by the person whose record has been expunged;
10             (3) a court, upon a showing of a subsequent conviction of the person
11       whose record has been expunged;
12             (4) the secretary of social and rehabilitation services, or a designee of
13       the secretary, for the purpose of obtaining information relating to em-
14       ployment in an institution, as defined in K.S.A. 76-12a01 and amend-
15       ments thereto, of the department of social and rehabilitation services of
16       any person whose record has been expunged;
17             (5) a person entitled to such information pursuant to the terms of the
18       expungement order;
19             (6) a prosecuting attorney, and such request is accompanied by a
20       statement that the request is being made in conjunction with a prosecu-
21       tion of an offense that requires a prior conviction as one of the elements
22       of such offense;
23             (7) the supreme court, the clerk or disciplinary administrator thereof,
24       the state board for admission of attorneys or the state board for discipline
25       of attorneys, and the request is accompanied by a statement that the
26       request is being made in conjunction with an application for admission,
27       or for an order of reinstatement, to the practice of law in this state by the
28       person whose record has been expunged;
29             (8) the Kansas lottery, and the request is accompanied by a statement
30       that the request is being made to aid in determining qualifications for
31       employment with the Kansas lottery or for work in sensitive areas within
32       the Kansas lottery as deemed appropriate by the executive director of the
33       Kansas lottery;
34             (9) the governor or the Kansas racing commission, or a designee of
35       the commission, and the request is accompanied by a statement that the
36       request is being made to aid in determining qualifications for executive
37       director of the commission, for employment with the commission, for
38       work in sensitive areas in parimutuel racing as deemed appropriate by
39       the executive director of the commission or for licensure, renewal of
40       licensure or continued licensure by the commission;
41             (10) the Kansas sentencing commission;
42             (11) the state gaming agency, and the request is accompanied by a
43       statement that the request is being made to aid in determining qualifi-

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  1       cations: (A) To be an employee of the state gaming agency; or (B) to be
  2       an employee of a tribal gaming commission or to hold a license issued
  3       pursuant to a tribal-gaming compact; or
  4             (12) the Kansas securities commissioner or a designee of the com-
  5       missioner, and the request is accompanied by a statement that the request
  6       is being made in conjunction with an application for registration as a
  7       broker-dealer, agent, investment adviser or investment adviser represen-
  8       tative by such agency and the application was submitted by the person
  9       whose record has been expunged.; or
10             (13) the Kansas bureau of investigation and the request is accompa-
11       nied by a statement that the request is being made to aid in determining
12       qualifications for a license to carry a concealed weapon pursuant to the
13       personal and family protection act.
14             [Sec.  21. K.S.A. 1998 Supp. 21-4716 is hereby amended to
15       read as follows: 21-4716. (a) The sentencing judge shall impose the
16       presumptive sentence provided by the sentencing guidelines for
17       crimes committed on or after July 1, 1993, unless the judge finds
18       substantial and compelling reasons to impose a departure. If the
19       sentencing judge departs from the presumptive sentence, the
20       judge shall state on the record at the time of sentencing the sub-
21       stantial and compelling reasons for the departure.
22             [(b)  (1) Subject to the provisions of subsection (b)(3), the fol-
23       lowing nonexclusive list of mitigating factors may be considered in
24       determining whether substantial and compelling reasons for a de-
25       parture exist:
26             [(A) The victim was an aggressor or participant in the criminal
27       conduct associated with the crime of conviction.
28             [(B) The offender played a minor or passive role in the crime
29       or participated under circumstances of duress or compulsion. This
30       factor is not sufficient as a complete defense.
31             [(C) The offender, because of physical or mental impairment,
32       lacked substantial capacity for judgment when the offense was
33       committed. The voluntary use of intoxicants, drugs or alcohol does
34       not fall within the purview of this factor.
35             [(D) The defendant, or the defendant's children, suffered a
36       continuing pattern of physical or sexual abuse by the victim of the
37       offense and the offense is a response to that abuse.
38             [(E) The degree of harm or loss attributed to the current crime
39       of conviction was significantly less than typical for such an offense.
40             [(2) Subject to the provisions of subsection (b)(3), the following
41       nonexclusive list of aggravating factors may be considered in de-
42       termining whether substantial and compelling reasons for depar-
43       ture exist:

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  1             [(A) The victim was particularly vulnerable due to age, infir-
  2       mity, or reduced physical or mental capacity which was known or
  3       should have been known to the offender.
  4             [(B) The defendant's conduct during the commission of the
  5       current offense manifested excessive brutality to the victim in a
  6       manner not normally present in that offense.
  7             [(C) The offense was motivated entirely or in part by the race,
  8       color, religion, ethnicity, national origin or sexual orientation of
  9       the victim.
10             [(D) The offense involved a fiduciary relationship which ex-
11       isted between the defendant and the victim.
12             [(E) The defendant, 18 or more years of age, employed, hired,
13       used, persuaded, induced, enticed or coerced any individual under
14       16 years of age to commit or assist in avoiding detection or appre-
15       hension for commission of any person felony or any attempt, con-
16       spiracy or solicitation as defined in K.S.A. 21-3301, 21-3302 or 21-
17       3303 and amendments thereto to commit any person felony
18       regardless of whether the defendant knew the age of the individual
19       under 16 years of age.
20             [(F) The defendant's current crime of conviction is a crime of
21       extreme sexual violence and the defendant is a predatory sex of-
22       fender. As used in this subsection:
23             [(i) "Crime of extreme sexual violence" is a felony limited to
24       the following:
25             [(a) A crime involving a nonconsensual act of sexual inter-
26       course or sodomy with any person;
27             [(b) a crime involving an act of sexual intercourse, sodomy or
28       lewd fondling and touching with any child who is 14 or more years
29       of age but less than 16 years of age and with whom a relationship
30       has been established or promoted for the primary purpose of vic-
31       timization; or
32             [(c) a crime involving an act of sexual intercourse, sodomy or
33       lewd fondling and touching with any child who is less than 14 years
34       of age.
35             [(ii) "Predatory sex offender" is an offender who has been con-
36       victed of a crime of extreme sexual violence as the current crime
37       of conviction and who:
38             [(a) Has one or more prior convictions of any crimes of extreme
39       sexual violence. Any prior conviction used to establish the defend-
40       ant as a predatory sex offender pursuant to this subsection shall
41       also be counted in determining the criminal history category; or
42             [(b) suffers from a mental condition or personality disorder
43       which makes the offender likely to engage in additional acts con-

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23

  1       stituting crimes of extreme sexual violence.
  2             [(iii) "Mental condition or personality disorder" means an
  3       emotional, mental or physical illness, disease, abnormality, disor-
  4       der, pathology or condition which motivates the person, affects the
  5       predisposition or desires of the person, or interferes with the ca-
  6       pacity of the person to control impulses to commit crimes of ex-
  7       treme sexual violence.
  8             [In determining whether aggravating factors exist as provided
  9       in this section, the court shall review the victim impact statement.
10             [(3) If a factual aspect of a crime is a statutory element of the
11       crime or is used to subclassify the crime on the crime severity scale,
12       that aspect of the current crime of conviction may be used as an
13       aggravating or mitigating factor only if the criminal conduct con-
14       stituting that aspect of the current crime of conviction is signifi-
15       cantly different from the usual criminal conduct captured by the
16       aspect of the crime.
17             [(c) In determining aggravating or mitigating circumstances,
18       the court shall consider:
19             [(1) Any evidence received during the proceeding;
20             [(2) the presentence report;
21             [(3) written briefs and oral arguments of either the state or
22       counsel for the defendant; and
23             [(4) whether a concealed weapon was used during the commission of
24       a crime by a person holding a valid permit to carry a concealed weapon
25       issued pursuant to this act; and
26             [(4) (5) any other evidence relevant to such aggravating or mit-
27       igating circumstances that the court finds trustworthy and
28       reliable.]
29             Sec.  21. [22.] K.S.A. 1998 Supp. 12-4516, 21-4201 and 21-4619[, 21-
30       4619 and 21-4716] are hereby repealed.
31             Sec.  22. [23.] This act shall take effect and be in force from and after
32       its publication in the statute book.
33