Session of 1999
SENATE BILL No. 178
By Committee on Transportation and Tourism
2-1
9 AN ACT concerning alcohol or drug related offenses involving the op-
10 eration of a vehicle; amending K.S.A. 1998 Supp. 8-1002 and repealing
11 the existing section.
12
13 Be it enacted by the Legislature of the State of Kansas:
14 Section 1. K.S.A. 1998 Supp. 8-1002 is hereby amended to read as
15 follows: 8-1002. (a) Whenever a test is requested pursuant to this act and
16 results in either a test failure or test refusal, a law enforcement officer's
17 certification shall be prepared. If the person had been driving a com-
18 mercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments
19 thereto, a separate certification pursuant to K.S.A. 8-2,145 and amend-
20 ments thereto shall be prepared in addition to any certification required
21 by this section. The certification required by this section shall be signed
22 by one or more officers to certify:
23 (1) With regard to a test refusal, that: (A) There existed reasonable
24 grounds to believe the person was operating or attempting to operate a
25 vehicle while under the influence of alcohol or drugs, or both, or to be-
26 lieve that the person had been driving a commercial motor vehicle, as
27 defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol
28 or other drugs in such person's system; (B) the person had been placed
29 under arrest, was in custody or had been involved in a vehicle accident
30 or collision; (C) a law enforcement officer had presented the person with
31 the oral and written notice required by K.S.A. 8-1001, and amendments
32 thereto; and (D) the person refused to submit to and complete a test as
33 requested by a law enforcement officer.
34 (2) With regard to a test failure, that: (A) There existed reasonable
35 grounds to believe the person was operating a vehicle while under the
36 influence of alcohol or drugs, or both, or to believe that the person had
37 been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128,
38 and amendments thereto, while having alcohol or other drugs in such
39 person's system; (B) the person had been placed under arrest, was in
40 custody or had been involved in a vehicle accident or collision; (C) a law
41 enforcement officer had presented the person with the oral and written
42 notice required by K.S.A. 8-1001, and amendments thereto; and (D) the
43 result of the test showed that the person had an alcohol concentration of
44 .08 or greater in such person's blood or breath.
45 (3) With regard to failure of a breath test, in addition to those matters
46 required to be certified under subsection (a)(2), that: (A) The testing
47 equipment used was certified by the Kansas department of health and
48 environment; (B) the testing procedures used were in accordance with
49 the requirements set out by the Kansas department of health and envi-
50 ronment; and (C) the person who operated the testing equipment was
51 certified by the Kansas department of health and environment to operate
52 such equipment.
53 (b) For purposes of this section, certification shall be complete upon
54 signing, and no additional acts of oath, affirmation, acknowledgment or
55 proof of execution shall be required. The signed certification or a copy
56 or photostatic reproduction thereof shall be admissible in evidence in all
57 proceedings brought pursuant to this act, and receipt of any such certi-
58 fication, copy or reproduction shall accord the department authority to
59 proceed as set forth herein. Any person who signs a certification submit-
60 ted to the division knowing it contains a false statement is guilty of a class
61 B nonperson misdemeanor.
62 (c) When the officer directing administration of the testing deter-
63 mines that a person has refused a test and the criteria of subsection (a)(1)
64 have been met or determines that a person has failed a test and the criteria
65 of subsection (a)(2) have been met, the officer shall serve upon the person
66 notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and
67 amendments thereto. If the determination is made while the person is
68 still in custody, service shall be made in person by the officer on behalf
69 of the division of vehicles. In cases where a test failure is established by
70 a subsequent analysis of a breath, blood or urine sample, the officer shall
71 serve notice of such suspension in person or by another designated officer
72 or by mailing the notice to the person at the address provided at the time
73 of the test.
74 (d) In addition to the information required by subsection (a), the law
75 enforcement officer's certification and notice of suspension shall contain
76 the following information: (1) The person's name, driver's license number
77 and current address; (2) the reason and statutory grounds for the suspen-
78 sion; (3) the date notice is being served and a statement that the effective
79 date of the suspension shall be the 30th calendar day after the date of
80 service; (4) the right of the person to request an administrative hearing;
81 and (5) the procedure the person must follow to request an administrative
82 hearing. The law enforcement officer's certification and notice of suspen-
83 sion shall also inform the person that all correspondence will be mailed
84 to the person at the address contained in the law enforcement officer's
85 certification and notice of suspension unless the person notifies the di-
86 vision in writing of a different address or change of address. The address
87 provided will be considered a change of address for purposes of K.S.A.
88 8-248, and amendments thereto, if the address furnished is different from
89 that on file with the division.
90 (e) If a person refuses a test or if a person is still in custody when it
91 is determined that the person has failed a test, the officer shall take any
92 license in the possession of the person and, if the license is not expired,
93 suspended, revoked or canceled, shall issue a temporary license effective
94 until the 30th calendar day after the date of service set out in the law
95 enforcement officer's certification and notice of suspension. If the test
96 failure is established by a subsequent analysis of a breath or blood sample,
97 the temporary license shall be served together with the copy of the law
98 enforcement officer's certification and notice of suspension. A temporary
99 license issued pursuant to this subsection shall bear the same restrictions
100 and limitations as the license for which it was exchanged. Within five days
101 after the date of service of a copy of the law enforcement officer's certi-
102 fication and notice of suspension the officer's certification and notice of
103 suspension, along with any licenses taken, shall be forwarded to the
104 division.
105 (f) Upon receipt of the law enforcement officer's certification, the
106 division shall review the certification to determine that it meets the
107 requirements of subsection (a). Upon so determining, the division shall
108 proceed to suspend the person's driving privileges in accordance with the
109 notice of suspension previously served. If the requirements of subsection
110 (a) are not met, the division shall dismiss the administrative proceeding
111 and return any license surrendered by the person.
112 (g) If the person mails a written request which is postmarked within
113 10 days after service of the notice, if by personal service, or 13 days after
114 service, if by mail, the division shall schedule a hearing in the county
115 where the alleged violation occurred, or in a county adjacent thereto. The
116 licensee may request that subpoenas be issued in accordance with the
117 notice provided pursuant to subsection (d). Any request made by the
118 licensee to subpoena witnesses must be made in writing at the time the
119 hearing is requested and must include the name and current address of
120 such witnesses and, except for the law enforcement officer or officers
121 certifying refusal or failure, a statement of how the testimony of such
122 witness is relevant. Upon receiving a timely request for a hearing, the
123 division shall mail to the person notice of the time, date and place of
124 hearing in accordance with subsection (l) and extend the person's tem-
125 porary driving privileges until the date set for the hearing by the division.
126 (h) (1) If the officer certifies that the person refused the test, the
127 scope of the hearing shall be limited to whether: (A) A law enforcement
128 officer had reasonable grounds to believe the person was operating or
129 attempting to operate a vehicle while under the influence of alcohol or
130 drugs, or both, or to believe that the person had been driving a com-
131 mercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments
132 thereto, while having alcohol or other drugs in such person's system; (B)
133 the person was in custody or arrested for an alcohol or drug related of-
134 fense or was involved in a vehicle accident or collision resulting in prop-
135 erty damage, personal injury or death; (C) a law enforcement officer had
136 presented the person with the oral and written notice required by K.S.A.
137 8-1001, and amendments thereto; and (D) the person refused to submit
138 to and complete a test as requested by a law enforcement officer.
139 (2) If the officer certifies that the person failed the test, the scope of
140 the hearing shall be limited to whether: (A) A law enforcement officer
141 had reasonable grounds to believe the person was operating a vehicle
142 while under the influence of alcohol or drugs, or both, or to believe that
143 the person had been driving a commercial motor vehicle, as defined in
144 K.S.A. 8-2,128, and amendments thereto, while having alcohol or other
145 drugs in such person's system; (B) the person was in custody or arrested
146 for an alcohol or drug related offense or was involved in a vehicle accident
147 or collision resulting in property damage, personal injury or death; (C) a
148 law enforcement officer had presented the person with the oral and writ-
149 ten notice required by K.S.A. 8-1001, and amendments thereto; (D) the
150 testing equipment used was reliable; (E) the person who operated the
151 testing equipment was qualified; (F) the testing procedures used were
152 reliable; (G) the test result determined that the person had an alcohol
153 concentration of .08 or greater in such person's blood or breath; and (H)
154 the person was operating a vehicle.
155 (i) At a hearing pursuant to this section, or upon court review of an
156 order entered at such a hearing, an affidavit of the custodian of records
157 at the Kansas department of health and environment stating that the
158 breath testing device was certified and the operator of such device was
159 certified on the date of the test shall be admissible into evidence in the
160 same manner and with the same force and effect as if the certifying officer
161 or employee of the Kansas department of health and environment had
162 testified in person. Such affidavit shall be admitted to prove such relia-
163 bility without further foundation requirement. A certified operator of a
164 breath testing device shall be competent to testify regarding the proper
165 procedures to be used in conducting the test.
166 (j) At a hearing pursuant to this section, or upon court review of an
167 order entered at such hearing, in which the report of blood test results
168 have been prepared by the Kansas bureau of investigation or other fo-
169 rensic laboratory of a state or local law enforcement agency are to be
170 introduced as evidence, the report, or a copy of the report, of the findings
171 of the forensic examiner shall be admissible into evidence in the same
172 manner and with the same force and effect as if the forensic examiner
173 who performed such examination, analysis, comparison or identification
174 and prepared the report thereon had testified in person.
175 (k) If no timely request for hearing is made, the suspension period
176 imposed pursuant to this section shall begin upon the expiration of the
177 temporary license granted under subsection (e). If a timely request for
178 hearing is made, the hearing shall be held within 30 days of the date the
179 request for hearing is received by the division, except that failure to hold
180 such hearing within 30 days shall not be cause for dismissal absent a
181 showing of prejudice. At the hearing, the director or the representative
182 of the director, shall either affirm the order of suspension or suspension
183 and restriction or dismiss the administrative action. If the division is un-
184 able to hold a hearing within 30 days of the date upon which the request
185 for hearing is received, the division shall extend the person's temporary
186 driving privileges until the date set for the hearing by the division. No
187 extension of temporary driving privileges shall be issued for continuances
188 requested by or on behalf of the licensee. If the person whose privileges
189 are suspended is a nonresident licensee, the license of the person shall
190 be forwarded to the appropriate licensing authority in the person's state
191 of residence if the result at the hearing is adverse to such person or if no
192 timely request for a hearing is received.
193 (l) All notices affirming or canceling a suspension under this section,
194 all notices of a hearing held under this section and all issuances of tem-
195 porary driving privileges pursuant to subsection (k) shall be sent by first-
196 class mail and a U.S. post office certificate of mailing shall be obtained
197 therefor. All notices so mailed shall be deemed received three days after
198 mailing.
199 (m) The division shall prepare and distribute forms for use by law
200 enforcement officers in giving the notice required by this section.
201 (n) This section and the applicable provisions contained in subsec-
202 tions (d) and (e) of K.S.A. 8-255 and amendments thereto constitute the
203 administrative procedures to be used for all administrative hearings held
204 under this act. To the extent that this section and any other provision of
205 law conflicts, this section prevails.
206 (o) The provisions of K.S.A. 60-206 and amendments thereto regard-
207 ing the computation of time shall not be applicable in determining the
208 effective date of suspension set out in subsection (d) or the time for
209 requesting an administrative hearing set out in subsection (g). "Calendar
210 day" when used in this section shall mean that every day shall be included
211 in computations of time whether a week day, Saturday, Sunday or holiday.
212 Sec. 2. K.S.A. 1998 Supp. 8-1002 is hereby repealed.
213 Sec. 3. This act shall take effect and be in force from and after its
214 publication in the statute book.