As Amended by House Committee
As Amended by Senate Committee
Session of 1999
SENATE BILL No. 205
By Committee on Judiciary
2-2
11 AN ACT concerning healing arts; relating to licensure; convictions of
12 certain crimes; amending K.S.A. 1998 Supp. 12-4516, 21-4619 and
13 65-2836 and repealing the existing section sections.
14
15 Be it enacted by the Legislature of the State of Kansas:
16 Section 1. K.S.A. 1998 Supp. 65-2836 is hereby amended to read as
17 follows: 65-2836. A licensee's license may be revoked, suspended or lim-
18 ited, or the licensee may be publicly or privately censured, or an appli-
19 cation for a license, except in subsection (c)(1) where a person's applica-
20 tion for a license shall be denied, or for reinstatement of a license may be
21 denied upon a finding of the existence of any of the following grounds:
22 (a) The licensee has committed fraud or misrepresentation in apply-
23 ing for or securing an original, renewal or reinstated license.
24 (b) The licensee has committed an act of unprofessional or dishon-
25 orable conduct or professional incompetency.
26 (c) The licensee has been convicted of a felony or class A misde-
27 meanor, whether or not related to the practice of the healing arts, subject.
28 to the following: (1) In the case of a person with a felony conviction
29 described in K.S.A. 21-3401, subsection (a) of 21-3402, 21-3438, subsec-
30 tion (a)(1), (a)(3) or (a)(4) of 21-3502, 21-3503, 21-3504, 21-3505, 21-
31 3506, 21-3510, 21-3511, 21-3518 or 21-3609 and amendments thereto, an
32 application for original licensure on or after July 1, 1999, shall not be
33 granted; (2) in the case of a person with a felony conviction contained in
34 subsection (a)(1) who applies for renewal or reinstatement of a license
35 first granted prior to July 1, 1999, a license may be granted only pursuant
36 to the provisions of subsections (3)(A) and (3)(B); (3) in the case of a
37 person with any other felony conviction described in articles 34, 35 or 36
38 of chapter 21 of the Kansas Statutes Annotated and amendments thereto,
39
40 not be granted unless: (A) The board determines a 2/3 majority of the
41 board members present and voting on such application determine
42 by clear and convincing evidence that such person will not pose a
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1 threat to the public in such person's capacity as a licensee and that such
2 person has been sufficiently rehabilitated to warrant the public trust; and
3 (B) such person's application is approved by a two-thirds majority of the
4 board members present and voting on such application.
5 (d) The licensee has used fraudulent or false advertisements.
6 (e) The licensee is addicted to or has distributed intoxicating liquors
7 or drugs for any other than lawful purposes.
8 (f) The licensee has willfully or repeatedly violated this act, the phar-
9 macy act of the state of Kansas or the uniform controlled substances act,
10 or any rules and regulations adopted pursuant thereto, or any rules and
11 regulations of the secretary of health and environment which are relevant
12 to the practice of the healing arts.
13 (g) The licensee has unlawfully invaded the field of practice of any
14 branch of the healing arts in which the licensee is not licensed to practice.
15 (h) The licensee has engaged in the practice of the healing arts under
16 a false or assumed name, or the impersonation of another practitioner.
17 The provisions of this subsection relating to an assumed name shall not
18 apply to licensees practicing under a professional corporation or other
19 legal entity duly authorized to provide such professional services in the
20 state of Kansas.
21 (i) The licensee has the inability to practice the branch of the healing
22 arts for which the licensee is licensed with reasonable skill and safety to
23 patients by reason of illness, alcoholism, excessive use of drugs, controlled
24 substances, chemical or any other type of material or as a result of any
25 mental or physical condition. In determining whether or not such inability
26 exists, the board, upon reasonable suspicion of such inability, shall have
27 authority to compel a licensee to submit to mental or physical examination
28 or drug screen, or any combination thereof, by such persons as the board
29 may designate. To determine whether reasonable suspicion of such ina-
30 bility exists, the investigative information shall be presented to the board
31 as a whole, to a review committee of professional peers of the licensee
32 established pursuant to K.S.A. 65-2840c and amendments thereto or to
33 a committee consisting of the officers of the board elected pursuant to
34 K.S.A. 65-2818 and amendments thereto and the executive director ap-
35 pointed pursuant to K.S.A. 65-2878 and amendments thereto, and the
36 determination shall be made by a majority vote of the entity which re-
37 viewed the investigative information. Information submitted to the board
38 as a whole or a review committee of peers or a committee of the officers
39 and executive director of the board and all reports, findings and other
40 records shall be confidential and not subject to discovery by or release to
41 any person or entity. The licensee shall submit to the board a release of
42 information authorizing the board to obtain a report of such examination
43 or drug screen, or both. A person affected by this subsection shall be
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1 offered, at reasonable intervals, an opportunity to demonstrate that such
2 person can resume the competent practice of the healing arts with rea-
3 sonable skill and safety to patients. For the purpose of this subsection,
4 every person licensed to practice the healing arts and who shall accept
5 the privilege to practice the healing arts in this state by so practicing or
6 by the making and filing of an annual renewal to practice the healing arts
7 in this state shall be deemed to have consented to submit to a mental or
8 physical examination or a drug screen, or any combination thereof, when
9 directed in writing by the board and further to have waived all objections
10 to the admissibility of the testimony, drug screen or examination report
11 of the person conducting such examination or drug screen, or both, at
12 any proceeding or hearing before the board on the ground that such
13 testimony or examination or drug screen report constitutes a privileged
14 communication. In any proceeding by the board pursuant to the provi-
15 sions of this subsection, the record of such board proceedings involving
16 the mental and physical examination or drug screen, or any combination
17 thereof, shall not be used in any other administrative or judicial
18 proceeding.
19 (j) The licensee has had a license to practice the healing arts revoked,
20 suspended or limited, has been censured or has had other disciplinary
21 action taken, or an application for a license denied, by the proper licensing
22 authority of another state, territory, District of Columbia, or other coun-
23 try, a certified copy of the record of the action of the other jurisdiction
24 being conclusive evidence thereof.
25 (k) The licensee has violated any lawful rule and regulation promul-
26 gated by the board or violated any lawful order or directive of the board
27 previously entered by the board.
28 (l) The licensee has failed to report or reveal the knowledge required
29 to be reported or revealed under K.S.A. 65-28,122 and amendments
30 thereto.
31 (m) The licensee, if licensed to practice medicine and surgery, has
32 failed to inform a patient suffering from any form of abnormality of the
33 breast tissue for which surgery is a recommended form of treatment, of
34 alternative methods of treatment specified in the standardized summary
35 supplied by the board. The standardized summary shall be given to each
36 patient specified herein as soon as practicable and medically indicated
37 following diagnosis, and this shall constitute compliance with the require-
38 ments of this subsection. The board shall develop and distribute to per-
39 sons licensed to practice medicine and surgery a standardized summary
40 of the alternative methods of treatment known to the board at the time
41 of distribution of the standardized summary, including surgical, radiolog-
42 ical or chemotherapeutic treatments or combinations of treatments and
43 the risks associated with each of these methods. Nothing in this subsection
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1 shall be construed or operate to empower or authorize the board to re-
2 strict in any manner the right of a person licensed to practice medicine
3 and surgery to recommend a method of treatment or to restrict in any
4 manner a patient's right to select a method of treatment. The standard-
5 ized summary shall not be construed as a recommendation by the board
6 of any method of treatment. The preceding sentence or words having the
7 same meaning shall be printed as a part of the standardized summary.
8 The provisions of this subsection shall not be effective until the stan-
9 dardized written summary provided for in this subsection is developed
10 and printed and made available by the board to persons licensed by the
11 board to practice medicine and surgery.
12 (n) The licensee has cheated on or attempted to subvert the validity
13 of the examination for a license.
14 (o) The licensee has been found to be mentally ill, disabled, not guilty
15 by reason of insanity, not guilty because the licensee suffers from a mental
16 disease or defect or incompetent to stand trial by a court of competent
17 jurisdiction.
18 (p) The licensee has prescribed, sold, administered, distributed or
19 given a controlled substance to any person for other than medically ac-
20 cepted or lawful purposes.
21 (q) The licensee has violated a federal law or regulation relating to
22 controlled substances.
23 (r) The licensee has failed to furnish the board, or its investigators or
24 representatives, any information legally requested by the board.
25 (s) Sanctions or disciplinary actions have been taken against the li-
26 censee by a peer review committee, health care facility, a governmental
27 agency or department or a professional association or society for acts or
28 conduct similar to acts or conduct which would constitute grounds for
29 disciplinary action under this section.
30 (t) The licensee has failed to report to the board any adverse action
31 taken against the licensee by another state or licensing jurisdiction, a peer
32 review body, a health care facility, a professional association or society, a
33 governmental agency, by a law enforcement agency or a court for acts or
34 conduct similar to acts or conduct which would constitute grounds for
35 disciplinary action under this section.
36 (u) The licensee has surrendered a license or authorization to practice
37 the healing arts in another state or jurisdiction, has surrendered the au-
38 thority to utilize controlled substances issued by any state or federal
39 agency, has agreed to a limitation to or restriction of privileges at any
40 medical care facility or has surrendered the licensee's membership on any
41 professional staff or in any professional association or society while under
42 investigation for acts or conduct similar to acts or conduct which would
43 constitute grounds for disciplinary action under this section.
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1 (v) The licensee has failed to report to the board surrender of the
2 licensee's license or authorization to practice the healing arts in another
3 state or jurisdiction or surrender of the licensee's membership on any
4 professional staff or in any professional association or society while under
5 investigation for acts or conduct similar to acts or conduct which would
6 constitute grounds for disciplinary action under this section.
7 (w) The licensee has an adverse judgment, award or settlement
8 against the licensee resulting from a medical liability claim related to acts
9 or conduct similar to acts or conduct which would constitute grounds for
10 disciplinary action under this section.
11 (x) The licensee has failed to report to the board any adverse judg-
12 ment, settlement or award against the licensee resulting from a medical
13 malpractice liability claim related to acts or conduct similar to acts or
14 conduct which would constitute grounds for disciplinary action under this
15 section.
16 (y) The licensee has failed to maintain a policy of professional liability
17 insurance as required by K.S.A. 40-3402 or 40-3403a and amendments
18 thereto.
19 (z) The licensee has failed to pay the annual premium surcharge as
20 required by K.S.A. 40-3404 and amendments thereto.
21 (aa) The licensee has knowingly submitted any misleading, deceptive,
22 untrue or fraudulent representation on a claim form, bill or statement.
23 (bb) The licensee as the responsible physician for a physician's assis-
24 tant has failed to adequately direct and supervise the physician's assistant
25 in accordance with K.S.A. 65-2896 to 65-2897a, inclusive, and amend-
26 ments thereto, or rules and regulations adopted under such statutes.
27 (cc) The licensee has assisted suicide in violation of K.S.A. 21-3406
28 as established by any of the following:
29 (A) (1) A copy of the record of criminal conviction or plea of guilty
30 for a felony in violation of K.S.A. 21-3406 and amendments thereto.
31 (B) (2) A copy of the record of a judgment of contempt of court for
32 violating an injunction issued under K.S.A. 1998 Supp. 60-4404 and
33 amendments thereto.
34 (C) (3) A copy of the record of a judgment assessing damages under
35 K.S.A. 1998 Supp. 60-4405 and amendments thereto.
36 (dd) The licensee has failed to make a report as required pur-
37 suant to K.S.A. 38-1522, and amendments thereto.
38 Sec. 2. K.S.A. 1998 Supp. 12-4516 is hereby amended to read
39 as follows: 12-4516. (a) (1) Except as provided in subsection (b),
40 any person who has been convicted of a violation of a city ordi-
41 nance of this state may petition the convicting court for the
42 expungement of such conviction and related arrest records if three
43 or more years have elapsed since the person:
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1 (A) Satisfied the sentence imposed; or
2 (B) was discharged from probation, parole or a suspended
3 sentence.
4 (2) Except as provided in subsection (b), any person who has
5 fulfilled the terms of a diversion agreement based on a violation
6 of a city ordinance of this state may petition the court for the
7 expungement of such diversion agreement and related arrest re-
8 cords if three or more years have elapsed since the terms of the
9 diversion agreement were fulfilled.
10 (b) No person may petition for expungement until five or more
11 years have elapsed since the person satisfied the sentence imposed
12 or the terms of a diversion agreement or was discharged from pro-
13 bation, parole, conditional release or a suspended sentence, if such
14 person was convicted of the violation of a city ordinance which
15 would also constitute:
16 (1) Vehicular homicide, as defined by K.S.A. 21-3405, and
17 amendments thereto;
18 (2) a violation of K.S.A. 8-1567, and amendments thereto;
19 (3) driving while the privilege to operate a motor vehicle on
20 the public highways of this state has been canceled, suspended or
21 revoked, as prohibited by K.S.A. 8-262, and amendments thereto;
22 (4) perjury resulting from a violation of K.S.A. 8-261a, and
23 amendments thereto;
24 (5) a violation of the provisions of the fifth clause of K.S.A. 8-
25 142, and amendments thereto, relating to fraudulent applications;
26 (6) any crime punishable as a felony wherein a motor vehicle
27 was used in the perpetration of such crime;
28 (7) failing to stop at the scene of an accident and perform the
29 duties required by K.S.A. 8-1602, 8-1603 or 8-1604, and amend-
30 ments thereto;
31 (8) a violation of the provisions of K.S.A. 40-3104, and amend-
32 ments thereto, relating to motor vehicle liability insurance cover-
33 age; or
34 (9) a violation of K.S.A. 21-3405b, and amendments thereto.
35 (c) When a petition for expungement is filed, the court shall
36 set a date for a hearing of such petition and shall cause notice of
37 such hearing to be given to the prosecuting attorney and the ar-
38 resting law enforcement agency. The petition shall state: (1) The
39 defendant's full name;
40 (2) the full name of the defendant at the time of arrest, con-
41 viction or diversion, if different than the defendant's current
42 name;
43 (3) the defendant's sex, race and date of birth;
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1 (4) the crime for which the defendant was arrested, convicted
2 or diverted;
3 (5) the date of the defendant's arrest, conviction or diversion;
4 and
5 (6) the identity of the convicting court, arresting law enforce-
6 ment agency or diverting authority. A municipal court may pre-
7 scribe a fee to be charged as costs for a person petitioning for an
8 order of expungement pursuant to this section. Any person who
9 may have relevant information about the petitioner may testify at
10 the hearing. The court may inquire into the background of the
11 petitioner and shall have access to any reports or records relating
12 to the petitioner that are on file with the secretary of corrections
13 or the Kansas parole board.
14 (d) At the hearing on the petition, the court shall order the
15 petitioner's arrest record, conviction or diversion expunged if the
16 court finds that:
17 (1) The petitioner has not been convicted of a felony in the past
18 two years and no proceeding involving any such crime is presently
19 pending or being instituted against the petitioner;
20 (2) the circumstances and behavior of the petitioner warrant
21 the expungement; and
22 (3) the expungement is consistent with the public welfare.
23 (e) When the court has ordered an arrest record, conviction or
24 diversion expunged, the order of expungement shall state the in-
25 formation required to be contained in the petition. The clerk of
26 the court shall send a certified copy of the order of expungement
27 to the Kansas bureau of investigation which shall notify the federal
28 bureau of investigation, the secretary of corrections and any other
29 criminal justice agency which may have a record of the arrest,
30 conviction or diversion. After the order of expungement is entered,
31 the petitioner shall be treated as not having been arrested, con-
32 victed or diverted of the crime, except that:
33 (1) Upon conviction for any subsequent crime, the conviction
34 that was expunged may be considered as a prior conviction in de-
35 termining the sentence to be imposed;
36 (2) the petitioner shall disclose that the arrest, conviction or
37 diversion occurred if asked about previous arrests, convictions or
38 diversions:
39 (A) In any application for employment as a detective with a
40 private detective agency, as defined by K.S.A. 75-7b01, and
41 amendments thereto; as security personnel with a private patrol
42 operator, as defined by K.S.A. 75-7b01, and amendments thereto;
43 or with an institution, as defined in K.S.A. 76-12a01, and amend-
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1 ments thereto, of the department of social and rehabilitation
2 services;
3 (B) in any application for admission, or for an order of rein-
4 statement, to the practice of law in this state;
5 (C) to aid in determining the petitioner's qualifications for em-
6 ployment with the Kansas lottery or for work in sensitive areas
7 within the Kansas lottery as deemed appropriate by the executive
8 director of the Kansas lottery;
9 (D) to aid in determining the petitioner's qualifications for ex-
10 ecutive director of the Kansas racing commission, for employment
11 with the commission or for work in sensitive areas in parimutuel
12 racing as deemed appropriate by the executive director of the
13 commission, or to aid in determining qualifications for licensure
14 or renewal of licensure by the commission;
15 (E) upon application for a commercial driver's license under
16 K.S.A. 8-2,125 through 8-2,142, and amendments thereto;
17 (F) to aid in determining the petitioner's qualifications to be
18 an employee of the state gaming agency;
19 (G) to aid in determining the petitioner's qualifications to be
20 an employee of a tribal gaming commission or to hold a license
21 issued pursuant to a tribal-state gaming compact; or
22 (H) in any application for registration as a broker-dealer,
23 agent, investment adviser or investment adviser representative all
24 as defined in K.S.A. 17-1252 and amendments thereto; or
25 (I) in any application for an original, renewal, or reinstated license
26 or registration to practice any profession regulated by the state board of
27 healing arts.
28 (3) the court, in the order of expungement, may specify other
29 circumstances under which the arrest, conviction or diversion is to
30 be disclosed; and
31 (4) the conviction may be disclosed in a subsequent prosecu-
32 tion for an offense which requires as an element of such offense a
33 prior conviction of the type expunged.
34 (f) Whenever a person is convicted of an ordinance violation,
35 pleads guilty and pays a fine for such a violation, is placed on pa-
36 role or probation or is granted a suspended sentence for such a
37 violation, the person shall be informed of the ability to expunge
38 the arrest records or conviction. Whenever a person enters into a
39 diversion agreement, the person shall be informed of the ability
40 to expunge the diversion.
41 (g) Subject to the disclosures required pursuant to subsection
42 (e), in any application for employment, license or other civil right
43 or privilege, or any appearance as a witness, a person whose arrest
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1 records, conviction or diversion of an offense has been expunged
2 under this statute may state that such person has never been ar-
3 rested, convicted or diverted of such offense.
4 (h) Whenever the record of any arrest, conviction or diversion
5 has been expunged under the provisions of this section or under
6 the provisions of any other existing or former statute, the custodian
7 of the records of arrest, conviction, diversion and incarceration
8 relating to that crime shall not disclose the existence of such re-
9 cords, except when requested by:
10 (1) The person whose record was expunged;
11 (2) a private detective agency or a private patrol operator, and
12 the request is accompanied by a statement that the request is being
13 made in conjunction with an application for employment with such
14 agency or operator by the person whose record has been
15 expunged;
16 (3) a court, upon a showing of a subsequent conviction of the
17 person whose record has been expunged;
18 (4) the secretary of social and rehabilitation services, or a des-
19 ignee of the secretary, for the purpose of obtaining information
20 relating to employment in an institution, as defined in K.S.A. 76-
21 12a01, and amendments thereto, of the department of social and
22 rehabilitation services of any person whose record has been
23 expunged;
24 (5) a person entitled to such information pursuant to the terms
25 of the expungement order;
26 (6) a prosecuting attorney, and such request is accompanied by
27 a statement that the request is being made in conjunction with a
28 prosecution of an offense that requires a prior conviction as one
29 of the elements of such offense;
30 (7) the supreme court, the clerk or disciplinary administrator
31 thereof, the state board for admission of attorneys or the state
32 board for discipline of attorneys, and the request is accompanied
33 by a statement that the request is being made in conjunction with
34 an application for admission, or for an order of reinstatement, to
35 the practice of law in this state by the person whose record has
36 been expunged;
37 (8) the Kansas lottery, and the request is accompanied by a
38 statement that the request is being made to aid in determining
39 qualifications for employment with the Kansas lottery or for work
40 in sensitive areas within the Kansas lottery as deemed appropriate
41 by the executive director of the Kansas lottery;
42 (9) the governor or the Kansas racing commission, or a desig-
43 nee of the commission, and the request is accompanied by a state-
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1 ment that the request is being made to aid in determining quali-
2 fications for executive director of the commission, for employment
3 with the commission, for work in sensitive areas in parimutuel rac-
4 ing as deemed appropriate by the executive director of the com-
5 mission or for licensure, renewal of licensure or continued licen-
6 sure by the commission;
7 (10) the state gaming agency, and the request is accompanied
8 by a statement that the request is being made to aid in determining
9 qualifications: (A) To be an employee of the state gaming agency;
10 or (B) to be an employee of a tribal gaming commission or to hold
11 a license issued pursuant to a tribal-state gaming compact; or
12 (11) the Kansas securities commissioner, or a designee of the
13 commissioner, and the request is accompanied by a statement that
14 the request is being made in conjunction with an application for
15 registration as a broker-dealer, agent, investment adviser or in-
16 vestment adviser representative by such agency and the applica-
17 tion was submitted by the person whose record has been ex-
18 punged.; or
19 (12) the state board of healing arts, and the request is accompanied
20 by a statement that the request is made to determine licensure or regis-
21 tration qualifications to practice any profession regulated by the board.
22 Sec. 3. K.S.A. 1998 Supp. 21-4619 is hereby amended to read
23 as follows: 21-4619. (a) (1) Except as provided in subsections (b)
24 and (c), any person convicted in this state of a traffic infraction,
25 cigarette or tobacco infraction, misdemeanor or a class D or E
26 felony, or for crimes committed on or after July 1, 1993, nondrug
27 crimes ranked in severity levels 6 through 10 or any felony ranked
28 in severity level 4 of the drug grid, may petition the convicting
29 court for the expungement of such conviction or related arrest
30 records if three or more years have elapsed since the person: (A)
31 Satisfied the sentence imposed; or (B) was discharged from pro-
32 bation, a community correctional services program, parole, post-
33 release supervision, conditional release or a suspended sentence.
34 (2) Except as provided in subsections (b) and (c), any person
35 who has fulfilled the terms of a diversion agreement may petition
36 the district court for the expungement of such diversion agree-
37 ment and related arrest records if three or more years have
38 elapsed since the terms of the diversion agreement were fulfilled.
39 (b) Except as provided in subsection (c), no person may petition
40 for expungement until five or more years have elapsed since the
41 person satisfied the sentence imposed, the terms of a diversion
42 agreement or was discharged from probation, a community cor-
43 rectional services program, parole, postrelease supervision, con-
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1 ditional release or a suspended sentence, if such person was con-
2 victed of a class A, B or C felony, or for crimes committed on or
3 after July 1, 1993, if convicted of an off-grid felony or any nondrug
4 crime ranked in severity levels 1 through 5 or any felony ranked
5 in severity levels 1 through 3 of the drug grid, or:
6 (1) Vehicular homicide, as defined by K.S.A. 21-3405 and
7 amendments thereto or as prohibited by any law of another state
8 which is in substantial conformity with that statute;
9 (2) a violation of K.S.A. 8-1567 and amendments thereto, or a
10 violation of any law of another state, which declares to be unlawful
11 the acts prohibited by that statute;
12 (3) driving while the privilege to operate a motor vehicle on
13 the public highways of this state has been canceled, suspended or
14 revoked, as prohibited by K.S.A. 8-262 and amendments thereto
15 or as prohibited by any law of another state which is in substantial
16 conformity with that statute;
17 (4) perjury resulting from a violation of K.S.A. 8-261a and
18 amendments thereto or resulting from the violation of a law of
19 another state which is in substantial conformity with that statute;
20 (5) violating the provisions of the fifth clause of K.S.A. 8-142
21 and amendments thereto, relating to fraudulent applications or
22 violating the provisions of a law of another state which is in sub-
23 stantial conformity with that statute;
24 (6) any crime punishable as a felony wherein a motor vehicle
25 was used in the perpetration of such crime;
26 (7) failing to stop at the scene of an accident and perform the
27 duties required by K.S.A. 8-1602, 8-1603 or 8-1604, and amend-
28 ments thereto, or required by a law of another state which is in
29 substantial conformity with those statutes;
30 (8) violating the provisions of K.S.A. 40-3104 and amendments
31 thereto, relating to motor vehicle liability insurance coverage; or
32 (9) a violation of K.S.A. 21-3405b, prior to its repeal.
33 (c) There shall be no expungement of convictions for the fol-
34 lowing offenses or of convictions for an attempt to commit any of
35 the following offenses: (1) Rape as defined in subsection (a)(2) of
36 K.S.A. 21-3502 and amendments thereto; (2) indecent liberties
37 with a child as defined in K.S.A. 21-3503 and amendments thereto;
38 (3) aggravated indecent liberties with a child as defined in K.S.A.
39 21-3504 and amendments thereto; (4) criminal sodomy as defined
40 in subsection (a)(2) or (a)(3) of K.S.A. 21-3505 and amendments
41 thereto; (5) aggravated criminal sodomy as defined in K.S.A. 21-
42 3506 and amendments thereto; (6) indecent solicitation of a child
43 as defined in K.S.A. 21-3510 and amendments thereto; (7) aggra-
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1 vated indecent solicitation of a child as defined in K.S.A. 21-3511
2 and amendments thereto; (8) sexual exploitation of a child as de-
3 fined in K.S.A. 21-3516 and amendments thereto; (9) aggravated
4 incest as defined in K.S.A. 21-3603 and amendments thereto; (10)
5 endangering a child as defined in K.S.A. 21-3608 and amendments
6 thereto; (11) abuse of a child as defined in K.S.A. 21-3609 and
7 amendments thereto; (12) capital murder as defined in K.S.A. 21-
8 3439 and amendments thereto; (13) murder in the first degree as
9 defined in K.S.A. 21-3401 and amendments thereto; (14) murder
10 in the second degree as defined in K.S.A. 21-3402 and amendments
11 thereto; (15) voluntary manslaughter as defined in K.S.A. 21-3403
12 and amendments thereto; (16) involuntary manslaughter as de-
13 fined in K.S.A. 21-3404 and amendments thereto; (17) involuntary
14 manslaughter while driving under the influence of alcohol or
15 drugs as defined in K.S.A. 21-3442 and amendments thereto; or
16 (18) any conviction for any offense in effect at any time prior to
17 the effective date of this act, that is comparable to any offense as
18 provided in this subsection.
19 (d) When a petition for expungement is filed, the court shall
20 set a date for a hearing of such petition and shall cause notice of
21 such hearing to be given to the prosecuting attorney and the ar-
22 resting law enforcement agency. The petition shall state: (1) The
23 defendant's full name;
24 (2) the full name of the defendant at the time of arrest, con-
25 viction or diversion, if different than the defendant's current
26 name;
27 (3) the defendant's sex, race and date of birth;
28 (4) the crime for which the defendant was arrested, convicted
29 or diverted;
30 (5) the date of the defendant's arrest, conviction or diversion;
31 and
32 (6) the identity of the convicting court, arresting law enforce-
33 ment authority or diverting authority. There shall be no docket fee
34 for filing a petition pursuant to this section. All petitions for
35 expungement shall be docketed in the original criminal action. Any
36 person who may have relevant information about the petitioner
37 may testify at the hearing. The court may inquire into the back-
38 ground of the petitioner and shall have access to any reports or
39 records relating to the petitioner that are on file with the secretary
40 of corrections or the Kansas parole board.
41 (e) At the hearing on the petition, the court shall order the
42 petitioner's arrest record, conviction or diversion expunged if the
43 court finds that:
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1 (1) The petitioner has not been convicted of a felony in the past
2 two years and no proceeding involving any such crime is presently
3 pending or being instituted against the petitioner;
4 (2) the circumstances and behavior of the petitioner warrant
5 the expungement; and
6 (3) the expungement is consistent with the public welfare.
7 (f) When the court has ordered an arrest record, conviction or
8 diversion expunged, the order of expungement shall state the in-
9 formation required to be contained in the petition. The clerk of
10 the court shall send a certified copy of the order of expungement
11 to the Kansas bureau of investigation which shall notify the federal
12 bureau of investigation, the secretary of corrections and any other
13 criminal justice agency which may have a record of the arrest,
14 conviction or diversion. After the order of expungement is entered,
15 the petitioner shall be treated as not having been arrested, con-
16 victed or diverted of the crime, except that:
17 (1) Upon conviction for any subsequent crime, the conviction
18 that was expunged may be considered as a prior conviction in de-
19 termining the sentence to be imposed;
20 (2) the petitioner shall disclose that the arrest, conviction or
21 diversion occurred if asked about previous arrests, convictions or
22 diversions: (A) In any application for employment as a detective
23 with a private detective agency, as defined by K.S.A. 75-7b01 and
24 amendments thereto; as security personnel with a private patrol
25 operator, as defined by K.S.A. 75-7b01 and amendments thereto;
26 or with an institution, as defined in K.S.A. 76-12a01 and amend-
27 ments thereto, of the department of social and rehabilitation
28 services;
29 (B) in any application for admission, or for an order of rein-
30 statement, to the practice of law in this state;
31 (C) to aid in determining the petitioner's qualifications for em-
32 ployment with the Kansas lottery or for work in sensitive areas
33 within the Kansas lottery as deemed appropriate by the executive
34 director of the Kansas lottery;
35 (D) to aid in determining the petitioner's qualifications for ex-
36 ecutive director of the Kansas racing commission, for employment
37 with the commission or for work in sensitive areas in parimutuel
38 racing as deemed appropriate by the executive director of the
39 commission, or to aid in determining qualifications for licensure
40 or renewal of licensure by the commission;
41 (E) upon application for a commercial driver's license under
42 K.S.A. 8-2,125 through 8-2,142, and amendments thereto;
43 (F) to aid in determining the petitioner's qualifications to be
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1 an employee of the state gaming agency;
2 (G) to aid in determining the petitioner's qualifications to be
3 an employee of a tribal gaming commission or to hold a license
4 issued pursuant to a tribal-state gaming compact; or
5 (H) in any application for registration as a broker-dealer,
6 agent, investment adviser or investment adviser representative all
7 as defined in K.S.A. 17-1252 and amendments thereto; or
8 (I) in any application for an original, renewal, or reinstated license
9 or registration to practice any profession regulated by the state board of
10 healing arts.
11 (3) the court, in the order of expungement, may specify other
12 circumstances under which the conviction is to be disclosed;
13 (4) the conviction may be disclosed in a subsequent prosecu-
14 tion for an offense which requires as an element of such offense a
15 prior conviction of the type expunged; and
16 (5) upon commitment to the custody of the secretary of cor-
17 rections, any previously expunged record in the possession of the
18 secretary of corrections may be reinstated and the expungement
19 disregarded, and the record continued for the purpose of the new
20 commitment.
21 (g) Whenever a person is convicted of a crime, pleads guilty
22 and pays a fine for a crime, is placed on parole, postrelease su-
23 pervision or probation, is assigned to a community correctional
24 services program, is granted a suspended sentence or is released
25 on conditional release, the person shall be informed of the ability
26 to expunge the arrest records or conviction. Whenever a person
27 enters into a diversion agreement, the person shall be informed of
28 the ability to expunge the diversion.
29 (h) Subject to the disclosures required pursuant to subsection
30 (f), in any application for employment, license or other civil right
31 or privilege, or any appearance as a witness, a person whose arrest
32 records, conviction or diversion of a crime has been expunged un-
33 der this statute may state that such person has never been arrested,
34 convicted or diverted of such crime, but the expungement of a
35 felony conviction does not relieve an individual of complying with
36 any state or federal law relating to the use or possession of firearms
37 by persons convicted of a felony.
38 (i) Whenever the record of any arrest, conviction or diversion
39 has been expunged under the provisions of this section or under
40 the provisions of any other existing or former statute, the custodian
41 of the records of arrest, conviction, diversion and incarceration
42 relating to that crime shall not disclose the existence of such re-
43 cords, except when requested by:
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1 (1) The person whose record was expunged;
2 (2) a private detective agency or a private patrol operator, and
3 the request is accompanied by a statement that the request is being
4 made in conjunction with an application for employment with such
5 agency or operator by the person whose record has been
6 expunged;
7 (3) a court, upon a showing of a subsequent conviction of the
8 person whose record has been expunged;
9 (4) the secretary of social and rehabilitation services, or a des-
10 ignee of the secretary, for the purpose of obtaining information
11 relating to employment in an institution, as defined in K.S.A. 76-
12 12a01 and amendments thereto, of the department of social and
13 rehabilitation services of any person whose record has been
14 expunged;
15 (5) a person entitled to such information pursuant to the terms
16 of the expungement order;
17 (6) a prosecuting attorney, and such request is accompanied by
18 a statement that the request is being made in conjunction with a
19 prosecution of an offense that requires a prior conviction as one
20 of the elements of such offense;
21 (7) the supreme court, the clerk or disciplinary administrator
22 thereof, the state board for admission of attorneys or the state
23 board for discipline of attorneys, and the request is accompanied
24 by a statement that the request is being made in conjunction with
25 an application for admission, or for an order of reinstatement, to
26 the practice of law in this state by the person whose record has
27 been expunged;
28 (8) the Kansas lottery, and the request is accompanied by a
29 statement that the request is being made to aid in determining
30 qualifications for employment with the Kansas lottery or for work
31 in sensitive areas within the Kansas lottery as deemed appropriate
32 by the executive director of the Kansas lottery;
33 (9) the governor or the Kansas racing commission, or a desig-
34 nee of the commission, and the request is accompanied by a state-
35 ment that the request is being made to aid in determining quali-
36 fications for executive director of the commission, for employment
37 with the commission, for work in sensitive areas in parimutuel rac-
38 ing as deemed appropriate by the executive director of the com-
39 mission or for licensure, renewal of licensure or continued licen-
40 sure by the commission;
41 (10) the Kansas sentencing commission;
42 (11) the state gaming agency, and the request is accompanied
43 by a statement that the request is being made to aid in determining
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1 qualifications: (A) To be an employee of the state gaming agency;
2 or (B) to be an employee of a tribal gaming commission or to hold
3 a license issued pursuant to a tribal-gaming compact; or
4 (12) the Kansas securities commissioner or a designee of the
5 commissioner, and the request is accompanied by a statement that
6 the request is being made in conjunction with an application for
7 registration as a broker-dealer, agent, investment adviser or in-
8 vestment adviser representative by such agency and the applica-
9 tion was submitted by the person whose record has been ex-
10 punged.; or
11 (13) the state board of healing arts, and the request is accompanied
12 by a statement that the request is made to determine licensure or regis-
13 tration qualifications to practice any profession regulated by the board.
14 Sec. 2. 4. K.S.A. 1998 Supp. 12-4516, 21-4619 and 65-2836 is are
15 hereby repealed.
16 Sec. 3. 5. This act shall take effect and be in force from and after its
17 publication in the statute book.