Session of 1999
         
SENATE BILL No. 314
         
By Committee on Judiciary
          
2-12
          
  9             AN  ACT concerning crimes, criminal procedure and punishment; relat-
10             ing to prosecuting persons who are 16 or more years of age as adults;
11             amending K.S.A. 8-254, 12-4419, 21-4717, 22-2909, 38-134, 38-501,
12             38-523, 38-528 and 38-541 and K.S.A. 1998 Supp. 8-2117, 12-4509,
13             21-3612, 21-4502, 21-4716, 38-1602, 38-1609, 38-1611, 38-1624, 38-
14             1626, 38-1636, 38-1676, 41-727, 65-4155, 65-4159, 65-4161 and 65-
15             4163 and repealing the existing sections; also repealing K.S.A. 1998
16             Supp. 38-1602a.
17      
18       Be it enacted by the Legislature of the State of Kansas:
19             Section  1. K.S.A. 8-254 is hereby amended to read as follows: 8-254.
20       (a) Subject to the provisions of subsection (b), the division shall revoke a
21       person's driving privileges upon receiving a record of the person's con-
22       viction of any of the following offenses, including municipal violations,
23       when the conviction has become final, or upon receiving a record of a
24       person's adjudication as a juvenile offender for commission of an act
25       which, if committed by a person 18 16 or more years of age, would con-
26       stitute any of the following offenses when the adjudication has become
27       final:
28             (1) Aggravated vehicular homicide, as defined by K.S.A. 21-3405a,
29       and amendments thereto, if the crime is committed while committing a
30       violation of K.S.A. 8-1566 or 8-1568, and amendments thereto, or the
31       ordinance of a city or resolution of a county which prohibits any acts
32       prohibited by those statutes;
33             (2) vehicular homicide, as defined by K.S.A. 21-3405, and amend-
34       ments thereto;
35             (3) vehicular battery, as defined by K.S.A. 21-3405b, and amend-
36       ments thereto, if the crime is committed while committing a violation of
37       K.S.A. 8-1566 or 8-1568, and amendments thereto, or the ordinance of
38       a city or resolution of a county which prohibits the acts prohibited by
39       those statutes;
40             (4) failure to stop and render aid as required under the laws of this
41       state in the event of a motor vehicle accident resulting in the death or
42       personal injury of another;
43             (5) conviction, or forfeiture of bail not vacated, upon a charge of

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  1       reckless driving;
  2             (6) conviction, or forfeiture of bail not vacated of any felony in the
  3       commission of which a motor vehicle is used; or
  4             (7) fleeing or attempting to elude a police officer as provided in
  5       K.S.A. 8-1568, and amendments thereto, or conviction of violation of an
  6       ordinance of any city or a law of another state which is in substantial
  7       conformity with such statute.
  8             (b) In lieu of revoking a person's driving privileges as provided by
  9       subsection (a), the court in which the person is convicted or adjudicated
10       may place restrictions on the person's driving privileges as provided by
11       K.S.A. 8-292, and amendments thereto, unless the violation was com-
12       mitted while operating a commercial motor vehicle, as defined in K.S.A.
13       8-2,128 and amendments thereto. Driving privileges are to be automati-
14       cally revoked if the violation which leads to the subsequent conviction
15       occurs in a commercial motor vehicle, as defined in K.S.A. 8-2,128 and
16       amendments thereto.
17             Sec.  2. K.S.A. 1998 Supp. 8-2117 is hereby amended to read as fol-
18       lows: 8-2117. (a) Subject to the provisions of this section, a court of com-
19       petent jurisdiction may hear prosecutions of traffic offenses involving any
20       child 14 or more years of age but less than 18 16 years of age. The court
21       hearing the prosecution may impose any fine authorized by law for a
22       traffic offense, including a violation of K.S.A. 8-1567 and amendments
23       thereto, and may order that the child be placed in a juvenile detention
24       facility, as defined by K.S.A. 38-1602 and amendments thereto, for not
25       more than 10 days. If the child is less than 18 16 years of age, the child
26       shall not be incarcerated in a jail as defined by K.S.A. 38-1602 and amend-
27       ments thereto. If the statute under which the child is convicted requires
28       a revocation or suspension of driving privileges, the court shall revoke or
29       suspend such privileges in accordance with that statute. Otherwise, the
30       court may suspend the license of any person who is convicted of a traffic
31       offense and who was under 18 16 years of age at the time of commission
32       of the offense. Suspension of a license shall be for a period not exceeding
33       one year, as ordered by the court. Upon suspending any license pursuant
34       to this section, the court shall require that the license be surrendered to
35       the court and shall transmit the license to the division of vehicles with a
36       copy of the court order showing the time for which the license is sus-
37       pended. The court may modify the time for which the license is sus-
38       pended, in which case it shall notify the division of vehicles in writing of
39       the modification. After the time period has passed for which the license
40       is suspended, the division of vehicles shall issue an appropriate license to
41       the person whose license had been suspended, upon successful comple-
42       tion of the examination required by K.S.A. 8-241 and amendments
43       thereto and upon proper application and payment of the required fee

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  1       unless the child's driving privileges have been revoked, suspended or
  2       canceled for another cause and the revocation, suspension or cancellation
  3       has not expired.
  4             (b) Instead of suspending a driver's license pursuant to this section,
  5       the court may place restrictions on the child's driver's privileges pursuant
  6       to K.S.A. 8-292 and amendments thereto.
  7             (c) Instead of the penalties provided in subsections (a) and (b), the
  8       court may place the child under a house arrest program, pursuant to
  9       K.S.A. 21-4603b, and amendments thereto, and sentence the child to the
10       same sentence as an adult traffic offender under K.S.A. 8-2116, and
11       amendments thereto.
12             (d) As used in this section, "traffic offense" means a violation of the
13       uniform act regulating traffic on highways and a violation of articles 1 and
14       2 of chapter 8 of the Kansas Statutes Annotated. Traffic offenses shall
15       include a violation of a city ordinance or county resolution which prohibits
16       acts which would constitute a violation of the uniform act regulating traffic
17       on highways or a violation of articles 1 and 2 of chapter 8 of the Kansas
18       Statutes Annotated, and any violation of a city ordinance or county res-
19       olution which prohibits acts which are not violations of state laws and
20       which relate to the regulation of traffic on the roads, highways or streets
21       or the operation of self-propelled or nonself-propelled vehicles of any
22       kind.
23             Sec.  3. K.S.A. 12-4419 is hereby amended to read as follows: 12-
24       4419. (a) Except as provided in subsection (b), if a diversion agreement
25       between a city attorney and a defendant is entered into in lieu of further
26       criminal proceedings alleging a violation by the defendant, while under
27       21 years of age, of an ordinance prohibiting an act prohibited by the
28       uniform substances act (K.S.A. 65-4101 et seq. and amendments thereto)
29       or K.S.A. 41-719, 41-727, 41-804, 41-2719, 41-2720, 65-4152, 65-4153,
30       65-4154 or 65-4155, and amendments thereto, the agreement shall re-
31       quire the defendant to submit to and complete an alcohol and drug eval-
32       uation by a community-based alcohol and drug safety action program
33       certified pursuant to K.S.A. 8-1008 and amendments thereto and to pay
34       a fee not to exceed the fee established by that statute for such evaluation.
35       If the city attorney finds that the defendant is indigent, the fee may be
36       waived.
37             (b) If the defendant is 18 16 or more years of age but less than 21 years
38       of age and allegedly committed a violation of K.S.A. 41-727, and amend-
39       ments thereto, involving cereal malt beverage, the provisions of subsec-
40       tion (a) are permissive and not mandatory.
41             Sec.  4. K.S.A. 1998 Supp. 12-4509 is hereby amended to read as
42       follows: 12-4509. (a) Whenever a person is found guilty of the violation
43       of an ordinance, the municipal judge may:

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  1             (1) Release the person without imposition of sentence;
  2             (2) release the person on probation after the imposition of sentence,
  3       without imprisonment or the payment of a fine or a portion thereof,
  4       subject to conditions imposed by the court as provided in subsection (e);
  5       or
  6             (3) impose such sentence of fine or imprisonment, or both, as au-
  7       thorized for the ordinance violation.
  8             (b) In addition to or in lieu of any other sentence authorized by law,
  9       whenever a person is found guilty of the violation of an ordinance and
10       there is evidence that the act constituting the violation of the ordinance
11       was substantially related to the possession, use or ingestion of cereal malt
12       beverage or alcoholic liquor by such person, the judge may order such
13       person to attend and satisfactorily complete an alcohol or drug education
14       or training program certified by the administrative judge of the judicial
15       district or licensed by the secretary of social and rehabilitation services.
16             (c) Except as provided in subsection (d), in addition to or in lieu of
17       any other sentence authorized by law, whenever a person is convicted of
18       having violated, while under 21 years of age, an ordinance prohibiting an
19       act prohibited by the uniform controlled substances act (K.S.A. 65-4101
20       et seq. and amendments thereto) or K.S.A. 41-719, 41-727, 65-4152, 65-
21       4153, 65-4154 or 65-4155 or K.S.A. 1998 Supp. 8-1599, and amendments
22       thereto, the municipal judge shall order such person to submit to and
23       complete an alcohol and drug evaluation by a community-based alcohol
24       and drug safety action program certified pursuant to K.S.A. 8-1008 and
25       amendments thereto and to pay a fee not to exceed the fee established
26       by that statute for such evaluation. If the judge finds that the person is
27       indigent, the fee may be waived.
28             (d) If the person is 18 16 or more years of age but less than 21 years
29       of age and is convicted of a violation of K.S.A. 41-727, and amendments
30       thereto, involving cereal malt beverage, the provisions of subsection (c)
31       are permissive and not mandatory.
32             (e) The court may impose any conditions of probation or suspension
33       of sentence that the court deems proper, including, but not limited to,
34       requiring that the defendant:
35             (1) Avoid such injurious or vicious habits, as directed by the court or
36       the probation officer;
37             (2) avoid such persons or places of disreputable or harmful character,
38       as directed by the court or the probation officer;
39             (3) report to the probation officer as directed;
40             (4) permit the probation officer to visit the defendant at home or
41       elsewhere;
42             (5) work faithfully at suitable employment insofar as possible;
43             (6) remain within the state unless the court grants permission to

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  1       leave;
  2             (7) pay a fine or costs, applicable to the ordinance violation, in one
  3       or several sums and in the manner as directed by the court;
  4             (8) support the defendant's dependents;
  5             (9) reside in a residential facility located in the community and par-
  6       ticipate in educational counseling, work and other correctional or reha-
  7       bilitative programs;
  8             (10) perform community or public service work for local govern-
  9       mental agencies, private corporations organized not for profit, or chari-
10       table or social service organizations performing services for the
11       community;
12             (11) perform services under a system of day fines whereby the de-
13       fendant is required to satisfy fines, costs or reparation or restitution ob-
14       ligations by performing services for a period of days determined by the
15       court on the basis of ability to pay, standard of living, support obligations
16       and other factors;
17             (12) make reparation or restitution to the aggrieved party for the
18       damage or loss caused by the defendant's crime, in an amount and man-
19       ner determined by the court and to the person specified by the court; or
20             (13) reimburse the city, in accordance with any order made under
21       subsection (f), for all or a part of the reasonable expenditures by the city
22       to provide counsel and other defense services to the defendant.
23             (f) In addition to or in lieu of any other sentence authorized by law,
24       whenever a person is found guilty of the violation of an ordinance the
25       judge may order such person to reimburse the city for all or a part of the
26       reasonable expenditures by the city to provide counsel and other defense
27       services to the defendant. In determining the amount and method of
28       payment of such sum, the court shall take account of the financial re-
29       sources of the defendant and the nature of the burden that payment of
30       such sum will impose. A defendant who has been required to pay such
31       sum and who is not willfully in default in the payment thereof may at any
32       time petition the court which sentenced the defendant to waive payment
33       of such sum or of any unpaid portion thereof. If it appears to the satis-
34       faction of the court that payment of the amount due will impose manifest
35       hardship on the defendant or the defendant's immediate family, the court
36       may waive payment of all or part of the amount due or modify the method
37       of payment.
38             Sec.  5. K.S.A. 1998 Supp. 21-3612 is hereby amended to read as
39       follows: 21-3612. (a) Contributing to a child's misconduct or deprivation
40       is:
41             (1) Causing or encouraging a child under 18 years of age to become
42       or remain a child in need of care as defined by the Kansas code for care
43       of children;

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  1             (2) causing or encouraging a child under 18 16 years of age to commit
  2       a traffic infraction or an act which, if committed by an adult, would be a
  3       misdemeanor or to violate the provisions of K.S.A. 41-727 or subsection
  4       (j) of K.S.A. 74-8810 and amendments thereto;
  5             (3) failure to reveal, upon inquiry by a uniformed or properly iden-
  6       tified law enforcement officer engaged in the performance of such offi-
  7       cer's duty, any information one has regarding a runaway, with intent to
  8       aid the runaway in avoiding detection or apprehension;
  9             (4) sheltering or concealing a runaway with intent to aid the runaway
10       in avoiding detection or apprehension by law enforcement officers;
11             (5) causing or encouraging a child under 18 years of age to commit
12       an act which, if committed by an adult, would be a felony; or
13             (6) causing or encouraging a child to violate the terms or conditions
14       of the child's probation or conditional release pursuant to subsection
15       (a)(1) of K.S.A. 38-1663, and amendments thereto.
16             Contributing to a child's misconduct or deprivation as described in
17       subsection (a)(1), (2), (3) or (6) is a class A nonperson misdemeanor.
18       Contributing to a child's misconduct or deprivation as described in sub-
19       section (a)(4) is a severity level 8, person felony. Contributing to a child's
20       misconduct or deprivation as described in subsection (a)(5) is a severity
21       level 7, person felony.
22             (b) A person may be found guilty of contributing to a child's miscon-
23       duct or deprivation even though no prosecution of the child whose mis-
24       conduct or deprivation the defendant caused or encouraged has been
25       commenced pursuant to the Kansas code for care of children, Kansas
26       juvenile justice code or Kansas criminal code.
27             (c) As used in this section, "runaway" means a child under 18 years
28       of age who is willfully and voluntarily absent from:
29             (1) The child's home without the consent of the child's parent or
30       other custodian; or
31             (2) a court ordered or designated placement, or a placement pursuant
32       to court order, if the absence is without the consent of the person with
33       whom the child is placed or, if the child is placed in a facility, without
34       the consent of the person in charge of such facility or such person's
35       designee.
36             (d) This section shall be part of and supplemental to the Kansas crim-
37       inal code.
38             Sec.  6. K.S.A. 1998 Supp. 21-4502 is hereby amended to read as
39       follows: 21-4502. (1) For the purpose of sentencing, the following classes
40       of misdemeanors and the punishment and the terms of confinement au-
41       thorized for each class are established:
42             (a) Class A, the sentence for which shall be a definite term of con-
43       finement in the county jail which shall be fixed by the court and shall not

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  1       exceed one year.
  2             (b) Class B, the sentence for which shall be a definite term of con-
  3       finement in the county jail which shall be fixed by the court and shall not
  4       exceed six months.
  5             (c) Class C, the sentence for which shall be a definite term of con-
  6       finement in the county jail which shall be fixed by the court and shall not
  7       exceed one month.
  8             (d) Unclassified misdemeanors, which shall include all crimes de-
  9       clared to be misdemeanors without specification as to class, the sentence
10       for which shall be in accordance with the sentence specified in the statute
11       that defines the crime; if no penalty is provided in such law, the sentence
12       shall be the same penalty as provided herein for a class C misdemeanor.
13             (2) Upon conviction of a misdemeanor, a person may be punished by
14       a fine, as provided in K.S.A. 21-4503 and amendments thereto, instead
15       of or in addition to confinement, as provided in this section.
16             (3) In addition to or in lieu of any other sentence authorized by law,
17       whenever there is evidence that the act constituting the misdemeanor
18       was substantially related to the possession, use or ingestion of cereal malt
19       beverage or alcoholic liquor by such person, the court may order such
20       person to attend and satisfactorily complete an alcohol or drug education
21       or training program certified by the administrative judge of the judicial
22       district or licensed by the secretary of social and rehabilitation services.
23             (4) Except as provided in subsection (5), in addition to or in lieu of
24       any other sentence authorized by law, whenever a person is convicted of
25       having committed, while under 21 years of age, a misdemeanor under
26       the uniform controlled substances act (K.S.A. 65-4101 et seq. and amend-
27       ments thereto), K.S.A. 41-719, 41-727, 65-4152, 65-4153, 65-4154 or 65-
28       4155 or K.S.A. 1998 Supp. 8-1599, and amendments thereto, the court
29       shall order such person to submit to and complete an alcohol and drug
30       evaluation by a community-based alcohol and drug safety action program
31       certified pursuant to K.S.A. 8-1008 and amendments thereto and to pay
32       a fee not to exceed the fee established by that statute for such evaluation.
33       If the court finds that the person is indigent, the fee may be waived.
34             (5) If the person is 18 16 or more years of age but less than 21 years
35       of age and is convicted of a violation of K.S.A. 41-727, and amendments
36       thereto, involving cereal malt beverage, the provisions of subsection (4)
37       are permissive and not mandatory.
38             Sec.  7. K.S.A. 1998 Supp. 21-4716 is hereby amended to read as
39       follows: 21-4716. (a) The sentencing judge shall impose the presumptive
40       sentence provided by the sentencing guidelines for crimes committed on
41       or after July 1, 1993, unless the judge finds substantial and compelling
42       reasons to impose a departure. If the sentencing judge departs from the
43       presumptive sentence, the judge shall state on the record at the time of

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  1       sentencing the substantial and compelling reasons for the departure.
  2             (b)  (1) Subject to the provisions of subsection (b)(3), the following
  3       nonexclusive list of mitigating factors may be considered in determining
  4       whether substantial and compelling reasons for a departure exist:
  5             (A) The victim was an aggressor or participant in the criminal conduct
  6       associated with the crime of conviction.
  7             (B) The offender played a minor or passive role in the crime or par-
  8       ticipated under circumstances of duress or compulsion. This factor is not
  9       sufficient as a complete defense.
10             (C) The offender, because of physical or mental impairment, lacked
11       substantial capacity for judgment when the offense was committed. The
12       voluntary use of intoxicants, drugs or alcohol does not fall within the
13       purview of this factor.
14             (D) The defendant, or the defendant's children, suffered a continuing
15       pattern of physical or sexual abuse by the victim of the offense and the
16       offense is a response to that abuse.
17             (E) The degree of harm or loss attributed to the current crime of
18       conviction was significantly less than typical for such an offense.
19             (2) Subject to the provisions of subsection (b)(3), the following no-
20       nexclusive list of aggravating factors may be considered in determining
21       whether substantial and compelling reasons for departure exist:
22             (A) The victim was particularly vulnerable due to age, infirmity, or
23       reduced physical or mental capacity which was known or should have
24       been known to the offender.
25             (B) The defendant's conduct during the commission of the current
26       offense manifested excessive brutality to the victim in a manner not nor-
27       mally present in that offense.
28             (C) The offense was motivated entirely or in part by the race, color,
29       religion, ethnicity, national origin or sexual orientation of the victim.
30             (D) The offense involved a fiduciary relationship which existed be-
31       tween the defendant and the victim.
32             (E) The defendant, 18 16 or more years of age, employed, hired,
33       used, persuaded, induced, enticed or coerced any individual under 16
34       years of age to commit or assist in avoiding detection or apprehension for
35       commission of any person felony or any attempt, conspiracy or solicitation
36       as defined in K.S.A. 21-3301, 21-3302 or 21-3303 and amendments
37       thereto to commit any person felony regardless of whether the defendant
38       knew the age of the individual under 16 years of age.
39             (F) The defendant's current crime of conviction is a crime of extreme
40       sexual violence and the defendant is a predatory sex offender. As used in
41       this subsection:
42             (i) "Crime of extreme sexual violence" is a felony limited to the
43       following:

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  1             (a) A crime involving a nonconsensual act of sexual intercourse or
  2       sodomy with any person;
  3             (b) a crime involving an act of sexual intercourse, sodomy or lewd
  4       fondling and touching with any child who is 14 or more years of age but
  5       less than 16 years of age and with whom a relationship has been estab-
  6       lished or promoted for the primary purpose of victimization; or
  7             (c) a crime involving an act of sexual intercourse, sodomy or lewd
  8       fondling and touching with any child who is less than 14 years of age.
  9             (ii) "Predatory sex offender" is an offender who has been convicted
10       of a crime of extreme sexual violence as the current crime of conviction
11       and who:
12             (a) Has one or more prior convictions of any crimes of extreme sexual
13       violence. Any prior conviction used to establish the defendant as a pred-
14       atory sex offender pursuant to this subsection shall also be counted in
15       determining the criminal history category; or
16             (b) suffers from a mental condition or personality disorder which
17       makes the offender likely to engage in additional acts constituting crimes
18       of extreme sexual violence.
19             (iii) "Mental condition or personality disorder" means an emotional,
20       mental or physical illness, disease, abnormality, disorder, pathology or
21       condition which motivates the person, affects the predisposition or desires
22       of the person, or interferes with the capacity of the person to control
23       impulses to commit crimes of extreme sexual violence.
24             In determining whether aggravating factors exist as provided in this
25       section, the court shall review the victim impact statement.
26             (3) If a factual aspect of a crime is a statutory element of the crime
27       or is used to subclassify the crime on the crime severity scale, that aspect
28       of the current crime of conviction may be used as an aggravating or mit-
29       igating factor only if the criminal conduct constituting that aspect of the
30       current crime of conviction is significantly different from the usual crim-
31       inal conduct captured by the aspect of the crime.
32             (c) In determining aggravating or mitigating circumstances, the court
33       shall consider:
34             (1) Any evidence received during the proceeding;
35             (2) the presentence report;
36             (3) written briefs and oral arguments of either the state or counsel
37       for the defendant; and
38             (4) any other evidence relevant to such aggravating or mitigating cir-
39       cumstances that the court finds trustworthy and reliable.
40             Sec.  8. K.S.A. 21-4717 is hereby amended to read as follows: 21-
41       4717. (a) The following aggravating factors, which apply to drug crimes
42       committed on or after July 1, 1993, under the sentencing guidelines sys-
43       tem, may be considered in determining whether substantial and compel-

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  1       ling reasons for departure exist:
  2             (1) The crime was committed as part of a major organized drug man-
  3       ufacture, production, cultivation or delivery activity. Two or more of the
  4       following nonexclusive factors constitute evidence of major organized
  5       drug manufacture, production, cultivation or delivery activity:
  6             (A) The offender derived a substantial amount of money or asset
  7       ownership from the illegal drug sale activity.
  8             (B) The presence of a substantial quantity or variety of weapons or
  9       explosives at the scene of arrest or associated with the illegal drug activity.
10             (C) The presence of drug transaction records or customer lists that
11       indicate a drug sale activity of major size.
12             (D) The presence of manufacturing or distribution materials such as,
13       but not limited to, drug recipes, precursor chemicals, laboratory equip-
14       ment, lighting, irrigation systems, ventilation, power-generation, scales or
15       packaging material.
16             (E) Building acquisitions or building modifications including but not
17       limited to painting, wiring, plumbing or lighting which advanced or fa-
18       cilitated the commission of the offense.
19             (F) Possession of large amounts of illegal drugs or substantial quan-
20       tities of controlled substances.
21             (G) A showing that the offender has engaged in repeated criminal
22       acts associated with the manufacture, production, cultivation or delivery
23       of controlled substances.
24             (2) The offender possessed illegal drugs:
25             (A) With intent to sell, which were sold or were offered for sale to a
26       person under 18 years of age; or
27             (B) with the intent to sell, deliver or distribute or which were sold or
28       offered for sale in the immediate presence of a person under 18 years of
29       age.
30             (3) The offender, 18 16 or more years of age, employs, hires, uses,
31       persuades, induces, entices or coerces any individual under 16 years of
32       age to violate or assist in avoiding detection or apprehension for violation
33       of any provision of the uniform controlled substances act, K.S.A. 65-4101
34       et seq. and amendments thereto or any attempt, conspiracy or solicitation
35       as defined in K.S.A. 21-3301, 21-3302 or 21-3303 and amendments
36       thereto to commit a violation of any provision of the uniform controlled
37       substances act regardless of whether the offender knew the age of the
38       individual under 16 years of age.
39             (b) In determining whether aggravating factors exist as provided in
40       this section, the court shall review the victim impact statement.
41             Sec.  9. K.S.A. 22-2909 is hereby amended to read as follows: 22-
42       2909. (a) A diversion agreement shall provide that if the defendant fulfills
43       the obligations of the program described therein, as determined by the

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  1       attorney general or county or district attorney, such attorney shall act to
  2       have the criminal charges against the defendant dismissed with prejudice.
  3       The diversion agreement shall include specifically the waiver of all rights
  4       under the law or the constitution of Kansas or of the United States to a
  5       speedy arraignment, preliminary examinations and hearings, and a speedy
  6       trial, and in the case of diversion under subsection (c) waiver of the rights
  7       to counsel and trial by jury. The diversion agreement may include, but is
  8       not limited to, provisions concerning payment of restitution, including
  9       court costs and diversion costs, residence in a specified facility, mainte-
10       nance of gainful employment, and participation in programs offering
11       medical, educational, vocational, social and psychological services, cor-
12       rective and preventive guidance and other rehabilitative services. If a
13       county creates a local fund under the property crime restitution and com-
14       pensation act, a county or district attorney may require in all diversion
15       agreements as a condition of diversion the payment of a diversion fee in
16       an amount not to exceed $100. Such fees shall be deposited into the local
17       fund and disbursed pursuant to recommendations of the local board un-
18       der the property crime restitution and victims compensation act.
19             (b) The diversion agreement shall state: (1) The defendant's full
20       name; (2) the defendant's full name at the time the complaint was filed,
21       if different from the defendant's current name; (3) the defendant's sex,
22       race and date of birth; (4) the crime with which the defendant is charged;
23       (5) the date the complaint was filed; and (6) the district court with which
24       the agreement is filed.
25             (c) If a diversion agreement is entered into in lieu of further criminal
26       proceedings on a complaint alleging a violation of K.S.A. 8-1567, and
27       amendments thereto, the diversion agreement shall include a stipulation,
28       agreed to by the defendant, the defendant's attorney if the defendant is
29       represented by an attorney and the attorney general or county or district
30       attorney, of the facts upon which the charge is based and a provision that
31       if the defendant fails to fulfill the terms of the specific diversion agree-
32       ment and the criminal proceedings on the complaint are resumed, the
33       proceedings, including any proceedings on appeal, shall be conducted on
34       the record of the stipulation of facts relating to the complaint. In addition,
35       the agreement shall include a requirement that the defendant:
36             (1) Pay a fine specified by the agreement in an amount equal to an
37       amount authorized by K.S.A. 8-1567, and amendments thereto, for a first
38       offense or, in lieu of payment of the fine, perform community service
39       specified by the agreement, in accordance with K.S.A. 8-1567, and
40       amendments thereto; and
41             (2) enroll in and successfully complete an alcohol and drug safety
42       action program or a treatment program, or both, as provided in K.S.A. 8-
43       1008, and amendments thereto, and specified by the agreement, and pay

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

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  1       agreement is filed with the district court. The copy of the agreement shall
  2       be made available upon request to the attorney general or any county,
  3       district or city attorney or court.
  4             (j) At the time of filing the diversion agreement with the district
  5       court, the attorney general or county or district attorney shall forward to
  6       the division of vehicles of the state department of revenue a copy of any
  7       diversion agreement entered into in lieu of further criminal proceedings
  8       on a complaint alleging a violation of K.S.A. 8-1567, and amendments
  9       thereto. The copy of the agreement shall be made available upon request
10       to the attorney general or any county, district or city attorney or court.
11             Sec.  10. K.S.A. 38-134 is hereby amended to read as follows: 38-134.
12       (a) As used in this section:
13             (1) "Child" means a person under 18 years of age who has been
14       removed from the home of a relative as a result of judicial determination
15       pursuant to the Kansas code for care of children or a person under 16
16       years of age who has been removed from the home of a relative as a result
17       of a judicial determination pursuant to the Kansas juvenile justice code
18       and whose placement and care is the responsibility of the secretary.
19             (2) "Family foster home" means a private home in which care is given
20       for 24 hours a day for children away from their parent or guardian and
21       which is licensed under K.A.R. 28-4-311 et seq.
22             (3) "Foster family" means all persons living in the foster home other
23       than foster children.
24             (4) "Foster parent" means the licensee who is responsible for the care
25       of foster children.
26             (5) "Secretary" means the secretary of social and rehabilitation
27       services.
28             (b) In order to assist the foster family to make an informed decision
29       regarding their acceptance of a particular child, to help the foster family
30       anticipate problems which may occur during the child's placement and
31       to help the foster family meet the needs of the child in a constructive
32       manner, the secretary shall seek to obtain and shall provide the following
33       information to the foster parent as the information becomes available to
34       the secretary:
35             (1) Strengths, needs and general behavior of the child;
36             (2) circumstances which necessitated placement;
37             (3) information about the child's family and the child's relationship
38       to the family which may affect the placement;
39             (4) important life experiences and relationships which may affect the
40       child's feelings, behavior, attitudes or adjustment;
41             (5) medical history of the child, including third-party coverage which
42       may be available to the child; and
43             (6) education history, to include present grade placement, special

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  1       strengths and weaknesses.
  2             Sec.  11. K.S.A. 38-501 is hereby amended to read as follows: 38-501.
  3       (a) The county commissioners of any county having a population of more
  4       than 20,000 may provide a detention home or juvenile farm for the pur-
  5       pose of caring for children who are under 18 years of age and who are
  6       delinquent, miscreant, juvenile offenders, wayward, deprived or children
  7       in need of care or under 16 years of age and are juvenile offenders.
  8             (b) Upon presentation to the board of county commissioners of any
  9       county of this state of a petition signed by at least 15% of the voters of
10       the county, the board shall call an election to be held at the date of the
11       next general election and shall submit at such election the question of
12       establishing a detention home or juvenile farm. The question shall appear
13       upon the ballot as follows:
14       For the detention home (or juvenile farm) [] []
15       Against the detention home (or juvenile farm) [] []
16       If a majority of the votes cast for and against such proposition shall be in
17       favor of such establishment, the board of county commissioners shall pro-
18       ceed to establish the same as herein provided.
19             (c) In the establishment of a detention home or juvenile farm or in
20       any home or farm previously established, the commissioners shall provide
21       separate quarters for those children who are delinquent, miscreant or
22       juvenile offenders and those children who are wayward, deprived or chil-
23       dren in need of care. Until a properly equipped juvenile farm has been
24       provided, the county commissioners may lease or rent a suitable building
25       or part thereof, for a term not to exceed five years, to be used for those
26       purposes.
27             Sec.  12. K.S.A. 38-523 is hereby amended to read as follows: 38-523.
28       The board of county commissioners of any county having a population of
29       more than 120,000 wherein territory has been designated as an urban
30       area may acquire the necessary grounds and erect and provide for the
31       maintenance of suitable buildings, improvements, facilities and equip-
32       ment for a juvenile farm or detention home for children under the age
33       of 18 years who are deprived, wayward, miscreant, delinquent, or children
34       in need of care or under 16 years of age who are juvenile offenders. In
35       any such county the board of county commissioners may submit the ques-
36       tion of the establishing, improving and equipping the detention home or
37       juvenile farm to the qualified electors of the county, at a general election
38       or at a special election called for that purpose. Upon the presentation of
39       a petition signed by more than 2,500 of the qualified electors of the
40       county, as determined by the election commissioner from the poll books
41       in the elections office, the board of county commissioners shall be re-
42       quired to submit the question to the voters at a general election or at a
43       special election called for such purpose. There shall also be submitted at

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  1       the same election the question of whether the funds required for the
  2       establishing, improving and equipping of such detention home or juvenile
  3       farm and grounds shall be raised by the issuance of bonds in an amount
  4       not exceeding $150,000 or by a special tax levy of one mill on each dollar
  5       of assessed taxable tangible property in the county, for a period of one
  6       year.
  7             If a majority of those voting on such proposition vote in favor of estab-
  8       lishing the detention home or juvenile farm and shall elect to raise the
  9       funds necessary therefor by the issuance of bonds, the county commis-
10       sioners may issue general obligation bonds of the county in the sum de-
11       termined necessary by the board to purchase the land and establish, im-
12       prove and equip the detention home or juvenile farm and grounds, but
13       the sum shall not exceed $150,000. The bonds shall be issued, registered,
14       sold, delivered and retired in accordance with the provisions of the gen-
15       eral bond law. The bonds shall not be subject to nor within any bonded
16       debt limitation prescribed by the laws of the state and shall not be con-
17       sidered or included in applying any other law limiting bonded
18       indebtedness.
19             If a majority of those voting on the proposition vote in favor of estab-
20       lishing the detention home or juvenile farm and grounds, and elect to
21       raise the funds necessary therefor by a special tax levy, the county com-
22       missioners shall levy a tax upon all of the taxable tangible property in the
23       county in the amount determined necessary to purchase the property and
24       improve and equip the detention home or juvenile farm and grounds, but
25       the tax so levied shall not exceed one mill on each dollar of the assessed
26       tangible valuation in the county for one year. The tax levy herein author-
27       ized shall be in addition to all other tax levies authorized or limited by
28       law, and shall not be subject to nor within the aggregate tax levy limits
29       prescribed by K.S.A. 79-1947 or amendments thereto.
30             Sec.  13. K.S.A. 38-528 is hereby amended to read as follows: 38-528.
31       The boards of county commissioners of any two (2) or more counties
32       jointly may provide a detention home or juvenile farm for the purpose of
33       caring for children under eighteen (18) 18 years of age who are detained
34       pursuant to the Kansas code for care of children or under 16 years of age
35       who are detained pursuant to the Kansas juvenile justice code and who
36       are in the custody of the judge of the district court; or upon presentation
37       to the board of county commissioners of each of such counties of a pe-
38       tition signed by at least fifteen percent (15%) 15% of the voters of said
39       such county as determined by the total vote cast for the office of secretary
40       of state at the last preceding general election, said such boards shall each
41       call an election to be held at the date of the next succeeding election and
42       shall submit at such election the question of establishing such joint de-
43       tention home or juvenile farm. Such question shall appear upon the ballot

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  1       as follows:
2       For the "detention home" (juvenile farm) [] []
3       Against the "detention home" (juvenile farm) [] []
  4       And if a majority of the votes cast for and against such proposition in each
  5       such county shall be in favor of such establishment, the boards of county
  6       commissioners of such counties shall proceed to establish the same as
  7       herein provided. Until a properly equipped home or farm has been pro-
  8       vided, such boards of county commissioners may lease or rent a suitable
  9       building or part thereof, for a term not to exceed five (5) years to be used
10       for such purposes.
11             Control of the home or farm shall be under a board of directors com-
12       posed of the judge of the district court and one county commissioner of
13       each of the participating counties.
14             Sec.  14. K.S.A. 38-541 is hereby amended to read as follows: 38-541.
15       The boards of county commissioners of any two (2) or more counties
16       jointly may provide a youth camp or home for the purpose of caring for
17       children under eighteen (18) 18 years of age who are in the custody of
18       the judge of the district court or other courts of records pursuant to the
19       Kansas code for care of children or under 16 years of age who are in the
20       custody of the judge of the district court or other courts of record pursuant
21       to the Kansas juvenile justice code.
22             Control of the youth camp or home shall be under a board of directors
23       composed of the members of the boards of county commissioners of the
24       participating counties and the judge of the district court of one of such
25       counties to be selected by the county commissioner members of such
26       board.
27             Sec.  15. K.S.A. 1998 Supp. 38-1602 is hereby amended to read as
28       follows: 38-1602. As used in this code, unless the context otherwise
29       requires:
30             (a) "Juvenile" means a person 10 or more years of age but less than
31       18 16 years of age.
32             (b) "Juvenile offender" means a person who does an act commits an
33       offense while a juvenile which if done committed by an adult would con-
34       stitute the commission of a felony or misdemeanor as defined by K.S.A.
35       21-3105 and amendments thereto or who violates the provisions of K.S.A.
36       21-4204a or K.S.A. 41-727 or subsection (j) of K.S.A. 74-8810, and
37       amendments thereto, but does not include:
38             (1) A person 14 or more years of age who commits a traffic offense,
39       as defined in subsection (d) of K.S.A. 8-2117 and amendments thereto;
40             (2) a person 16 years of age or over who commits an offense defined
41       in chapter 32 of the Kansas Statutes Annotated;
42             (3) a person whose prosecution as an adult is authorized pursuant to
43       K.S.A. 38-1636 and amendments thereto and whose prosecution results

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  1       in the conviction of an adult crime; or
  2             (4) a person who has been found to be an extended jurisdiction ju-
  3       venile pursuant to subsection (a)(2) of K.S.A. 38-1636, and amendment
  4       thereto, and whose stay of adult sentence execution has been revoked.
  5       under 16 years of age who previously has been:
  6             (A) Convicted as an adult under the Kansas code of criminal
  7       procedure;
  8             (B) sentenced as an adult under the Kansas code of criminal proce-
  9       dure following termination of status as an extended jurisdiction juvenile
10       pursuant to K.S.A. 38-16,126 and amendments thereto; or
11             (C) convicted or sentenced as an adult in another state or foreign
12       jurisdiction under substantially similar procedures described in K.S.A. 38-
13       1636 and amendments thereto, or because of attaining the age of majority
14       designated in that state or jurisdiction.
15             (c) "Parent," when used in relation to a juvenile or a juvenile of-
16       fender, includes a guardian, conservator and every person who is by law
17       liable to maintain, care for or support the juvenile.
18             (d) "Law enforcement officer" means any person who by virtue of
19       that person's office or public employment is vested by law with a duty to
20       maintain public order or to make arrests for crimes, whether that duty
21       extends to all crimes or is limited to specific crimes.
22             (e) "Youth residential facility" means any home, foster home or struc-
23       ture which provides twenty-four-hour-a-day care for juveniles and which
24       is licensed pursuant to article 5 of chapter 65 of the Kansas Statutes
25       Annotated.
26             (f) "Juvenile detention facility" means any secure public or private
27       facility which is used for the lawful custody of accused or adjudicated
28       juvenile offenders and which must shall not be a jail.
29             (g) "Juvenile correctional facility" means a facility operated by the
30       commissioner for juvenile offenders.
31             (h) "Warrant" means a written order by a judge of the court directed
32       to any law enforcement officer commanding the officer to take into cus-
33       tody the juvenile named or described therein.
34             (i) "Commissioner" means the commissioner of juvenile justice.
35             (j) "Jail" means:
36             (1) An adult jail or lockup; or
37             (2) a facility in the same building as an adult jail or lockup, unless the
38       facility meets all applicable licensure requirements under law and there
39       is (A) total separation of the juvenile and adult facility spatial areas such
40       that there could be no haphazard or accidental contact between juvenile
41       and adult residents in the respective facilities; (B) total separation in all
42       juvenile and adult program activities within the facilities, including rec-
43       reation, education, counseling, health care, dining, sleeping, and general

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  1       living activities; and (C) separate juvenile and adult staff, including man-
  2       agement, security staff and direct care staff such as recreational, educa-
  3       tional and counseling.
  4             (k) "Court-appointed special advocate" means a responsible adult,
  5       other than an attorney appointed pursuant to K.S.A. 38-1606 and amend-
  6       ments thereto, who is appointed by the court to represent the best inter-
  7       ests of a child, as provided in K.S.A. 1998 Supp. 38-1606a, and amend-
  8       ments thereto, in a proceeding pursuant to this code.
  9             (l) "Juvenile intake and assessment worker" means a responsible
10       adult authorized to perform intake and assessment services as part of the
11       intake and assessment system established pursuant to K.S.A. 76-3202, 75-
12       7023 and amendments thereto.
13             (m) "Institution" means the following institutions: The Atchison ju-
14       venile correctional facility, the Beloit juvenile correctional facility, the
15       Larned juvenile correctional facility and the Topeka juvenile correctional
16       facility.
17             (n) "Sanction Sanctions house" means a facility which is operated or
18       structured so as to ensure that all entrances and exits from the facility are
19       under the exclusive control of the staff of the facility, whether or not the
20       person being detained has freedom of movement within the perimeters
21       of the facility, or which relies on locked rooms and buildings, fences, or
22       physical restraint in order to control the behavior of its residents. Upon
23       an order from the court, a licensed juvenile detention facility may serve
24       as a sanction sanctions house. A sanction sanctions house may be physi-
25       cally connected physically to a nonsecure shelter facility provided the
26       sanction sanctions house is not a licensed juvenile detention facility.
27             (o) "Sentencing risk assessment tool" means an instrument adminis-
28       tered to juvenile offenders which delivers a score, or group of scores,
29       describing, but not limited to describing, the juvenile's potential risk to
30       the community.
31             (p) "Educational institution" means all schools at the elementary and
32       secondary levels.
33             (q) "Educator" means any administrator, teacher or other profes-
34       sional or paraprofessional employee of an educational institution who has
35       exposure to a pupil specified in subsection (a)(1) through (5) of K.S.A.
36       1998 Supp. 72-89b03 and amendments thereto.
37             Sec.  16. K.S.A. 1998 Supp. 38-1609 is hereby amended to read as
38       follows: 38-1609. (a) The diagnostic, treatment or medical records of any
39       juvenile offender shall be privileged and shall not be disclosed except:
40             (1) Upon the written consent of the former juvenile or, if the juvenile
41       offender is under 18 16 years of age, by the parent of the juvenile;
42             (2) upon a determination by the head of the treatment facility, who
43       has the records, that disclosure is necessary for the further treatment of

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  1       the juvenile offender;
  2             (3) when any court having jurisdiction of the juvenile offender orders
  3       disclosure;
  4             (4) when authorized by K.S.A. 38-1614 and amendments thereto;
  5             (5) when requested orally or in writing by any attorney representing
  6       the juvenile offender, but the records shall not be further disclosed by
  7       the attorney unless approved by the court or presented as admissible
  8       evidence; or
  9             (6) upon a written request of a juvenile intake and assessment worker
10       in regard to an alleged juvenile offender when the information is needed
11       for screening and assessment purposes or placement decisions, but the
12       records shall not be further disclosed by the worker unless approved by
13       the court.
14             (b) Willful violation of this section is a class C misdemeanor.
15             (c) Nothing in this section shall operate to extinguish any right of a
16       juvenile offender established by attorney-client, physician-patient, psy-
17       chologist-client or social worker-client privileges.
18             (d) Relevant information, reports and records shall be made available
19       to the department of corrections upon request and a showing that the
20       former juvenile has been convicted of a crime and placed in the custody
21       of the secretary of the department of corrections.
22             Sec.  17. K.S.A. 1998 Supp. 38-1611 is hereby amended to read as
23       follows: 38-1611. (a) Fingerprints or photographs shall not be taken of
24       any juvenile who is taken into custody for any purpose, except that:
25             (1) Fingerprints or photographs of the juvenile may be taken if au-
26       thorized by a judge of the district court having jurisdiction;
27             (2) a juvenile's fingerprints shall be taken, and photographs of a ju-
28       venile may be taken, immediately upon taking the juvenile into custody
29       or upon first appearance or in any event before final sentencing, before
30       the court for an offense which, if committed by a person 18 16 or more
31       years of age, would make the person liable to be arrested and prosecuted
32       for the commission of a felony as defined by K.S.A. 21-3105 and amend-
33       ments thereto or a class A or B misdemeanor; and
34             (3) fingerprints or photographs of a juvenile may be taken under
35       K.S.A. 21-2501 and amendments thereto if the juvenile has been:
36             (A) Prosecuted as an adult by reason of 38-1636, and amendments
37       thereto; or
38             (B) convicted of aggravated juvenile delinquency as defined by K.S.A.
39       21-3611 and amendments thereto; or
40             (C) taken into custody for an offense described in subsection (b)(1)
41       or (2) of K.S.A. 38-1602 and amendments thereto.
42             (b) Fingerprints and photographs taken under subsection (a)(1) or
43       (2) shall be kept readily distinguishable from those of persons of the age

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  1       of majority. Fingerprints and photographs taken under subsection (a)(3)
  2       may be kept in the same manner as those of persons of the age of majority.
  3             (c) Fingerprints and photographs of a juvenile shall not be sent to a
  4       state or federal repository, except that:
  5             (1) Fingerprints and photographs may be sent to a state or federal
  6       repository if authorized by a judge of the district court having jurisdiction;
  7             (2) a juvenile's fingerprints shall, and photographs of a juvenile may,
  8       be sent to a state or federal repository if taken under subsection (a)(2);
  9       and
10             (3) fingerprints or photographs taken under subsection (a)(3) shall be
11       processed and disseminated in the same manner as those of persons of
12       the age of majority.
13             (d) Fingerprints or photographs of a juvenile may be furnished to
14       another juvenile justice agency, as defined by K.S.A. 38-1617 and amend-
15       ments thereto, if the other agency has a legitimate need for the finger-
16       prints or photographs.
17             (e) Any fingerprints or photographs of a juvenile taken under the
18       provisions of subsection (a)(2) as it existed before the effective date of
19       this act may be sent to a state or federal repository on or before December
20       31, 1984.
21             (f) Any law enforcement agency that willfully fails to make any report
22       required by this section shall be liable to the state for the payment of a
23       civil penalty, recoverable in an action brought by the attorney general, in
24       an amount not exceeding $500 for each report not made. Any civil penalty
25       recovered under this subsection shall be paid into the state general fund.
26             (g) The director of the Kansas bureau of investigation shall adopt any
27       rules and regulations necessary to implement, administer and enforce the
28       provisions of this section, including time limits within which fingerprints
29       shall be sent to a state or federal repository when required by this section.
30             (h) Nothing in this section shall preclude the custodian of a juvenile
31       from authorizing photographs or fingerprints of the juvenile to be used
32       in any action under the Kansas parentage act.
33             Sec.  18. K.S.A. 1998 Supp. 38-1624 is hereby amended to read as
34       follows: 38-1624. (a) By a law enforcement officer. A law enforcement
35       officer may take an alleged juvenile offender into custody when:
36             (1) Any offense has been or is being committed by the juvenile in the
37       officer's view;
38             (2) the officer has a warrant commanding that the juvenile be taken
39       into custody;
40             (3) the officer has probable cause to believe that a warrant or order
41       commanding that the juvenile be taken into custody has been issued in
42       this state or in another jurisdiction for an act committed therein;
43             (4) the officer has probable cause to believe that the juvenile is com-

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  1       mitting or has committed an act which, if committed by an adult, would
  2       constitute:
  3             (A) A felony; or
  4             (B) a misdemeanor and (i) the juvenile will not be apprehended or
  5       evidence of the offense will be irretrievably lost unless the juvenile is
  6       immediately taken into custody or (ii) the juvenile may cause injury to
  7       self or others or damage to property or may be injured unless immediately
  8       taken into custody; or
  9             (5) the officer has probable cause to believe that the juvenile has
10       violated an order for electronic monitoring as a term of probation.
11             (b) By a court services officer. A court services officer may take a
12       juvenile into custody when there is a warrant commanding that the ju-
13       venile be taken into custody, when the court services officer has probable
14       cause to believe that a warrant or order commanding that the juvenile be
15       taken into custody has been issued in this state or in another jurisdiction
16       for an act committed therein or when there is probable cause to believe
17       that the juvenile has violated an order for electronic monitoring as a term
18       of probation.
19             (c) Procedure.  (1) When any law enforcement officer takes an al-
20       leged juvenile offender into custody, the juvenile shall be taken without
21       unnecessary delay to an intake and assessment worker if an intake and
22       assessment program exists in the jurisdiction, or before the court for pro-
23       ceedings in accordance with this code or, if the court is not open for the
24       regular conduct of business, to a court services officer, a juvenile intake
25       and assessment worker, a juvenile detention facility or youth residential
26       facility which the court or the commissioner shall have designated. The
27       officer shall not take the juvenile to a juvenile detention facility unless
28       the juvenile meets one or more of the criteria listed in K.S.A. 38-1640,
29       and amendments thereto. Even if the juvenile meets one or more of such
30       criteria, the officer shall first consider whether taking the juvenile to an
31       available nonsecure facility is more appropriate.
32             (2) It shall be the duty of the officer to furnish the county or district
33       attorney or the juvenile intake and assessment worker if the officer has
34       delivered such juvenile to the worker, with all of the information in the
35       possession of the officer pertaining to the juvenile; the juvenile's parents,
36       or other persons interested in or likely to be interested in the juvenile;
37       and all other facts and circumstances which caused the juvenile to be
38       arrested or taken into custody.
39             (3)  (A) When the juvenile is less than 14 years of age, no in-custody
40       or arrest admission or confession resulting from interrogation may be
41       admitted into evidence unless the confession or admission was made fol-
42       lowing a consultation between the juvenile and the juvenile's parents,
43       guardian or attorney as to whether the juvenile will waive such juvenile's

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  1       right to an attorney and right against self-incrimination. It shall be the
  2       duty of the facility where the juvenile has been delivered to make a rea-
  3       sonable effort to contact the parent or guardian immediately upon such
  4       juvenile's arrival unless such parent or guardian is the alleged victim or
  5       alleged co-defendant of the crime under investigation.
  6             (B) When a parent or guardian is the alleged victim or alleged co-
  7       defendant of the crime under investigation and the juvenile is less than
  8       14 years of age, no in-custody or arrest admission or confession may be
  9       admitted into evidence unless the confession or admission was made fol-
10       lowing a consultation between the juvenile and a parent or guardian who
11       is not involved in the investigation of the crime, or an attorney as to
12       whether the juvenile will waive such juvenile's right to an attorney and
13       right against self-incrimination. It shall be the duty of the facility where
14       the juvenile has been delivered to make reasonable effort to contact a
15       parent or guardian who is not involved in the investigation of the crime
16       immediately upon such juvenile's arrival.
17             (d) Release prior to detention hearing. In the absence of a court order
18       to the contrary, the court or officials designated by the court, the county
19       or district attorney or the law enforcement agency taking a juvenile into
20       custody shall have the authority to direct the release of the juvenile prior
21       to the time specified by subsection (a) of K.S.A. 38-1632 and amendments
22       thereto. In addition, if an agreement is established pursuant to K.S.A. 38-
23       1635, and amendments thereto, a juvenile intake and assessment worker
24       shall have the authority to direct the release of a juvenile prior to a de-
25       tention hearing after the completion of the intake and assessment process
26       if the juvenile intake and assessment worker has reason to believe that if
27       released the juvenile will appear for further proceedings and will not be
28       dangerous to self or others.
29             (e) Person 18 16 or over taken into custody; detention and release.
30       Whenever a person 18 16 years of age or more is taken into custody by
31       a law enforcement officer for an alleged offense which was committed
32       prior to the time the person reached the age of 18 16 years, the officer
33       shall notify and refer the matter to the court for proceedings pursuant to
34       this code, except that the provisions of this code relating to detention
35       hearings shall not apply to that person. If detention is necessary, the
36       person shall be detained in jail. Unless the law enforcement officer took
37       the person into custody pursuant to a warrant issued by the court and the
38       warrant specifies the amount of bond or indicates that the person may be
39       released on personal recognizance, the person shall be taken before the
40       court of the county where the alleged act took place or, at the request of
41       the person, the person shall be taken, without delay, before the nearest
42       court. The court shall fix the terms and conditions of an appearance bond
43       upon which the person may be released from custody. The provisions of

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  1       article 28 of chapter 22 of the Kansas Statutes Annotated and K.S.A. 22-
  2       2901 and amendments thereto relating to appearance bonds and review
  3       of conditions and release shall be applicable to appearance bonds pro-
  4       vided for in this section.
  5             Sec.  19. K.S.A. 1998 Supp. 38-1626 is hereby amended to read as
  6       follows: 38-1626. (a) Persons upon whom served. The summons and a
  7       copy of the complaint shall be served on the juvenile alleged to be a
  8       juvenile offender, the parents or parent having legal custody or who may
  9       be ordered to pay child support by the court, the person with whom the
10       juvenile is residing, and any other person designated by the county or
11       district attorney.
12             (b) Form. The summons shall be issued by the clerk, dated the day
13       it is issued, contain the name of the court and the caption of the case and
14       be in substantially the following form:
15      
(Name of Court)
16       In the Matter of
17       __________________, Respondent            Case No. ________________
18       Date of birth ______________
19       A ____ male ____ female under the age of 18 16 years.
20      
S U M M O N S
21       TO:
22      
(Juvenile)
23      
24      
(Father)
25      
26      
(Mother)
27      
28      
29
(Other having custody-
relationship)
(Address)
30       A complaint has been filed in this court, a copy of which is attached.
31             On ________, 19__, at __ o'clock __m. the above-named juvenile and a par-
32       ent and any other person having legal custody are required to appear before this court at
33       ________. Failure to appear may cause the juvenile to be taken into custody and
34       brought before the court.
35             The juvenile will be required to plead guilty or not guilty to the statements in the com-
36       plaint. You have the right to hire an attorney to represent the above juvenile. If you do not
37       hire an attorney, the court will appoint an attorney for the juvenile. The juvenile, parent or
38       other person having legal custody of the juvenile may be required to repay the court for the
39       expense of the appointed attorney. The court may order one or both parents to pay child
40       support.
41       Date: ________, 19__
42      
Clerk of the District Court
43      
by ____________
44                   (Seal)

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  1             Sec.  20. K.S.A. 1998 Supp. 38-1636 is hereby amended to read as
  2       follows: 38-1636. (a) (1) Except as provided further, at any time after
  3       commencement of proceedings under this code against a respondent and
  4       prior to the beginning of an evidentiary hearing at which the court may
  5       enter a sentence as provided in K.S.A. 38-1655, and amendments thereto,
  6       the county or district attorney may file a motion requesting that the court
  7       authorize prosecution of the respondent as an adult under the applicable
  8       criminal statute. The respondent shall be presumed to be a juvenile unless
  9       good cause is shown to prosecute the respondent as an adult.
10             (2) At any time after commencement of proceedings under this code
11       against a respondent who was: (A) 14, or 15, 16 or 17 years of age at the
12       time of the offense or offenses alleged in the complaint, if any such of-
13       fense (i) if committed by an adult, would constitute an offgrid offense, a
14       person felony, a nondrug severity level 1 through 6 felony or any drug
15       severity level 1 or 2 felony; or (ii) was committed while in possession of
16       a firearm; or (B) charged with a felony or with more than one offense of
17       which one or more constitutes a felony after having been adjudicated or
18       convicted in a separate prior juvenile proceeding as having committed an
19       offense which would constitute a felony if committed by an adult and the
20       adjudications or convictions occurred prior to the date of the commission
21       of the new act charged and prior to the beginning of an evidentiary hear-
22       ing at which the court may enter a sentence as provided in K.S.A. 38-
23       1655, and amendments thereto, the county or district attorney may file a
24       motion requesting that the court authorize prosecution of the respondent
25       as an adult under the applicable criminal statute. The respondent shall
26       be presumed to be an adult. The burden of proof is on the respondent
27       to rebut the presumption.
28             (3) At any time after commencement of proceedings under this code
29       against a respondent and prior to the beginning of an evidentiary hearing
30       at which the court may enter a sentence as provided in K.S.A. 38-1655,
31       and amendments thereto, the county or district attorney may file a motion
32       requesting that the court designate the proceedings as an extended juris-
33       diction juvenile prosecution as provided further. If the county or district
34       attorney files a motion to designate the proceedings as an extended ju-
35       risdiction juvenile prosecution and the respondent was 14, or 15, 16 or
36       17 years of age at the time of the offense or offenses alleged in the com-
37       plaint and: (A) charged with an offense (i) if committed by an adult, would
38       constitute an offgrid felony, a person felony, a nondrug severity level 1
39       through 6 felony or any drug severity level 1 or 2 felony; or (ii) was
40       committed while in possession of a firearm; or (B) charged with a felony
41       or with more than one offense of which one or more constitutes a felony
42       after having been adjudicated or convicted in a separate prior juvenile
43       proceeding as having committed an act which would constitute a felony

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  1       if committed by an adult and the adjudications or convictions occurred
  2       prior to the date of the commission of the new offense charged, the
  3       burden of proof is on the respondent to rebut the designation of an ex-
  4       tended jurisdiction juvenile prosecution. In all other motions requesting
  5       that the court designate the proceedings as an extended jurisdiction ju-
  6       venile prosecution, the respondent is presumed to be a juvenile. The
  7       burden of proof is on the prosecutor to prove the respondent should be
  8       designated as an extended jurisdiction juvenile.
  9             (b) The motion also may contain a statement that the prosecuting
10       attorney will introduce evidence of the offenses alleged in the complaint
11       and request that, on hearing the motion and authorizing prosecution as
12       an adult or designating the proceedings as an extended jurisdiction ju-
13       venile prosecution under this code, the court may make the findings re-
14       quired in a preliminary examination provided for in K.S.A. 22-2902, and
15       amendments thereto, and the finding that there is no necessity for further
16       preliminary examination.
17             (c) Upon receiving a motion as established in subsection (a), the court
18       shall set a time and place for hearing on the motion. The court shall give
19       notice of the hearing to the respondent, each parent of the respondent,
20       if service is possible, and the attorney representing the respondent. The
21       motion shall be heard and determined prior to any further proceedings
22       on the complaint.
23             (d) If the respondent fails to appear for hearing on a motion as es-
24       tablished in subsection (a) after having been served with notice of the
25       hearing, the court may hear and determine the motion in the absence of
26       the respondent. If the court is unable to obtain service of process and
27       give notice of the hearing, the court may hear and determine the motion
28       in the absence of the respondent after having given notice of the hearing
29       at least once a week for two consecutive weeks in the official county
30       newspaper of the county where the hearing will be held.
31             (e) In determining whether or not prosecution as an adult should be
32       authorized or designating the proceeding as an extended jurisdiction ju-
33       venile prosecution, the court shall consider each of the following factors:
34       (1) The seriousness of the alleged offense and whether the protection of
35       the community requires prosecution as an adult or designating the pro-
36       ceeding as an extended jurisdiction juvenile prosecution; (2) whether the
37       alleged offense was committed in an aggressive, violent, premeditated or
38       willful manner; (3) whether the offense was against a person or against
39       property. Greater weight shall be given to offenses against persons, es-
40       pecially if personal injury resulted; (4) the number of alleged offenses
41       unadjudicated and pending against the respondent; (5) the previous his-
42       tory of the respondent, including whether the respondent had been ad-
43       judicated a juvenile offender under this code and, if so, whether the

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  1       offenses were against persons or property, and any other previous history
  2       of antisocial behavior or patterns of physical violence; (6) the sophistica-
  3       tion or maturity of the respondent as determined by consideration of the
  4       respondent's home, environment, emotional attitude, pattern of living or
  5       desire to be treated as an adult; (7) whether there are facilities or pro-
  6       grams available to the court which are likely to rehabilitate the respondent
  7       prior to the expiration of the court's jurisdiction under this code; and (8)
  8       whether the interests of the respondent or of the community would be
  9       better served by criminal prosecution or extended jurisdiction juvenile
10       prosecution. The insufficiency of evidence pertaining to any one or more
11       of the factors listed in this subsection, in and of itself, shall not be deter-
12       minative of the issue. Subject to the provisions of K.S.A. 38-1653, and
13       amendments thereto, written reports and other materials relating to the
14       respondent's mental, physical, educational and social history may be con-
15       sidered by the court.
16             (f)  (1) The court may authorize prosecution as an adult upon com-
17       pletion of the hearing if the court finds that there is substantial evidence
18       that the respondent should be prosecuted as an adult for the offense with
19       which the respondent is charged. In that case, the court shall direct the
20       respondent be prosecuted under the applicable criminal statute and that
21       the proceedings filed under this code be dismissed.
22             (2) The court may designate the proceeding as an extended jurisdic-
23       tion juvenile prosecution upon completion of the hearing if the respon-
24       dent has failed to rebut the presumption or the court finds that there is
25       substantial evidence that the respondent should be prosecuted under an
26       extended jurisdiction juvenile prosecution. A juvenile who is the subject
27       of an extended jurisdiction juvenile prosecution shall have the right to a
28       trial by jury, to the effective assistance of counsel and to all other rights
29       of a defendant pursuant to the Kansas code of criminal procedure. Each
30       court shall adopt local rules to establish the basic procedures for extended
31       juvenile jurisdiction prosecution in their jurisdictions.
32             (3) After a proceeding in which prosecution as an adult is requested
33       pursuant to subsection (a)(2), and prosecution as an adult is not author-
34       ized, the court may designate the proceedings to be an extended juvenile
35       jurisdiction prosecution. A juvenile who is the subject of an extended
36       juvenile jurisdiction prosecution shall have the right to a trial by jury, to
37       the effective assistance of counsel and to all other rights of a defendant
38       pursuant to the Kansas code of criminal procedure. Each court shall adopt
39       local rules to establish the basic procedures for extended juvenile juris-
40       diction prosecution in their jurisdictions.
41             (g) If the respondent is present in court and the court also finds from
42       the evidence that it appears a felony has been committed and that there
43       is probable cause to believe the felony has been committed by the re-

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  1       spondent, the court may direct that there is no necessity for further pre-
  2       liminary examination on the charges as provided for in K.S.A. 22-2902,
  3       and amendments thereto. In that case, the court shall order the respon-
  4       dent bound over to the district judge having jurisdiction to try the case.
  5             (h) If the respondent is convicted, the authorization for prosecution
  6       as an adult shall attach and apply to any future acts by the respondent
  7       which are or would be cognizable under this code.
  8             (i) If the respondent is prosecuted as an adult under subsection (a)(2)
  9       and is not convicted in adult court of an offense listed in subsection (a)(2)
10       but is convicted or adjudicated of a lesser included offense, the respon-
11       dent shall be a juvenile offender and receive a sentence pursuant to K.S.A.
12       38-1663, and amendments thereto.
13             Sec.  21. K.S.A. 1998 Supp. 38-1676 is hereby amended to read as
14       follows: 38-1676. (a) If a juvenile offender has committed an act which,
15       if committed by a person 18 16 years of age or over, would constitute a
16       class A or B felony, if the offense was committed before July 1, 1993, or
17       an off-grid felony, a nondrug crime ranked at severity level 1, 2 or 3 or a
18       drug crime ranked at severity level 1 or 2, if the offense was committed
19       on or after July 1, 1993, and such juvenile offender is to be released, 45
20       days before release, the commissioner shall notify the county attorney or
21       district attorney, the court, the local law enforcement agency, and the
22       school district in which the juvenile offender will be residing if the ju-
23       venile is still required to attend a secondary school, of such pending re-
24       lease. The county attorney, district attorney or the court on its own motion
25       may file a motion with the court for a hearing to determine if the juvenile
26       offender should be retained in the custody of the commissioner, pursuant
27       to K.S.A. 38-1675, and amendments thereto. The court shall fix a time
28       and place for hearing and shall notify each party of the time and place.
29             (b) Following the hearing if the court orders for the commissioner to
30       retain custody, the juvenile offender shall not be held in a juvenile cor-
31       rectional facility for longer than the maximum term of imprisonment
32       which could be imposed upon an adult convicted of the offense or of-
33       fenses which the juvenile offender has been adjudicated to have
34       committed.
35             (c) As used in this section, "maximum term of imprisonment" means
36       the greatest maximum sentence authorized by K.S.A. 21-4501 and
37       amendments thereto, applying any enhanced penalty which would be
38       applicable under K.S.A. 21-4504 and amendments thereto and computing
39       terms as consecutive when required by K.S.A. 21-4608 and amendments
40       thereto.
41             (d) This section shall be part of and supplemental to the Kansas ju-
42       venile justice code.
43             Sec.  22. K.S.A. 1998 Supp. 41-727 is hereby amended to read as

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  1       follows: 41-727. (a) Except with regard to serving of alcoholic liquor or
  2       cereal malt beverage as permitted by K.S.A. 41-308a, 41-308b, 41-2610
  3       or 41-2704, and amendments thereto, no person under 21 years of age
  4       shall possess, consume, obtain, purchase or attempt to obtain or purchase
  5       alcoholic liquor or cereal malt beverage except as authorized by law.
  6             (b) Violation of this section by a person 18 16 or more years of age
  7       but less than 21 years of age is a class C misdemeanor for which the
  8       minimum fine is $200.
  9             (c) Any person less than 18 16 years of age who violates this section
10       is a juvenile offender under the Kansas juvenile justice code. Upon ad-
11       judication thereof and as a condition of disposition, the court shall require
12       the offender to pay a fine of not less than $200 nor more than $500.
13             (d) In addition to any other penalty provided for a violation of this
14       section, the court may order the offender to do either or both of the
15       following:
16             (1) Perform 40 hours of public service; or
17             (2) attend and satisfactorily complete a suitable educational or train-
18       ing program dealing with the effects of alcohol or other chemical sub-
19       stances when ingested by humans.
20             (e) This section shall not apply to the possession and consumption of
21       cereal malt beverage by a person under the legal age for consumption of
22       cereal malt beverage when such possession and consumption is permitted
23       and supervised, and such beverage is furnished, by the person's parent
24       or legal guardian.
25             (f) Any city ordinance or county resolution prohibiting the acts pro-
26       hibited by this section shall provide a minimum penalty which is not less
27       than the minimum penalty prescribed by this section.
28             (g) This section shall be part of and supplemental to the Kansas liquor
29       control act.
30             Sec.  23. K.S.A. 1998 Supp. 65-4155 is hereby amended to read as
31       follows: 65-4155. (a) No person shall knowingly deliver or cause to be
32       delivered in this state any substance which is not a controlled substance:
33             (1) Upon an express representation that the substance is a controlled
34       substance or that the substance is of such nature or appearance that the
35       recipient will be able to distribute the substance as a controlled substance;
36       or
37             (2) under circumstances which would give a reasonable person reason
38       to believe that the substance is a controlled substance.
39             (b) If any one of the following factors is established, there shall be a
40       presumption that delivery of a substance was under circumstances which
41       would give a reasonable person reason to believe that a substance is a
42       controlled substance:
43             (1) The substance was packaged in a manner normally used for the

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  1       illegal delivery of controlled substances.
  2             (2) The delivery of the substance included an exchange of or demand
  3       for money or other consideration for delivery of the substance, and the
  4       amount of the consideration was substantially in excess of the reasonable
  5       value of the substance.
  6             (3) The physical appearance of the capsule or other material contain-
  7       ing the substance is substantially identical to a specific controlled
  8       substance.
  9             (c) Except as provided in subsection (d), violation of this section is a
10       class A nonperson misdemeanor.
11             (d) Any person 18 16 or more years of age who violates this section
12       by delivering or causing to be delivered in this state a substance to a
13       person under 18 16 years of age and who is at least three years older than
14       the person under 18 16 years of age to whom the delivery is made is guilty
15       of a nondrug severity level 9, nonperson felony.
16             Sec.  24. K.S.A. 1998 Supp. 65-4159 is hereby amended to read as
17       follows: 65-4159. (a) Except as authorized by the uniform controlled sub-
18       stances act, it shall be unlawful for any person to manufacture any con-
19       trolled substance or controlled substance analog.
20             (b) Any person violating the provisions of this section with respect to
21       the unlawful manufacturing or attempting to unlawfully manufacture any
22       controlled substance or controlled substance analog, upon conviction, is
23       guilty of:
24             (1) A drug severity level 2 felony upon conviction for a first offense;
25             (2) a drug severity level 1 felony upon conviction for a second offense
26       or subsequent offense and the sentence for which shall not be subject to
27       statutory provisions for suspended sentence, community work service, or
28       probation.
29             (c) The provisions of subsection (d) of K.S.A. 21-3301, and amend-
30       ments thereto, shall not apply to a violation of attempting to unlawfully
31       manufacture any controlled substance pursuant to this section.
32             (d) Notwithstanding any other provision of law, upon conviction of
33       any person for violating subsection (a), such person shall be guilty of a
34       drug severity level 1 felony if such person is 18 16 or more years of age
35       and the substances involved were manufactured within 1,000 feet of any
36       school property upon which is located a structure used by a unified school
37       district or an accredited nonpublic school for student instruction or at-
38       tendance or extracurricular activities of pupils enrolled in kindergarten
39       or any of the grades one through 12.
40             Nothing in this subsection shall be construed as requiring that school
41       be in session or that classes are actually being held at the time of the
42       offense or that children must be present within the structure or on the
43       property during the time of any alleged criminal act. If the structure or

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  1       property meets the description above, the actual use of that structure or
  2       property at the time alleged shall not be a defense to the crime charged
  3       or the sentence imposed.
  4             Sec.  25. K.S.A. 1998 Supp. 65-4161 is hereby amended to read as
  5       follows: 65-4161. (a) Except as authorized by the uniform controlled sub-
  6       stances act, it shall be unlawful for any person to sell, offer for sale or
  7       have in such person's possession with intent to sell, deliver or distribute;
  8       prescribe; administer; deliver; distribute; dispense or compound any opi-
  9       ates, opium or narcotic drugs, or any stimulant designated in subsection
10       (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107 and amendments thereto. Except
11       as provided in subsections (b), (c) and (d), any person who violates this
12       subsection shall be guilty of a drug severity level 3 felony.
13             (b) If any person who violates this section has one prior conviction
14       under this section or a conviction for a substantially similar offense from
15       another jurisdiction, then that person shall be guilty of a drug severity
16       level 2 felony.
17             (c) If any person who violates this section has two or more prior
18       convictions under this section or substantially similar offenses under the
19       laws of another jurisdiction, then such person shall be guilty of a drug
20       severity level 1 felony.
21             (d) Notwithstanding any other provision of law, upon conviction of
22       any person for a first offense pursuant to subsection (a), such person shall
23       be guilty of a drug severity level 2 felony if such person is 18 16 or more
24       years of age and the substances involved were possessed with intent to
25       sell, deliver or distribute; sold or offered for sale in or on, or within 1,000
26       feet of any school property upon which is located a structure used by a
27       unified school district or an accredited nonpublic school for student in-
28       struction or attendance or extracurricular activities of pupils enrolled in
29       kindergarten or any of the grades one through 12.
30             Nothing in this subsection shall be construed as requiring that school
31       be in session or that classes are actually being held at the time of the
32       offense or that children must be present within the structure or on the
33       property during the time of any alleged criminal act. If the structure or
34       property meets the description above, the actual use of that structure or
35       property at the time alleged shall not be a defense to the crime charged
36       or the sentence imposed.
37             (e) It shall not be a defense to charges arising under this section that
38       the defendant was acting in an agency relationship on behalf of any other
39       party in a transaction involving a controlled substance.
40             (f) For purposes of the uniform controlled substances act, the pro-
41       hibitions contained in this section shall apply to controlled substance an-
42       alogs as defined in subsection (bb) of K.S.A. 65-4101 and amendments
43       thereto.

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  1             (g) The provisions of this section shall be part of and supplemental
  2       to the uniform controlled substances act.
  3             Sec.  26. K.S.A. 1998 Supp. 65-4163 is hereby amended to read as
  4       follows: 65-4163. (a) Except as authorized by the uniform controlled sub-
  5       stances act, it shall be unlawful for any person to sell, offer for sale or
  6       have in such person's possession with the intent to sell, deliver or distrib-
  7       ute; cultivate; prescribe; administer; deliver; distribute; dispense or
  8       compound:
  9             (1) Any depressant designated in subsection (e) of K.S.A. 65-4105,
10       subsection (e) of K.S.A. 65-4107, subsection (b) or (c) of K.S.A. 65-4109
11       or subsection (b) of K.S.A. 65-4111, and amendments thereto;
12             (2) any stimulant designated in subsection (f) of K.S.A. 65-4105, sub-
13       section (d)(2), (d)(4) or (f)(2) of K.S.A. 65-4107 or subsection (e) of K.S.A.
14       65-4109, and amendments thereto;
15             (3) any hallucinogenic drug designated in subsection (d) of K.S.A. 65-
16       4105, and amendments thereto or designated in subsection (g) of K.S.A.
17       65-4107 and amendments thereto;
18             (4) any substance designated in subsection (g) of K.S.A. 65-4105, and
19       amendments thereto, and designated in subsection (c), (d), (e), (f) or (g)
20       of K.S.A. 65-4111, and amendments thereto; or
21             (5) any anabolic steroids as defined in subsection (f) of K.S.A. 65-
22       4109, and amendments thereto.
23             Except as provided in subsection (b), any person who violates this sub-
24       section shall be guilty of a drug severity level 3 felony.
25             (b) Notwithstanding any other provision of law, upon conviction of
26       any person pursuant to subsection (a) for an offense in which the sub-
27       stances involved were possessed with intent to sell, sold or offered for
28       sale in or on, or within 1,000 feet of any school property upon which is
29       located a structure used by a unified school district or an accredited non-
30       public school for student instruction or attendance or extracurricular ac-
31       tivities of pupils enrolled in kindergarten or any of the grades one through
32       12 and such person is 18 16 or more years of age, such person shall be
33       guilty of a drug severity level 2 felony.
34             Nothing in this subsection shall be construed as requiring that school
35       be in session or that classes are actually being held at the time of the
36       offense or that children must be present within the structure or on the
37       property during the time of any alleged criminal act. If the structure or
38       property meets the description above, the actual use of that structure or
39       property at the time alleged shall not be a defense to the crime charged
40       or the sentence imposed.
41             (c) It shall not be a defense to charges arising under this section that
42       the defendant was acting in an agency relationship on behalf of any other
43       party in a transaction involving a controlled substance.

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  1             (d) For purposes of the uniform controlled substances act, the pro-
  2       hibitions contained in this section shall apply to controlled substance an-
  3       alogs as defined in subsection (bb) of K.S.A. 65-4101 and amendments
  4       thereto.
  5             (e) The provisions of this section shall be part of and supplemental
  6       to the uniform controlled substances act. 
  7       Sec.  27. K.S.A. 8-254, 12-4419, 21-4717, 22-2909, 38-134, 38-501,
  8       38-523, 38-528 and 38-541 and K.S.A. 1998 Supp. 8-2117, 12-4509, 21-
  9       3612, 21-4502, 21-4716, 38-1602, 38-1602a, 38-1609, 38-1611, 38-1624,
10       38-1626, 38-1636, 38-1676, 41-727, 65-4155, 65-4159, 65-4161 and 65-
11       4163 are hereby repealed.
12        Sec.  28. This act shall take effect and be in force from and after its
13       publication in the statute book.