Session of 1999
         
SENATE BILL No. 341
         
By Committee on Federal and State Affairs
          
2-25
          
  9             AN  ACT concerning crimes and punishments and criminal administra-
10             tive procedure; relating to driving under the influence of alcohol and
11             drugs; amending K.S.A. 8-2,145 and K.S.A. 1998 Supp. 8-241, 8-1001,
12             8-1002, 8-1014, 8-1567, 21-4704, 22-3717 and 65-1,107 and repealing
13             the existing sections.
14      
15       Be it enacted by the Legislature of the State of Kansas:
16             Section  1. K.S.A. 1998 Supp. 8-241 is hereby amended to read as
17       follows: 8-241. (a) Except as provided in K.S.A. 8-2,125 through 8-2,142,
18       and amendments thereto, any person licensed to operate a motor vehicle
19       in this state shall submit to an examination whenever: (1) The division of
20       vehicles has good cause to believe that such person is incompetent or
21       otherwise not qualified to be licensed; or (2) the division of vehicles has
22       suspended such person's license pursuant to K.S.A. 8-1014, and amend-
23       ments thereto, as the result of a test refusal, test failure or conviction for
24       a violation of K.S.A. 8-1567, and amendments thereto, or a violation of
25       city ordinance or county resolution prohibiting the acts prohibited by
26       K.S.A. 8-1567 and amendments thereto, except that no person shall have
27       to submit to and successfully complete an examination more than once
28       as the result of separate suspensions arising out of the same occurrence.
29             (b) When a person is required to submit to an examination pursuant
30       to subsection (a)(1), the fee for such examination shall be in the amount
31       provided by K.S.A 8-240, and amendments thereto. When a person is
32       required to submit to an examination pursuant to subsection (a)(2), the
33       fee for such examination shall be $5. In addition, any person required to
34       submit to an examination pursuant to subsection (a)(2) shall be required,
35       at the time of examination, to pay a reinstatement fee of $50 $200 after
36       the first occurrence, $400 after the second occurrence, $600 after the third
37       occurrence and $800 after the fourth occurrence. No reinstatement shall
38       be allowed after the fifth or subsequent occurrence. All examination fees
39       collected pursuant to this section shall be disposed of as provided in
40       K.S.A. 8-267, and amendments thereto. All reinstatement fees collected
41       pursuant to this section shall be remitted to the state treasurer, who shall
42       deposit the entire amount in the state treasury and credit 50% to the
43       community alcoholism and intoxication programs fund created pursuant

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  1       to K.S.A. 41-1126, and amendments thereto, 20% to the juvenile deten-
  2       tion facilities fund created by K.S.A. 79-4803, and amendments thereto,
  3       20% to the forensic laboratory and materials fee fund cited in K.S.A. 28-
  4       176, and amendments thereto, and 10% to the driving under the influence
  5       equipment fund created by K.S.A. 75-5660,and amendments thereto.
  6       Moneys credited to the forensic laboratory and materials fee fund as pro-
  7       vided herein shall be used to supplement existing appropriations and shall
  8       not be used to supplant general fund appropriations to the Kansas bureau
  9       of investigation.
10             (c) When an examination is required pursuant to subsection (a), at
11       least five days' written notice of the examination shall be given to the
12       licensee. The examination administered hereunder shall be at least equiv-
13       alent to the examination required by subsection (e) of K.S.A. 8-247, and
14       amendments thereto, with such additional tests as the division deems
15       necessary. Upon the conclusion of such examination, the division shall
16       take action as may be appropriate and may suspend or revoke the license
17       of such person or permit the licensee to retain such license, or may issue
18       a license subject to restrictions as permitted under K.S.A. 8-245, and
19       amendments thereto.
20             (d) Refusal or neglect of the licensee to submit to an examination as
21       required by this section shall be grounds for suspension or revocation of
22       the license.
23             Sec.  2. K.S.A. 8-2,145 is hereby amended to read as follows: 8-2,145.
24       (a) Prior to requesting a test or tests pursuant to K.S.A. 8-2,137, and
25       amendments thereto, in addition to any notices provided pursuant to par-
26       agraph (1) of subsection (f) of K.S.A. 8-1001, and amendments thereto,
27       the following notice shall be provided orally and in writing: Whenever a
28       law enforcement officer has reasonable grounds to believe a person has
29       been driving a commercial motor vehicle while having alcohol or other
30       drugs in such person's system and the person refuses to submit to and
31       complete a test or tests requested by a law enforcement officer or submits
32       to and completes a test requested by a law enforcement officer which
33       determines that the person's alcohol concentration is .04 or greater, the
34       person will be disqualified from driving a commercial motor vehicle for
35       at least one year, pursuant to Kansas law.
36             (b) It shall not be a defense that the person did not understand the
37       notices required by this section.
38             (c) Upon completion of the notices set out in paragraph (1) of sub-
39       section (f) of K.S.A. 8-1001, and amendments thereto, and the notices in
40       subsection (a), the law enforcement officer shall proceed to request a test
41       or tests. In addition to the completion of any certification required under
42       K.S.A. 8-1002, and amendments thereto, a law enforcement officer's cer-
43       tification shall be prepared and signed by one or more officers to certify:

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  1             (1) There existed reasonable grounds to believe the person had been
  2       driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and
  3       amendments thereto, while having alcohol or other drugs in such person's
  4       system;
  5             (2) the person had been placed under arrest, was in custody or had
  6       been involved in a motor vehicle accident or collision;
  7             (3) a law enforcement officer had presented the person with the no-
  8       tices required by this section; and
  9             (4) the person refused to submit to and complete a test or the test
10       result for alcohol content of blood or breath was .04 or greater.
11             (d) For purposes of this section, certification shall be complete upon
12       signing, and no additional acts of oath, affirmation, acknowledgment or
13       proof of execution shall be required. The signed certification or a copy
14       or photostatic reproduction thereof shall be admissible in evidence in all
15       proceedings brought pursuant to this act, and receipt of any such certi-
16       fication, copy or reproduction shall accord the division authority to pro-
17       ceed as set forth herein. Any person who signs a certification submitted
18       to the division knowing it contains a false statement is guilty of a class B
19       misdemeanor.
20             (e) Upon completing a certification under subsection (c), the officer
21       shall serve upon the person notice of disqualification of the privilege to
22       drive a commercial motor vehicle pursuant to K.S.A. 8-2,142, and amend-
23       ments thereto, together with a copy of the certification. In cases where a
24       .04 or greater test result is established by a subsequent analysis of a breath
25       or blood sample, the officer shall serve notice of such suspension in per-
26       son or by another designated officer or by mailing the notice to the person
27       at the address provided at the time of the test. If the determination of a
28       test refusal or .04 or greater test result is made while the person is still
29       in custody, service shall be made in person by the officer on behalf of the
30       division of vehicles.
31             (f) The notice shall contain the following information:
32             (1) The person's name, driver's license number and current address
33       pursuant to K.S.A. 8-248, and amendments thereto;
34             (2) the reason and statutory grounds for the disqualification;
35             (3) the date notice is being served and the effective date of the dis-
36       qualification, which shall be the 20th day after the date of service;
37             (4) the right of the person to request an administrative hearing; and
38             (5) the procedure the person must follow to request an administrative
39       hearing. The notice of disqualification shall also inform the person that
40       all correspondence will be mailed to the person at the address contained
41       in the notice of disqualification unless the person notifies the division in
42       writing of a different address or change of address. The address provided
43       will be considered a change of address for purposes of K.S.A. 8-248, and

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  1       amendments thereto, if the address furnished is different from that on
  2       file with the division.
  3             (g) If the person mails a written request which is postmarked within
  4       10 calendar days after service of the notice, if by personal service, or 13
  5       calendar days after service, if by mail, the division shall schedule a hearing
  6       in the county where the alleged violation occurred, or in a county adjacent
  7       thereto. The licensee may request that subpoenas be issued in accordance
  8       with the notice provided pursuant to subsection (d). Any request made
  9       by the licensee to subpoena witnesses must be made in writing at the
10       time the hearing is requested and must include the name and current
11       address of such witness and, except for the certifying law enforcement
12       officer or officers, a statement of how the testimony of such witness is
13       relevant. Upon receiving a timely request for a hearing, the division shall
14       mail to the person notice of the time, date and place of hearing in ac-
15       cordance with subsection (i) and extend the person's temporary driving
16       privileges until the date set for the hearing by the division, unless oth-
17       erwise disqualified, suspended, revoked or canceled.
18             (h) The law enforcement officer shall forward the certification re-
19       quired under subsection (c) to the director within five days of the date
20       of certification. Upon receipt of the certification, the division shall review
21       the certification to determine that it meets the requirements of subsection
22       (c). Upon so determining, the director shall proceed to disqualify the
23       driver from driving a commercial motor vehicle in accordance with the
24       notice of disqualification previously served.
25             (i) All notices of disqualification under this section and all notices of
26       a hearing held under this section shall be sent by first-class mail and a
27       United States post office certificate of mailing shall be obtained therefor.
28       All notices so mailed shall be deemed received three days after mailing.
29             (j) Failure of a person to provide an adequate breath sample or sam-
30       ples as directed shall constitute a refusal unless the person shows that the
31       failure was due to physical inability caused by a medical condition unre-
32       lated to any ingested alcohol or drugs.
33             (k) The rules regarding evidence and procedure at hearings held un-
34       der K.S.A. 8-1002 section 5, and amendments thereto, shall be applicable
35       to hearings held under this section. At the hearing on a disqualification
36       of commercial driving privileges, the issues shall be limited to those set
37       out in the certification.
38             (l) The division shall prepare and distribute forms for use by law
39       enforcement officers in giving the notice required by this section.
40             Sec.  3. K.S.A. 1998 Supp. 8-1001 is hereby amended to read as fol-
41       lows: 8-1001. (a) Any person who operates or attempts to operate a vehicle
42       within this state is deemed to have given consent, subject to the provisions
43       of this act, to submit to one or more tests of the person's blood, breath,

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  1       urine or other bodily substance to determine the presence of alcohol or
  2       drugs. The testing deemed consented to herein shall include all quanti-
  3       tative and qualitative tests for alcohol and drugs. A person who is dead
  4       or unconscious shall be deemed not to have withdrawn the person's con-
  5       sent to such test or tests, which shall be administered in the manner
  6       provided by this section.
  7             (b) A law enforcement officer shall request a person to submit to a
  8       test or tests deemed consented to under subsection (a) if the officer has
  9       reasonable grounds to believe the person was operating or attempting to
10       operate a vehicle while under the influence of alcohol or drugs, or both,
11       or to believe that the person was driving a commercial motor vehicle, as
12       defined in K.S.A. 8-2,128, and amendments thereto, or was under the
13       age of 21 years while having alcohol or other drugs in such person's sys-
14       tem; and one of the following conditions exists: (1) The person has been
15       arrested or otherwise taken into custody for any offense involving oper-
16       ation or attempted operation of a vehicle while under the influence of
17       alcohol or drugs, or both, or for a violation of K.S.A. 8-1567a, and amend-
18       ments thereto, or involving driving a commercial motor vehicle, as defined
19       in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other
20       drugs in such person's system, in violation of a state statute or a city
21       ordinance; or (2) the person has been involved in a vehicle accident or
22       collision resulting in property damage, personal injury or death. The law
23       enforcement officer directing administration of the test or tests may act
24       on personal knowledge or on the basis of the collective information avail-
25       able to law enforcement officers involved in the accident investigation or
26       arrest.
27             (c) If a law enforcement officer requests a person to submit to a test
28       of blood under this section, the withdrawal of blood at the direction of
29       the officer may be performed only by: (1) A person licensed to practice
30       medicine and surgery or a person acting under the supervision of any
31       such licensed person; (2) a registered nurse or a licensed practical nurse;
32       or (3) any qualified medical technician, including, but not limited to, an
33       emergency medical technician-intermediate or mobile intensive care
34       technician, as those terms are defined in K.S.A. 65-6112, and amend-
35       ments thereto, or a phlebotomist. When presented with a written state-
36       ment by a law enforcement officer directing blood to be withdrawn from
37       a person who has tentatively agreed to allow the withdrawal of blood
38       under this section, the person authorized herein to withdraw blood and
39       the medical care facility where blood is withdrawn may rely on such a
40       statement as evidence that the person has consented to the medical pro-
41       cedure used and shall not require the person to sign any additional con-
42       sent or waiver form. In such a case, the person authorized to withdraw
43       blood and the medical care facility shall not be liable in any action alleging

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  1       lack of consent or lack of informed consent. No person authorized by this
  2       subsection to withdraw blood, nor any person assisting in the performance
  3       of a blood test nor any medical care facility where blood is withdrawn or
  4       tested that has been directed by any law enforcement officer to withdraw
  5       or test blood, shall be liable in any civil or criminal action when the act
  6       is performed in a reasonable manner according to generally accepted
  7       medical practices in the community where performed.
  8             (d) If there are reasonable grounds to believe that there is impair-
  9       ment by a drug which is not subject to detection by the blood or breath
10       test used, a urine test may be required. If a law enforcement officer
11       requests a person to submit to a test of urine under this section, the
12       collection of the urine sample shall be supervised by persons of the same
13       sex as the person being tested and shall be conducted out of the view of
14       any person other than the persons supervising the collection of the sample
15       and the person being tested, unless the right to privacy is waived by the
16       person being tested. The results of qualitative testing for drug presence
17       shall be admissible in evidence and questions of accuracy or reliability
18       shall go to the weight rather than the admissibility of the evidence.
19             (e) No law enforcement officer who is acting in accordance with this
20       section shall be liable in any civil or criminal proceeding involving the
21       action.
22             (f)  (1) Before a test or tests are administered under this section, the
23       person shall be given oral and written notice that:
24             (A) Kansas law requires the person to submit to and complete one
25       or more tests of breath, blood or urine to determine if the person is under
26       the influence of alcohol or drugs, or both;
27             (B) the opportunity to consent to or refuse a test is not a constitu-
28       tional right;
29             (C) there is no constitutional right to consult with an attorney re-
30       garding whether to submit to testing;
31             (D) if the person refuses to submit to and complete any breath, blood
32       or urine test when requested by a law enforcement officer, the person
33       shall be guilty of a class B misdemeanor;
34             (E) if the person refuses to submit to and complete any test of breath,
35       blood or urine hereafter requested by a law enforcement officer, the
36       person's driving privileges will be suspended for at least one year the first
37       occurrence, two years for the second occurrence, three years for the third
38       occurrence, 10 years for the fourth occurrence and permanently revoked
39       for a fifth or subsequent offense;
40             (E) (F) if the person submits to and completes the test or tests and
41       the test results show an alcohol concentration of .08 or greater, the per-
42       son's driving privileges will be suspended for at least 30 days; (F) if the
43       person refuses a test or the test results show an alcohol concentration of

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  1       .08 or greater and if, within the past five years, the person has been
  2       convicted or granted diversion on a charge of driving under the influence
  3       of alcohol or drugs, or both, or a related offense or has refused or failed
  4       a test, the person's driving privileges will be suspended for at least one
  5       year; the first occurrence, two years for the second occurrence, three years
  6       for the third occurrence, 10 years for the fourth occurrence and perma-
  7       nently revoked for a fifth or subsequent offense;
  8             (G) refusal to submit to testing may be used against the person at any
  9       trial on a charge arising out of the operation or attempted operation of a
10       vehicle while under the influence of alcohol or drugs, or both;
11             (H) the results of the testing may be used against the person at any
12       trial on a charge arising out of the operation or attempted operation of a
13       vehicle while under the influence of alcohol or drugs, or both; and
14             (I) after the completion of the testing, the person has the right to
15       consult with an attorney and may secure additional testing, which, if de-
16       sired, should be done as soon as possible and is customarily available from
17       medical care facilities and physicians.
18             (g) If a law enforcement officer has reasonable grounds to believe
19       that the person has been driving a commercial motor vehicle, as defined
20       in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other
21       drugs in such person's system, the person must also shall be provided the
22       oral and written notice pursuant to K.S.A. 8-2,145, and amendments
23       thereto. Any failure to give the notices required by K.S.A. 8-2,145, and
24       amendments thereto shall not invalidate any action taken as a result of
25       the requirements of this section. After giving the foregoing information
26       If a law enforcement officer has reasonable grounds to believe that the
27       person has been driving or attempting to drive a vehicle, while having
28       alcohol or other drugs in such person's system and such person was under
29       21 years of age, the person also shall be given the notices required by
30       K.S.A. 8-1567a, and amendments thereto. Any failure to give the notices
31       required by K.S.A. 8-1567a, and amendments thereto, shall not invalidate
32       any action taken as a result of the requirements of this section.
33             (h) After giving the notice required by this section, a law enforcement
34       officer shall request the person to submit to testing. The selection of the
35       test or tests shall be made by the officer. If the person refuses to submit
36       to and complete a test as requested pursuant to this section, additional
37       testing shall not be given unless the certifying officer has probable cause
38       to believe that the person, while under the influence of alcohol or drugs,
39       or both, has operated a vehicle in such a manner as to have caused the
40       death of or serious injury to another person. As used in this section, the
41       officer shall have probable cause to believe that the person operated a
42       vehicle while under the influence of alcohol or drugs, or both, if the
43       vehicle was operated by such person in such a manner as to have caused

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  1       the death of or serious injury to another person. In such event, such test
  2       or tests may be made pursuant to a search warrant issued under the
  3       authority of K.S.A. 22-2502, and amendments thereto, or without a search
  4       warrant under the authority of K.S.A. 22-2501, and amendments thereto.
  5       If the test results show a blood or breath alcohol concentration of .08 or
  6       greater, the person's driving privileges shall be subject to suspension, or
  7       suspension and restriction, as provided in K.S.A. 8-1002 and 8-1014, and
  8       amendments thereto.
  9             (i) The person's refusal shall be admissible in evidence against the
10       person at any trial on a charge arising out of the alleged operation or
11       attempted operation of a vehicle while under the influence of alcohol or
12       drugs, or both.
13             (j) If a law enforcement officer had reasonable grounds to believe the
14       person had been driving a commercial motor vehicle, as defined in K.S.A.
15       8-2,128, and amendments thereto, and the test results show a blood or
16       breath alcohol concentration of .04 or greater, the person shall be dis-
17       qualified from driving a commercial motor vehicle, pursuant to K.S.A. 8-
18       2,142, and amendments thereto. If a law enforcement officer had rea-
19       sonable grounds to believe the person had been driving a commercial
20       motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto,
21       and the test results show a blood or breath alcohol concentration of .08
22       or greater, or the person refuses a test, the person's driving privileges
23       shall be subject to suspension, or suspension and restriction, pursuant to
24       this section, in addition to being disqualified from driving a commercial
25       motor vehicle pursuant to K.S.A. 8-2,142, and amendments thereto.
26             (k) An officer shall have probable cause to believe that the person
27       operated a vehicle while under the influence of alcohol or drugs, or both,
28       if the vehicle was operated by such person in such a manner as to have
29       caused the death of or serious injury to another person. In such event,
30       such test or tests may be made pursuant to a search warrant issued under
31       the authority of K.S.A. 22-2502, and amendments thereto, or without a
32       search warrant under the authority of K.S.A. 22-2501, and amendments
33       thereto.
34             (2)(l) The failure of a person to provide an adequate breath sample
35       or samples as directed shall constitute a refusal unless the person shows
36       that the failure was due to physical inability caused by a medical condition
37       unrelated to any ingested alcohol or drugs.
38             (3)(m) It shall not be a defense that the person did not understand
39       the written or oral notice required by this section.
40             (4)(n) No test results shall be suppressed because of technical irreg-
41       ularities in the consent or notice required pursuant to K.S.A. 8-2,145, and
42       amendments thereto this act.
43             (g)(o) Nothing in this section shall be construed to limit the admis-

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  1       sibility at any trial of alcohol or drug concentration testing results obtained
  2       pursuant to a search warrant.
  3             (h)(p) Upon the request of any person submitting to testing under
  4       this section, a report of the results of the testing shall be made available
  5       to such person.
  6             (i)(q) This act is remedial law and shall be liberally construed to pro-
  7       mote public health, safety and welfare.
  8             Sec.  4. K.S.A. 1998 Supp. 8-1002 is hereby amended to read as fol-
  9       lows: 8-1002. (a) Whenever a test is requested pursuant to this act and
10       results in either a test failure or test refusal, a law enforcement officer's
11       certification shall be prepared. If the person had been driving a com-
12       mercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments
13       thereto, a separate certification pursuant to K.S.A. 8-2,145, and amend-
14       ments thereto, shall be prepared in addition to any certification required
15       by this section. The certification required by this section shall be signed
16       by one or more officers to certify:
17             (1) With regard to a test refusal, that:
18             (A) There existed reasonable grounds to believe the person was op-
19       erating or attempting to operate a vehicle while under the influence of
20       alcohol or drugs, or both, or to believe that the person had been driving
21       a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amend-
22       ments thereto, or is under 21 years of age while having alcohol or other
23       drugs in such person's system;
24             (B) the person had been placed under arrest, was in custody or had
25       been involved in a vehicle accident or collision;
26             (C) a law enforcement officer had presented the person with the oral
27       and written notice required by K.S.A. 8-1001, and amendments thereto;
28       and
29             (D) the person refused to submit to and complete a test as requested
30       by a law enforcement officer.
31             (2) With regard to a test failure, that:
32             (A) There existed reasonable grounds to believe the person was op-
33       erating a vehicle while under the influence of alcohol or drugs, or both,
34       or to believe that the person had been driving a commercial motor ve-
35       hicle, as defined in K.S.A. 8-2,128, and amendments thereto, or is under
36       21 years of age while having alcohol or other drugs in such person's
37       system;
38             (B) the person had been placed under arrest, was in custody or had
39       been involved in a vehicle accident or collision;
40             (C) a law enforcement officer had presented the person with the oral
41       and written notice required by K.S.A. 8-1001, and amendments thereto;
42       and
43             (D) the result of the test showed that the person had an alcohol con-

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  1       centration of .08 or greater in such person's blood or breath.
  2             (3) With regard to failure of a breath test, in addition to those matters
  3       required to be certified under subsection (a)(2), that:
  4             (A) The testing equipment used was certified by the Kansas depart-
  5       ment of health and environment;
  6             (B) the testing procedures used were in accordance with the require-
  7       ments set out by the Kansas department of health and environment; and
  8             (C) the person who operated the testing equipment was certified by
  9       the Kansas department of health and environment to operate such
10       equipment.
11             (b) For purposes of this section, certification shall be complete upon
12       signing, and no additional acts of oath, affirmation, acknowledgment or
13       proof of execution shall be required. The signed certification or a copy
14       or photostatic reproduction thereof shall be admissible in evidence in all
15       proceedings brought pursuant to this act, and receipt of any such certi-
16       fication, copy or reproduction shall accord the department authority to
17       proceed as set forth herein. Any person who signs a certification submit-
18       ted to the division knowing it contains a false statement is guilty of a class
19       B nonperson misdemeanor.
20             (c) When the officer directing administration of the testing deter-
21       mines that a person has refused a test and the criteria of subsection (a)(1)
22       have been met or determines that a person has failed a test and the criteria
23       of subsection (a)(2) have been met, the officer shall serve upon the person
24       notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and
25       amendments thereto. If the determination is made while the person is
26       still in custody, service shall be made in person by the officer on behalf
27       of the division of vehicles. In cases where a test failure is established by
28       a subsequent analysis of a breath, blood or urine sample, the officer shall
29       serve notice of such suspension in person or by another designated officer
30       or by mailing the notice to the person at the address provided at the time
31       of the test.
32             (d) In addition to the information required by subsection (a), the law
33       enforcement officer's certification and notice of suspension shall contain
34       the following information:
35             (1) The person's name, driver's license number and current address;
36             (2) the reason and statutory grounds for the suspension;
37             (3) the date notice is being served and a statement that the effective
38       date of the suspension shall be the 30th calendar day after the date of
39       service;
40             (4) the right of the person to request an administrative hearing; and
41             (5) the procedure the person must follow to request an administrative
42       hearing. The law enforcement officer's certification and notice of suspen-
43       sion shall also inform the person that all correspondence will be mailed

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  1       to the person at the address contained in the law enforcement officer's
  2       certification and notice of suspension unless the person notifies the di-
  3       vision in writing of a different address or change of address. The address
  4       provided will be considered a change of address for purposes of K.S.A.
  5       8-248, and amendments thereto, if the address furnished is different from
  6       that on file with the division.
  7             (e) If a person refuses a test or if a person is still in custody when it
  8       is determined that the person has failed a test, the officer shall take any
  9       license in the possession of the person and, if the license is not expired,
10       suspended, revoked or canceled, shall issue a temporary license effective
11       until the 30th calendar day after the date of service set out in the law
12       enforcement officer's certification and notice of suspension. If the test
13       failure is established by a subsequent analysis of a breath or blood sample,
14       the temporary license shall be served together with the copy of the law
15       enforcement officer's certification and notice of suspension. A temporary
16       license issued pursuant to this subsection shall bear the same restrictions
17       and limitations as the license for which it was exchanged. Within five days
18       after the date of service of a copy of the law enforcement officer's certi-
19       fication and notice of suspension the officer's certification and notice of
20       suspension, along with any licenses taken, shall be forwarded to the
21       division.
22             (f) Upon receipt of the law enforcement officer's certification, the
23       division shall review the certification to determine that it meets the
24       requirements of subsection (a). Upon so determining, the division shall
25       proceed to suspend the person's driving privileges in accordance with the
26       notice of suspension previously served. If the requirements of subsection
27       (a) are not met, the division shall dismiss the administrative proceeding
28       and return any license surrendered by the person.
29             (g) If the person mails a written request which is postmarked within
30       10 days after service of the notice, if by personal service, or 13 days after
31       service, if by mail, the division shall schedule a hearing in the county
32       where the alleged violation occurred, or in a county adjacent thereto. The
33       licensee may request that subpoenas be issued in accordance with the
34       notice provided pursuant to subsection (d). Any request made by the
35       licensee to subpoena witnesses must be made in writing at the time the
36       hearing is requested and must include the name and current address of
37       such witnesses and, except for the law enforcement officer or officers
38       certifying refusal or failure, a statement of how the testimony of such
39       witness is relevant. Upon receiving a timely request for a hearing, the
40       division shall mail to the person notice of the time, date and place of
41       hearing in accordance with subsection (l) and extend the person's tem-
42       porary driving privileges until the date set for the hearing by the division.
43             (h)  (1) If the officer certifies that the person refused the test, the

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  1       scope of the hearing shall be limited to whether: (A) A law enforcement
  2       officer had reasonable grounds to believe the person was operating or
  3       attempting to operate a vehicle while under the influence of alcohol or
  4       drugs, or both, or to believe that the person had been driving a com-
  5       mercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments
  6       thereto, while having alcohol or other drugs in such person's system; (B)
  7       the person was in custody or arrested for an alcohol or drug related of-
  8       fense or was involved in a vehicle accident or collision resulting in prop-
  9       erty damage, personal injury or death; (C) a law enforcement officer had
10       presented the person with the oral and written notice required by K.S.A.
11       8-1001, and amendments thereto; and (D) the person refused to submit
12       to and complete a test as requested by a law enforcement officer.
13             (2) If the officer certifies that the person failed the test, the scope of
14       the hearing shall be limited to whether: (A) A law enforcement officer
15       had reasonable grounds to believe the person was operating a vehicle
16       while under the influence of alcohol or drugs, or both, or to believe that
17       the person had been driving a commercial motor vehicle, as defined in
18       K.S.A. 8-2,128, and amendments thereto, while having alcohol or other
19       drugs in such person's system; (B) the person was in custody or arrested
20       for an alcohol or drug related offense or was involved in a vehicle accident
21       or collision resulting in property damage, personal injury or death; (C) a
22       law enforcement officer had presented the person with the oral and writ-
23       ten notice required by K.S.A. 8-1001, and amendments thereto; (D) the
24       testing equipment used was reliable; (E) the person who operated the
25       testing equipment was qualified; (F) the testing procedures used were
26       reliable; (G) the test result determined that the person had an alcohol
27       concentration of .08 or greater in such person's blood or breath; and (H)
28       the person was operating a vehicle.
29             (i) At a hearing pursuant to this section, or upon court review of an
30       order entered at such a hearing, an affidavit of the custodian of records
31       at the Kansas department of health and environment stating that the
32       breath testing device was certified and the operator of such device was
33       certified on the date of the test shall be admissible into evidence in the
34       same manner and with the same force and effect as if the certifying officer
35       or employee of the Kansas department of health and environment had
36       testified in person. Such affidavit shall be admitted to prove such relia-
37       bility without further foundation requirement. A certified operator of a
38       breath testing device shall be competent to testify regarding the proper
39       procedures to be used in conducting the test.
40             (j) At a hearing pursuant to this section, or upon court review of an
41       order entered at such hearing, in which the report of blood test results
42       have been prepared by the Kansas bureau of investigation or other fo-
43       rensic laboratory of a state or local law enforcement agency are to be

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  1       introduced as evidence, the report, or a copy of the report, of the findings
  2       of the forensic examiner shall be admissible into evidence in the same
  3       manner and with the same force and effect as if the forensic examiner
  4       who performed such examination, analysis, comparison or identification
  5       and prepared the report thereon had testified in person.
  6             (k) If no timely request for hearing is made, the suspension period
  7       imposed pursuant to this section shall begin upon the expiration of the
  8       temporary license granted under subsection (e). If a timely request for
  9       hearing is made, the hearing shall be held within 30 days of the date the
10       request for hearing is received by the division, except that failure to hold
11       such hearing within 30 days shall not be cause for dismissal absent a
12       showing of prejudice. At the hearing, the director or the representative
13       of the director, shall either affirm the order of suspension or suspension
14       and restriction or dismiss the administrative action. If the division is un-
15       able to hold a hearing within 30 days of the date upon which the request
16       for hearing is received, the division shall extend the person's temporary
17       driving privileges until the date set for the hearing by the division. No
18       extension of temporary driving privileges shall be issued for continuances
19       requested by or on behalf of the licensee. If the person whose privileges
20       are suspended is a nonresident licensee, the license of the person shall
21       be forwarded to the appropriate licensing authority in the person's state
22       of residence if the result at the hearing is adverse to such person or if no
23       timely request for a hearing is received.
24             (l) All notices affirming or canceling a suspension under this section,
25       all notices of a hearing held under this section and all issuances of tem-
26       porary driving privileges pursuant to subsection (k) shall be sent by first-
27       class mail and a U.S. post office certificate of mailing shall be obtained
28       therefor. All notices so mailed shall be deemed received three days after
29       mailing.
30             (m) (g) The division shall prepare and distribute forms for use by law
31       enforcement officers in giving the notice required by this section.
32             (n) This section and the applicable provisions contained in subsec-
33       tions (d) and (e) of K.S.A. 8-255 and amendments thereto constitute the
34       administrative procedures to be used for all administrative hearings held
35       under this act. To the extent that this section and any other provision of
36       law conflicts, this section prevails.
37             (o) (h) The provisions of K.S.A. 60-206 and amendments thereto re-
38       garding the computation of time shall not be applicable in determining
39       the effective date of suspension set out in subsection (d) or the time for
40       requesting an administrative hearing set out in subsection (g). "Calendar
41       day" when used in this section shall mean that every day shall be included
42       in computations of time whether a week day, Saturday, Sunday or holiday.
43             New Sec.  5. (a) Any licensee served with an officer's certification and

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  1       notice of suspension pursuant to K.S.A. 8-1002, and amendments thereto,
  2       may request an administrative hearing. Such request may be made either
  3       by:
  4             (1) Mailing a written request which is postmarked 10 calendar days
  5       after service of notice, if such notice was given by personal service;
  6             (2) mailing a written request which is postmarked 13 calendar days
  7       after service of notice, if such notice was given by mail; or
  8             (3) transmitting a written request by electronic facsimile which is re-
  9       ceived by the division within 10 calendar days after service of the notice,
10       if such notice was given by personal service; or
11             (4) transmitting a written request by electronic facsimile which is re-
12       ceived by the division within 13 calendar days after service, if such notice
13       was given by mail.
14             (b) If the licensee makes a timely request for an administrative hear-
15       ing, any temporary license issued pursuant to K.S.A. 8-1002, and amend-
16       ments thereto, shall remain in effect until the 30th calendar day after the
17       effective date of the decision made by the division.
18             (c) If the licensee fails to make a timely request for an administrative
19       hearing, the licensee's driving privileges shall be suspended or suspended
20       and then restricted in accordance with the notice of suspension served
21       pursuant to K.S.A. 8-1002, and amendments thereto.
22             (d) Upon receipt of a timely request for a hearing, the division shall
23       set the matter for hearing before a representative of the director and
24       provide notice of the extension of temporary driving privileges. The hear-
25       ing shall be conducted in the county where the arrest occurred or a county
26       adjacent thereto. At the discretion of the division, the hearing may be
27       conducted by telephone conference call.
28             (e) Except as provided in subsection (f), pre-hearing discovery shall
29       be limited to the following documents, which shall be provided to the
30       licensee or the licensee's attorney no later than five calendar days prior
31       to the date of the hearing:
32             (1) The officer's certification and notice of suspension;
33             (2) in the case of a breath or blood test failure, copies of documents
34       indicating the result of any evidentiary breath or blood test administered
35       at the request of a law enforcement officer;
36             (3) in the case of a breath test failure, a copy of the affidavit showing
37       certification of the officer and the instrument;
38             (4) in the case of a breath test failure, a copy of the Kansas depart-
39       ment of health and environment testing protocol checklist.
40             (f) At or prior to the time the notice of hearing is sent, the division
41       shall issue an order allowing the licensee or the licensee's attorney to
42       review any video or audio tape record made of the events upon which
43       the administrative action is based. Such review shall take place at a rea-

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  1       sonable time designated by the law enforcement agency and shall be
  2       made at the location where the video or audio tape is kept. The licensee
  3       may obtain a copy of any such video or audio tape upon request and upon
  4       payment of a reasonable fee to the law enforcement agency, not to exceed
  5       $25 per tape.
  6             (g) Witnesses at the hearing shall be limited to the licensee and to
  7       any law enforcement officer who signed the certification form. The pres-
  8       ence of the certifying officer or officers shall not be required, unless
  9       requested by the licensee at the time of making the request for the hear-
10       ing. The examination of a law enforcement officer shall be restricted to
11       the factual circumstances relied upon in the officer's certification. At the
12       time the licensee requests the division to subpoena a law enforcement
13       officer to attend the administrative hearing, whether in person or by tel-
14       ephone conference, the licensee shall pay a fee by check or money order
15       in the amount of $50. Such check or money order shall be payable to the
16       order of the law enforcement agency which employs the officer and shall
17       be transmitted by the division to such law enforcement agency together
18       with the subpoena.
19             (h)  (1) If the officer certifies that the person refused the test, the
20       scope of the hearing shall be limited to whether:
21             (A) A law enforcement officer had reasonable grounds to believe the
22       person was operating or attempting to operate a vehicle while under the
23       influence of alcohol or drugs, or both, or the person was less than 21 years
24       of age or had been driving a commercial motor vehicle, as defined in
25       K.S.A. 8-2,128, and amendments thereto, while having alcohol or other
26       drugs in such person's system;
27             (B) the person was in custody or arrested for an alcohol or drug re-
28       lated offense or was involved in a vehicle accident or collision resulting
29       in property damage, personal injury or death;
30             (C) a law enforcement officer had presented the person with the oral
31       and written notice required by K.S.A. 8-1001, and amendments thereto;
32       and
33             (D) the person refused to submit to and complete a test as requested
34       by a law enforcement officer.
35             (2) If the officer certifies that the person failed a breath test, the
36       scope of the hearing shall be limited to whether:
37             (A) A law enforcement officer had reasonable grounds to believe the
38       person was operating a vehicle while under the influence of alcohol or
39       drugs, or both, or to believe that the person was less than 21 years of age
40       or had been driving a commercial motor vehicle, as defined in K.S.A. 8-
41       2,128, and amendments thereto, while having alcohol or other drugs in
42       such person's system;
43             (B) the person was in custody or arrested for an alcohol or drug re-

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  1       lated offense or was involved in a vehicle accident or collision resulting
  2       in property damage, personal injury or death;
  3             (C) a law enforcement officer had presented the person with the oral
  4       and written notice required by K.S.A. 8-1001, and amendments thereto;
  5             (D) the testing equipment used was certified by the Kansas depart-
  6       ment of health and environment;
  7             (E) the person who operated the testing equipment was certified by
  8       the Kansas department of health and environment;
  9             (F) the testing procedures used substantially complied with the pro-
10       cedures set out by the Kansas department of health and environment;
11             (G) the test result determined that the person had an alcohol con-
12       centration of .08 or greater in such person's breath; and
13             (H) the person was operating or attempting to operate a vehicle.
14             (3) If the officer certifies that the person failed a blood test, the scope
15       of the hearing shall be limited to whether:
16             (A) A law enforcement officer had reasonable grounds to believe the
17       person was operating a vehicle while under the influence of alcohol or
18       drugs, or both, or to believe that the person was less than 21 years of age
19       or had been driving a commercial motor vehicle, as defined in K.S.A. 8-
20       2,128, and amendments thereto, while having alcohol or other drugs in
21       such person's system;
22             (B) the person was in custody or arrested for an alcohol or drug re-
23       lated offense or was involved in a vehicle accident or collision resulting
24       in property damage, personal injury or death;
25             (C) a law enforcement officer had presented the person with the oral
26       and written notice required by K.S.A. 8-1001, and amendments thereto;
27             (D) the testing equipment used was reliable;
28             (E) the person who operated the testing equipment was qualified;
29             (F) the testing procedures used were reliable;
30             (G) the test result determined that the person had an alcohol con-
31       centration of .08 or greater in such person's blood; and
32             (H) the person was operating or attempting to operate a vehicle.
33             (i) At a hearing pursuant to this section, or upon court review of an
34       order entered at such a hearing, an affidavit of the custodian of records
35       at the Kansas department of health and environment stating that the
36       breath testing device was certified and the operator of such device was
37       certified on the date of the test shall be admissible into evidence in the
38       same manner and with the same force and effect as if the certifying officer
39       or employee of the Kansas department of health and environment had
40       testified in person. A certified operator of a breath testing device shall be
41       competent to testify regarding the proper procedures to be used in con-
42       ducting the test.
43             (j) At a hearing pursuant to this section, or upon court review of an

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  1       order entered at such hearing, in which the report of blood test results
  2       have been prepared by the Kansas bureau of investigation or other fo-
  3       rensic laboratory of a state or local law enforcement agency are to be
  4       introduced as evidence, the report, or a copy of the report, of the findings
  5       of the forensic examiner shall be admissible into evidence in the same
  6       manner and with the same force and effect as if the forensic examiner
  7       who performed such examination, analysis, comparison or identification
  8       and prepared the report thereon had testified in person.
  9             (k) At the hearing, the licensee has the burden of proof by a prepon-
10       derance of the evidence to show that the facts set out in the officer's
11       certification are false or insufficient and that the order suspending or
12       suspending and restricting the licensee's driving privileges should be
13       dismissed.
14             (l) Evidence at the hearing shall be limited to the following:
15             (1) the documents set out in paragraph (e) of this section;
16             (2) the testimony of the licensee;
17             (3) the testimony of any certifying officer;
18             (4) any affidavits submitted from other witnesses;
19             (5) any documents submitted by the licensee to show the existence
20       of a medical condition, as described in K.S.A. 8-1001, and amendments
21       thereto; and
22             (6) any video or audio tape record of the events upon which the ad-
23       ministrative action is based
24             (m) After the hearing, the representative of the director shall enter
25       an order affirming the order of suspension or suspension and restriction
26       of driving privileges or for good cause appearing therefor, dismiss the
27       administrative action. If the representative of the director enters an order
28       affirming the order of suspension or suspension and restriction of driving
29       privileges, the suspension or suspension and restriction shall begin on the
30       30th day after the effective date of the order of suspension or suspension
31       and restriction. If the person whose privileges are suspended is a non-
32       resident licensee, the license of the person shall be forwarded to the
33       appropriate licensing authority in the person's state of residence if the
34       result at the hearing is adverse to such person or if no timely request for
35       a hearing is received.
36             (n) The representative of the director may issue an order at the close
37       of the hearing or may take the matter under advisement and issue a
38       hearing order at a later date. If the order is made at the close of the
39       hearing, the licensee or the licensee's attorney shall be served with a copy
40       of the order by the representative of the director. If the matter is taken
41       under advisement or if the hearing was by telephone conference call, the
42       licensee and any attorney who appeared at the administrative hearing
43       upon behalf of the licensee each shall be served with a copy of the hearing

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  1       order by mail. Any law enforcement officer who appeared at the hearing
  2       also may be mailed a copy of the hearing order. The effective date of the
  3       hearing order shall be the date upon which the hearing order is served,
  4       whether served in person or by mail.
  5             (o) The licensee may file a petition for review of the hearing order
  6       pursuant to K.S.A. 8-259, and amendments thereto. Upon filing a petition
  7       for review, the licensee shall serve the secretary of revenue with a copy
  8       of the petition and summons. Upon receipt of a copy of the petition for
  9       review by the secretary, the temporary license issued pursuant to para-
10       graph (b) of this section shall be extended until the decision on the pe-
11       tition for review is final.
12             (p) Such review shall be in accordance with this section and the act
13       for judicial review and civil enforcement of agency actions. To the extent
14       that this section and any other provision of law conflicts, this section shall
15       prevail. The petition for review shall be filed within 10 days after the
16       effective date of the order. Venue of the action for review is the county
17       where the person was arrested or the accident occurred, or, if the hearing
18       was not conducted by telephone conference call, the county where the
19       administrative proceeding was held. The action for review shall be by trial
20       de novo to the court. The court shall take testimony, examine the facts
21       of the case and determine whether the petitioner is entitled to driving
22       privileges or whether the petitioner's driving privileges are subject to
23       suspension or suspension and restriction under the provisions of this act.
24       If the court finds that the grounds for action by the agency have been
25       met, the court shall affirm the agency action.
26             (q) Upon review, the licensee shall have the burden to show that the
27       decision of the agency should be set aside. To be raised upon review, an
28       issue shall have been raised at the administrative hearing and also shall
29       be set out in the petition for review. The court is not limited to any
30       evidentiary record created during the administrative hearing and may
31       accept additional evidence on the issues preserved for review. Except as
32       otherwise provided in this section, the court shall not rely upon evidence
33       contained in the record of the administrative proceeding below, absent
34       compliance upon review with the rules of evidence in a civil proceeding.
35             (r) Notwithstanding the requirement to issue a temporary license in
36       K.S.A. 1002, and amendments thereto, and the requirements to extend
37       the temporary license in this section, any such temporary driving privi-
38       leges are subject to restriction, suspension, revocation or cancellation as
39       provided in K.S.A. 8-1014, and amendments thereto, for other cause.
40             (s) Upon motion by a party, or on the court's own motion, the court
41       may enter an order restricting the driving privileges allowed by the tem-
42       porary license provided for in K.S.A. 8-1002, and amendments thereto,
43       and in this section. The temporary license also shall be subject to restric-

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  1       tion, suspension, revocation or cancellation, as set out in K.S.A. 8-1014,
  2       and amendments thereto, or for other cause.
  3             (t) The facts found by the hearing officer or by the district court upon
  4       a petition for review shall be independent of the determination of the
  5       same or similar facts in the adjudication of any criminal charges arising
  6       out of the same occurrence. The disposition of those criminal charges
  7       shall not affect the suspension or suspension and restriction to be imposed
  8       under this section.
  9             (u) All notices affirming or canceling a suspension under this section,
10       all notices of a hearing held under this section and all issuances of tem-
11       porary driving privileges pursuant to this section shall be sent by first-
12       class mail and a United States post office certificate of mailing shall be
13       obtained therefor. All notices so mailed shall be deemed received three
14       days after mailing.
15             (v) The provisions of K.S.A. 60-206, and amendments thereto, re-
16       garding the computation of time shall not be applicable in determining
17       the effective date of suspension set out in this section. "Calendar day"
18       shall mean that every day shall be included in computations of time
19       whether a week day, Saturday, Sunday or holiday. The provisions of
20       K.S.A. 60-206, and amendments thereto, shall apply to the time for filing
21       a petition for review under subsection (o).
22             New Sec.  6. Refusal to submit to a request by a law enforcement
23       officer to submit to a breath, blood or urine test pursuant to K.S.A. 8-
24       1001 or 8-1002, and amendments thereto, shall be a class B misdemeanor.
25             Sec.  7. K.S.A. 1998 Supp. 8-1014 is hereby amended to read as fol-
26       lows: 8-1014. (a) Except as provided by subsection (d) and K.S.A. 8-2,142,
27       and amendments thereto, if a person refuses a test, the division, pursuant
28       to K.S.A. 8-1002, and amendments thereto, shall suspend the person's
29       driving privileges for one year.:
30             (1) On the person's first occurrence, suspend the person's driving
31       privileges for one year;
32             (2) on the person's second occurrence, suspend the person's driving
33       privileges for two years;
34             (3) on the person's third occurrence, suspend the person's driving
35       privileges for three years;
36             (4) on the person's fourth occurrence, suspend the person's driving
37       privileges for ten years; and
38             (5) on the person's fifth or subsequent occurrence, revoke the person's
39       driving privileges permanently.
40             (b) Except as provided by subsection (d) and K.S.A. 8-2,142, and
41       amendments thereto, if a person fails a test or has an alcohol or drug-
42       related conviction in this state, the division shall:
43             (1) On the person's first occurrence, suspend the person's driving

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  1       privileges for 30 days, then restrict the person's driving privileges as pro-
  2       vided by K.S.A. 8-1015, and amendments thereto, for an additional 330
  3       days; and
  4             (2) on the person's second or a subsequent, third or fourth occur-
  5       rence, suspend the person's driving privileges for one year. ; and
  6             (3) on the person's fifth or subsequent occurrence, the person's driv-
  7       ing privileges shall be permanently revoked.
  8             (c) Whenever the division is notified by an alcohol and drug safety
  9       action program that a person has failed to complete any alcohol and drug
10       safety action education or treatment program ordered by a court for a
11       conviction of a violation of K.S.A. 8-1567, and amendments thereto, the
12       division shall suspend the person's driving privileges until the division
13       receives notice of the person's completion of such program.
14             (d) Except as provided in K.S.A. 8-2,142, and amendments thereto,
15       if a person's driving privileges are subject to suspension pursuant to this
16       section for a test refusal, test failure or alcohol or drug-related conviction
17       arising from the same arrest, the period of such suspension shall not
18       exceed the longest applicable period authorized by subsection (a) or (b),
19       and such suspension periods shall not be added together or otherwise
20       imposed consecutively. In addition, in determining the period of such
21       suspension as authorized by subsection (a) or (b), such person shall re-
22       ceive credit for any period of time for which such person's driving privi-
23       leges were suspended while awaiting any hearing or final order authorized
24       by this act.
25             If a person's driving privileges are subject to restriction pursuant to
26       this section for a test failure or alcohol or drug-related conviction arising
27       from the same arrest, the restriction periods shall not be added together
28       or otherwise imposed consecutively. In addition, in determining the pe-
29       riod of restriction, the person shall receive credit for any period of sus-
30       pension imposed for a test refusal arising from the same arrest.
31             (e) If the division has taken action under subsection (a) for a test
32       refusal or under subsection (b) for a test failure and such action is stayed
33       pursuant to K.S.A. 8-259, and amendments thereto, or if temporary driv-
34       ing privileges are issued pursuant to subsection (k) of K.S.A. 8-1002 sec-
35       tion 5, and amendments thereto, the stay or temporary driving privileges
36       shall not prevent the division from taking the action required by subsec-
37       tion (b) for an alcohol or drug-related conviction.
38             (f) Upon restricting a person's driving privileges pursuant to this sec-
39       tion, the division shall issue without charge a driver's license which shall
40       indicate on the face of the license that restrictions have been imposed on
41       the person's driving privileges and that a copy of the order imposing the
42       restrictions is required to be carried by the person for whom the license
43       was issued any time the person is operating a motor vehicle on the high-

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  1       ways of this state.
  2             Sec.  8. K.S.A. 1998 Supp. 8-1567 is hereby amended to read as fol-
  3       lows: 8-1567. (a) No person shall operate or attempt to operate any vehicle
  4       within this state while:
  5             (1) The alcohol concentration in the person's blood or breath as
  6       shown by any competent evidence, including other competent evidence,
  7       as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amend-
  8       ments thereto, is .08 or more;
  9             (2) the alcohol concentration in the person's blood or breath, as meas-
10       ured within two hours of the time of operating or attempting to operate
11       a vehicle, is .08 or more;
12             (3) under the influence of alcohol to a degree that renders the person
13       incapable of safely driving a vehicle;
14             (4) under the influence of any drug or combination of drugs to a
15       degree that renders the person incapable of safely driving a vehicle; or
16             (5) under the influence of a combination of alcohol and any drug or
17       drugs to a degree that renders the person incapable of safely driving a
18       vehicle.
19             (b) No person shall operate or attempt to operate any vehicle within
20       this state if the person is a habitual user of any narcotic, hypnotic, som-
21       nifacient or stimulating drug.
22             (c) If a person is charged with a violation of this section involving
23       drugs, the fact that the person is or has been entitled to use the drug
24       under the laws of this state shall not constitute a defense against the
25       charge.
26             (d) Upon a first conviction of a violation of this section, a person shall
27       be guilty of a class B, nonperson misdemeanor and sentenced to not less
28       than 48 consecutive hours nor more than six months' imprisonment, or
29       in the court's discretion 100 hours of public service, and fined not less
30       than $200 $500 nor more than $500 $1,000. The person convicted must
31       serve at least 48 consecutive hours' imprisonment or 100 hours of public
32       service either before or as a condition of any grant of probation or sus-
33       pension, reduction of sentence or parole. In addition, the court shall enter
34       an order which requires that the person enroll in and successfully com-
35       plete an alcohol and drug safety action education program or treatment
36       program as provided in K.S.A. 8-1008, and amendments thereto, or both
37       the education and treatment programs.
38             (e) On a second conviction of a violation of this section, a person shall
39       be guilty of a class A, nonperson misdemeanor and sentenced to not less
40       than 90 days nor more than one year's imprisonment and fined not less
41       than $500 $1,000 nor more than $1,000. The five days' imprisonment
42       mandated by this subsection may be served in a work release program
43       only after such person has served 48 consecutive hours' imprisonment,

SB 341

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  1       provided such work release program requires such person to return to
  2       confinement at the end of each day in the work release program. Except
  3       as provided in subsection (g), $1,500. The person convicted must serve
  4       at least five 10 consecutive days' imprisonment before the person is
  5       granted probation, suspension or reduction of sentence or parole or is
  6       otherwise released. After 10 consecutive days have been served, the court
  7       may place the person convicted under a work release program provided
  8       such work release program requires such person to return to confinement
  9       at the end of each day in the work release program or under a house
10       arrest program, pursuant to K.S.A. 21-4603b, and amendments thereto,
11       to serve the remainder of the sentence. As a condition of any grant of
12       probation, suspension of sentence or parole or of any other release, the
13       person shall be required to enter into and complete a an inpatient or
14       outpatient treatment program for alcohol and drug abuse as provided in
15       K.S.A. 8-1008, and amendments thereto. An alcohol and drug safety ac-
16       tion education program shall not qualify as a treatment program under
17       this subsection.
18             (f) On the third or a subsequent conviction of a violation of this sec-
19       tion, a person shall be guilty of a nonperson felony and sentenced to not
20       less than 90 120 days nor more than one year's imprisonment and fined
21       not less than $1,000 $1,500 nor more than $2,500. Except as provided in
22       subsection (g), The person convicted shall not be eligible for release on
23       probation, suspension or reduction of sentence or parole until the person
24       has served at least 90 120 days' imprisonment. After 120 consecutive days
25       have been served, the court may place the person convicted under a work
26       release program provided such work release program requires such per-
27       son to return to confinement at the end of each day in the work release
28       program or under a house arrest program, pursuant to K.S.A. 21-4603b,
29       and amendments thereto, to serve the remainder of the sentence. The
30       court may also require as a condition of parole that such person As a
31       condition of any grant of probation, suspension of sentence or parole or
32       of any other release, the person shall be required to enter into and com-
33       plete a an inpatient or outpatient treatment program for alcohol and drug
34       abuse as provided by K.S.A. 8-1008, and amendments thereto. The 90
35       days' imprisonment mandated by this subsection may be served in a work
36       release program only after such person has served 48 consecutive hours'
37       imprisonment, provided such work release program requires such person
38       to return to confinement at the end of each day in the work release
39       program. An alcohol and drug safety action education program shall not
40       qualify as a treatment program under this subsection.
41             (g) On a second or subsequent conviction of a violation of this section,
42       the court may place the person convicted under a house arrest program,
43       pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the re-

SB 341

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  1       mainder of the minimum sentence only after such person has served 48
  2       consecutive hours' imprisonment.
  3             (g) On the fourth or subsequent conviction of a violation of this sec-
  4       tion, a person shall be guilty of a nonperson felony and sentenced to 15
  5       consecutive months imprisonment and fined $2,500. The person convicted
  6       shall not be eligible for parole or reduction of sentence until the person
  7       has served 15 consecutive months imprisonment. The court also shall re-
  8       quire that the person enter into and complete a treatment program for
  9       alcohol and drug abuse as provided by K.S.A. 8-1008, and amendments
10       thereto, and which consists of inpatient and outpatient treatment pro-
11       grams. An alcohol and drug safety action education program shall not
12       qualify as a treatment program under this subsection.
13             (h) Any person convicted of violating this section or an ordinance
14       which prohibits the acts that this section prohibits who had a child under
15       the age of 14 years in the vehicle at the time of the offense shall have his
16       or her punishment enhanced by 30 days of imprisonment. This sentence
17       must run consecutive with other penalties imposed with no possibility of
18       house arrest, work release or other conditional release.
19             (h) (i) The court may establish the terms and time for payment of
20       any fines, fees, assessments and costs imposed pursuant to this section.
21       Any assessment and costs shall be required to be paid not later than 90
22       days after imposed, and any remainder of the fine shall be paid prior to
23       the final release of the defendant by the court.
24             (i) (j) In lieu of payment of a fine imposed pursuant to this section,
25       the court may order that the person perform community service specified
26       by the court. The person shall receive a credit on the fine imposed in an
27       amount equal to $5 for each full hour spent by the person in the specified
28       community service. The community service ordered by the court shall be
29       required to be performed not later than one year after the fine is imposed
30       or by an earlier date specified by the court. If by the required date the
31       person performs an insufficient amount of community service to reduce
32       to zero the portion of the fine required to be paid by the person, the
33       remaining balance of the fine shall become due on that date.
34             (j) (k) The court shall report every conviction of a violation of this
35       section and every diversion agreement entered into in lieu of further
36       criminal proceedings or a complaint alleging a violation of this section to
37       the division. Prior to sentencing under the provisions of this section, the
38       court shall request and shall receive from the division a record of all prior
39       convictions obtained against such person for any violations of any of the
40       motor vehicle laws of this state.
41             (k) (l) For the purpose of determining whether a conviction is a first,
42       second, third or subsequent conviction in sentencing under this section:
43             (1) "Conviction" includes being convicted of a violation of this section

SB 341

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  1       or entering into a diversion agreement in lieu of further criminal pro-
  2       ceedings on a complaint alleging a violation of this section;
  3             (2) "conviction" includes being convicted of a violation of a law of
  4       another state or an ordinance of any city, or resolution of any county,
  5       which prohibits the acts that this section prohibits or entering into a di-
  6       version agreement in lieu of further criminal proceedings in a case alleg-
  7       ing a violation of such law, ordinance or resolution;
  8             (3) only convictions occurring in the immediately preceding five
  9       years, including prior to the effective date of this act, shall be taken into
10       account, but the court may consider other prior convictions in determin-
11       ing the sentence to be imposed within the limits provided for a first,
12       second, third or subsequent offender, whichever is applicable; and
13             (3) any convictions occurring during a person's lifetime shall be taken
14       into account when determining the sentence to be imposed for a first,
15       second, third, fourth or subsequent offender; and
16             (4) it is irrelevant whether an offense occurred before or after con-
17       viction for a previous offense.
18             (l) (m) Upon conviction of a person of a violation of this section or a
19       violation of a city ordinance or county resolution prohibiting the acts
20       prohibited by this section, the division, upon receiving a report of con-
21       viction, shall suspend, restrict or suspend and restrict the person's driving
22       privileges as provided by K.S.A. 8-1014, and amendments thereto.
23             (m) (n) Nothing contained in this section shall be construed as pre-
24       venting any city from enacting ordinances, or any county from adopting
25       resolutions, declaring acts prohibited or made unlawful by this act as
26       unlawful or prohibited in such city or county and prescribing penalties
27       for violation thereof, but the minimum penalty prescribed by any such
28       ordinance or resolution shall not be less than the minimum penalty pre-
29       scribed by this act for the same violation, and the maximum penalty in
30       any such ordinance or resolution shall not exceed the maximum penalty
31       prescribed for the same violation. In addition, any such ordinance or
32       resolution shall authorize the court to order that the convicted person
33       pay restitution to any victim who suffered loss due to the violation for
34       which the person was convicted.
35             (n) (o) No plea bargaining agreement shall be entered into nor shall
36       any judge approve a plea bargaining agreement entered into for the pur-
37       pose of permitting a person charged with a violation of this section, or a
38       violation of any ordinance of a city or resolution of any county in this state
39       which prohibits the acts prohibited by this section, to avoid the mandatory
40       penalties established by this section or by the ordinance. For the purpose
41       of this subsection, entering into a diversion agreement pursuant to K.S.A.
42       12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not
43       constitute plea bargaining.

SB 341

25

  1             (o) (p) The alternatives set out in subsections (a)(1) (2) and (3) par-
  2       agraphs (1), (2) and (3) of subsection (a) may be pleaded in the alternative,
  3       and the state, city or county, but shall not be required to, may elect one
  4       or two of the three prior to submission of the case to the fact finder.
  5             (p) (q) Upon a fourth or subsequent conviction, the judge of any court
  6       in which any person is convicted of violating this section, may revoke the
  7       person's license plate or temporary registration certificate of the motor
  8       vehicle driven during the violation of this section for a period of one year.
  9       Upon revoking any license plate or temporary registration certificate pur-
10       suant to this subsection, the court shall require that such license plate or
11       temporary registration certificate be surrendered to the court.
12             (r) Any person sentenced for a violation of this section shall not be
13       eligible for probation or suspension or modification or reduction of sen-
14       tence. Such person shall not be eligible for parole and such sentence shall
15       not be reduced by good time credits.
16             (q) (s) For the purpose of this section: (1) "Alcohol concentration"
17       means the number of grams of alcohol per 100 milliliters of blood or per
18       210 liters of breath.
19             (2) "Imprisonment" shall include any restrained environment in
20       which the court and law enforcement agency intend to retain custody and
21       control of a defendant and such environment has been approved by the
22       board of county commissioners or the governing body of a city.
23             Sec.  9. K.S.A. 1998 Supp. 21-4704 is hereby amended to read as
24       follows: 21-4704. (a) For purposes of sentencing, the following sentencing
25       guidelines grid for nondrug crimes shall be applied in felony cases for
26       crimes committed on or after July 1, 1993:

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26

SENTENCING RANGE - NONDRUG OFFENSES
Category A B C D E F G H I
Severity
Level		 3 +
Person
Felonies		 2
Person
Felonies		 1 Person &
1 Nonperson
Felonies		 1
Person
Felony		 3 +
Nonperson
Felonies		 2
Nonperson
Felonies		 1
Nonperson
Felony		 2 +
Misdemeanors		 1
Misdemeanor
No Record
I 
816
    776
746
 
772
    732
692
 
356
    340
322
 
334
    316
300
 
308
    292
276
 
282
    268
254
 
254
    244
230
 
232
    220
208
 
206
    194
       184
II 
616
    584
552
 
576
    548
520
 
270
    256
242
 
250
    238
226
 
230
    218
206
 
210
    200
190
 
192
    182
172
 
172
    64
154
 
154
    146
       136
III 
206
    194
184
 
190
    180
172
 
89
    85
80
 
83
    78
74
 
77
     73
68
 
69
    66
62
 
64
    60
57
 
59
    55
51
 
51
    49
        46
IV 
172
    162
154
 
162
    154
144
 
75
    71
68
 
69
    66
62
 
64
     60
57
 
59
    56
52
 
52
    50
47
 
48
    45
42
 
43
    41
        38
V 
136
    130
122
 
128
    120
114
 
60
    57
53
 
55
    52
50
 
51
    49
46
 
47
    44
41
 
43
    41
38
 
38
    36
34
 
34
    32
        31
VI 
46
    43
40
 
41
    39
37
 
38
    36
34
 
36
    34
32
 
32
    30
28
 
29
    27
25
 
26
    24
22
 
21
    20
19
 
19
    18
        17
VII 
34
    32
30
 
31
    29
27
 
29
    27
25
 
26
    24
22
 
23
    21
19
 
19
    18
17
 
17
    16
15
 
14
    13
12
 
13
    12
        11
VIII 
23
    21
19
 
20
    19
18
 
19
    18
17
 
17
    16
15
 
15
    14
13
 
13
    12
11
 
11
    10
9
 
11
    10
9
 
9
    8
         7
IX 
17
    16
15
 
15
    14
13
 
13
    12
11
 
13
    12
11
 
11
    10
9
 
10
    9
8
 
9
    8
7
 
8
    7
6
 
7
    6
         5
X 
13
    12
11
 
12
    11
10
 
11
    10
9
 
10
    9
8
 
9
    8
7
 
8
    7
6
 
7
    6
5
 
7
    6
5
 
7
    6
         5

LEGEND
Presumptive Probation
Border Box
Presumptive Imprisonment
  1      

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  1             (b) The provisions of this section shall be applicable to the sentencing
  2       guidelines grid for nondrug crimes. Sentences expressed in such grid
  3       represent months of imprisonment.
  4             (c) The sentencing guidelines grid is a two-dimensional crime severity
  5       and criminal history classification tool. The grid's vertical axis is the crime
  6       severity scale which classifies current crimes of conviction. The grid's
  7       horizontal axis is the criminal history scale which classifies criminal
  8       histories.
  9             (d) The sentencing guidelines grid for nondrug crimes as provided in
10       this section defines presumptive punishments for felony convictions, sub-
11       ject to judicial discretion to deviate for substantial and compelling reasons
12       and impose a different sentence in recognition of aggravating and miti-
13       gating factors as provided in this act. The appropriate punishment for a
14       felony conviction should depend on the severity of the crime of conviction
15       when compared to all other crimes and the offender's criminal history.
16             (e)  (1) The sentencing court has discretion to sentence at any place
17       within the sentencing range. The sentencing judge shall select the center
18       of the range in the usual case and reserve the upper and lower limits for
19       aggravating and mitigating factors insufficient to warrant a departure.
20             (2) In presumptive imprisonment cases, the sentencing court shall
21       pronounce the complete sentence which shall include the prison sen-
22       tence, the maximum potential reduction to such sentence as a result of
23       good time and the period of postrelease supervision at the sentencing
24       hearing. Failure to pronounce the period of postrelease supervision shall
25       not negate the existence of such period of postrelease supervision.
26             (3) In presumptive nonprison cases, the sentencing court shall pro-
27       nounce the prison sentence as well as the duration of the nonprison sanc-
28       tion at the sentencing hearing.
29             (f) Each grid block states the presumptive sentencing range for an
30       offender whose crime of conviction and criminal history place such of-
31       fender in that grid block. If an offense is classified in a grid block below
32       the dispositional line, the presumptive disposition shall be nonimprison-
33       ment. If an offense is classified in a grid block above the dispositional
34       line, the presumptive disposition shall be imprisonment. If an offense is
35       classified in grid blocks 5-H, 5-I or 6-G, the court may impose an optional
36       nonprison sentence upon making the following findings on the record:
37             (1) An appropriate treatment program exists which is likely to be
38       more effective than the presumptive prison term in reducing the risk of
39       offender recidivism; and
40             (2) the recommended treatment program is available and the of-
41       fender can be admitted to such program within a reasonable period of
42       time; or
43             (3) the nonprison sanction will serve community safety interests by

SB 341

28

  1       promoting offender reformation.
  2             Any decision made by the court regarding the imposition of an optional
  3       nonprison sentence if the offense is classified in grid blocks 5-H, 5-I or
  4       6-G shall not be considered a departure and shall not be subject to appeal.
  5             (g) The sentence for the violation of K.S.A. 21-3411, aggravated as-
  6       sault against a law enforcement officer or K.S.A. 21-3415, aggravated
  7       battery against a law enforcement officer and amendments thereto which
  8       places the defendant's sentence in grid block 6-H or 6-I shall be pre-
  9       sumed imprisonment. The court may impose an optional nonprison sen-
10       tence upon making a finding on the record that the nonprison sanction
11       will serve community safety interests by promoting offender reformation.
12       Any decision made by the court regarding the imposition of the optional
13       nonprison sentence, if the offense is classified in grid block 6-H or 6-I,
14       shall not be considered departure and shall not be subject to appeal.
15             (h) When a firearm is used to commit any person felony, the of-
16       fender's sentence shall be presumed imprisonment. The court may im-
17       pose an optional nonprison sentence upon making a finding on the record
18       that the nonprison sanction will serve community safety interests by pro-
19       moting offender reformation. Any decision made by the court regarding
20       the imposition of the optional nonprison sentence shall not be considered
21       a departure and shall not be subject to appeal.
22             (i) The sentence for the violation of the felony provision of K.S.A. 8-
23       1567 and subsection (b) of K.S.A. 21-3705, and amendments thereto shall
24       be as provided by the specific mandatory sentencing requirements of that
25       section and shall not be subject to the provisions of this section or K.S.A.
26       21-4707 and amendments thereto. Notwithstanding the provisions of any
27       other section, the term of imprisonment imposed for the violation of the
28       felony provision of K.S.A. 8-1567 and subsection (b) of K.S.A. 21-3705,
29       and amendments thereto shall not be served in a state facility in the
30       custody of the secretary of corrections. The term of imprisonment imposed
31       for the fourth or subsequent violation of felony provision K.S.A. 8-1567,
32       and amendments thereto, shall be served in a state facility in the custody
33       of the secretary of corrections.
34             (j) The sentence for any persistent sex offender whose current con-
35       victed crime carries a presumptive term of imprisonment shall be double
36       the maximum duration of the presumptive imprisonment term. The sen-
37       tence for any persistent sex offender whose current conviction carries a
38       presumptive nonprison term shall be presumed imprisonment and shall
39       be double the maximum duration of the presumptive imprisonment term.
40       Except as otherwise provided in this subsection, as used in this subsection,
41       "persistent sex offender" means a person who: (1) Has been convicted in
42       this state of a sexually violent crime, as defined in K.S.A. 22-3717, and
43       amendments thereto; and (2) at the time of the conviction under subsec-

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  1       tion (1) has at least one conviction for a sexually violent crime, as defined
  2       in K.S.A. 22-3717, and amendments thereto in this state or comparable
  3       felony under the laws of another state, the federal government or a for-
  4       eign government. The provisions of this subsection shall not apply to any
  5       person whose current convicted crime is a severity level 1 or 2 felony.
  6             (k) If it is shown at sentencing that the offender committed any felony
  7       violation for the benefit of, at the direction of, or in association with any
  8       criminal street gang, with the specific intent to promote, further or assist
  9       in any criminal conduct by gang members, the offender's sentence shall
10       be presumed imprisonment. Any decision made by the court regarding
11       the imposition of the optional nonprison sentence shall not be considered
12       a departure and shall not be subject to appeal. As used in this subsection,
13       "criminal street gang" means any organization, association or group of
14       three or more persons, whether formal or informal, having as one of its
15       primary activities the commission of one or more person felonies or felony
16       violations of the uniform controlled substances act, K.S.A. 65-4101 et seq.,
17       and amendments thereto, which has a common name or common iden-
18       tifying sign or symbol, whose members, individually or collectively engage
19       in or have engaged in the commission, attempted commission, conspiracy
20       to commit or solicitation of two or more person felonies or felony viola-
21       tions of the uniform controlled substances act, K.S.A. 65-4101 et seq.,
22       and amendments thereto, or any substantially similar offense from an-
23       other jurisdiction.
24             Sec.  10. K.S.A. 1998 Supp. 22-3717 is hereby amended to read as
25       follows: 22-3717. (a) Except as otherwise provided by this section, K.S.A.
26       1993 Supp. 21-4628 prior to its repeal and K.S.A. 21-4618, 21-4635
27       through 21-4638 and amendments thereto, an inmate, including an in-
28       mate sentenced pursuant to K.S.A. 21-4618, 8-1567, and amendments
29       thereto, shall be eligible for parole after serving the entire minimum
30       sentence imposed by the court, less good time credits.
31             (b)  (1) Except as provided by K.S.A. 21-4635 through 21-4638 and
32       amendments thereto, an inmate sentenced to imprisonment for the crime
33       of capital murder, or an inmate sentenced for the crime of murder in the
34       first degree based upon a finding of premeditated murder, committed on
35       or after July 1, 1994, shall be eligible for parole after serving 25 years of
36       confinement, without deduction of any good time credits.
37             (2) Except as provided by subsection (b)(1) or (b)(4), K.S.A. 1993
38       Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through 21-4638,
39       and amendments thereto, an inmate sentenced to imprisonment for an
40       off-grid offense committed on or after July 1, 1993, shall be eligible for
41       parole after serving 15 years of confinement, without deduction of any
42       good time credits.
43             (3) Except as provided by K.S.A. 1993 Supp. 21-4628 prior to its

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  1       repeal, an inmate sentenced for a class A felony committed before July
  2       1, 1993, including an inmate sentenced pursuant to K.S.A. 21-4618 and
  3       amendments thereto, shall be eligible for parole after serving 15 years of
  4       confinement, without deduction of any good time credits.
  5             (4) An inmate sentenced to imprisonment for a violation of subsec-
  6       tion (a) of K.S.A. 21-3402 and amendments thereto committed on or after
  7       July 1, 1996, shall be eligible for parole after serving 10 years of confine-
  8       ment without deduction of any good time credits.
  9             (c) Except as provided in subsection (e), if an inmate is sentenced to
10       imprisonment for more than one crime and the sentences run consecu-
11       tively, the inmate shall be eligible for parole after serving the total of:
12             (1) The aggregate minimum sentences, as determined pursuant to
13       K.S.A. 21-4608 and amendments thereto, less good time credits for those
14       crimes which are not class A felonies; and
15             (2) an additional 15 years, without deduction of good time credits,
16       for each crime which is a class A felony.
17             (d)  (1) Persons sentenced for crimes, other than off-grid crimes,
18       committed on or after July 1, 1993, will not be eligible for parole, but will
19       be released to a mandatory period of postrelease supervision upon com-
20       pletion of the prison portion of their sentence as follows:
21             (A) Except as provided in subparagraphs (C) and (D), persons sen-
22       tenced for nondrug severity level 1 through 6 crimes and drug severity
23       levels 1 through 3 crimes must serve 36 months, plus the amount of good
24       time earned and retained pursuant to K.S.A. 21-4722 and amendments
25       thereto, on postrelease supervision.
26             (B) Except as provided in subparagraphs (C) and (D), persons sen-
27       tenced for nondrug severity level 7 through 10 crimes and drug severity
28       level 4 crimes must serve 24 months, plus the amount of good time earned
29       and retained pursuant to K.S.A. 21-4722 and amendments thereto, on
30       postrelease supervision.
31             (C)  (i) The sentencing judge shall impose the postrelease supervision
32       period provided in subparagraph (d)(1)(A) or (d)(1)(B), unless the judge
33       finds substantial and compelling reasons to impose a departure based
34       upon a finding that the current crime of conviction was sexually violent
35       or sexually motivated. In that event, departure may be imposed to extend
36       the postrelease supervision to a period of up to 60 months.
37             (ii) If the sentencing judge departs from the presumptive postrelease
38       supervision period, the judge shall state on the record at the time of
39       sentencing the substantial and compelling reasons for the departure. De-
40       partures in this section are subject to appeal pursuant to K.S.A. 21-4721
41       and amendments thereto.
42             (iii) In determining whether substantial and compelling reasons exist,
43       the court shall consider:

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  1             (a) Written briefs or oral arguments submitted by either the defend-
  2       ant or the state;
  3             (b) any evidence received during the proceeding;
  4             (c) the presentence report, the victim's impact statement and any
  5       psychological evaluation as ordered by the court pursuant to subsection
  6       (e) of K.S.A. 21-4714 and amendments thereto; and
  7             (d) any other evidence the court finds trustworthy and reliable.
  8             (iv) The sentencing judge may order that a psychological evaluation
  9       be prepared and the recommended programming be completed by the
10       offender. The department of corrections or the parole board shall ensure
11       that court ordered sex offender treatment be carried out.
12             (v) In carrying out the provisions of subparagraph (d)(1)(C), the court
13       shall refer to K.S.A. 21-4718 and amendments thereto.
14             (vi) Upon petition, the parole board may provide for early discharge
15       from the postrelease supervision period upon completion of court or-
16       dered programs and completion of the presumptive postrelease super-
17       vision period, as determined by the crime of conviction, pursuant to sub-
18       paragraph (d)(1)(A) or (B). Early discharge from postrelease supervision
19       is at the discretion of the parole board.
20             (vii) Persons convicted of crimes deemed sexually violent or sexually
21       motivated, shall be registered according to the habitual sex offender reg-
22       istration act, K.S.A. 22-4901 through 22-4910 and amendments thereto.
23             (D) The period of postrelease supervision provided in subparagraphs
24       (A) and (B) may be reduced by up to 12 months based on the offender's
25       compliance with conditions of supervision and overall performance while
26       on postrelease supervision. The reduction in the supervision period shall
27       be on an earned basis pursuant to rules and regulations adopted by the
28       secretary of corrections.
29             (E) In cases where sentences for crimes from more than one severity
30       level have been imposed, the offender shall serve the longest period of
31       postrelease supervision as provided by this section available for any crime
32       upon which sentence was imposed irrespective of the severity level of the
33       crime. Supervision periods will not aggregate.
34             (2) As used in this section, "sexually violent crime" means:
35             (A) Rape, K.S.A. 21-3502, and amendments thereto;
36             (B) indecent liberties with a child, K.S.A. 21-3503, and amendments
37       thereto;
38             (C) aggravated indecent liberties with a child, K.S.A. 21-3504, and
39       amendments thereto;
40             (D) criminal sodomy, subsection (a)(2) and (a)(3) of K.S.A. 21-3505
41       and amendments thereto;
42             (E) aggravated criminal sodomy, K.S.A. 21-3506, and amendments
43       thereto;

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  1             (F) indecent solicitation of a child, K.S.A. 21-3510, and amendments
  2       thereto;
  3             (G) aggravated indecent solicitation of a child, K.S.A. 21-3511, and
  4       amendments thereto;
  5             (H) sexual exploitation of a child, K.S.A. 21-3516, and amendments
  6       thereto;
  7             (I) aggravated sexual battery, K.S.A. 21-3518, and amendments
  8       thereto;
  9             (J) any conviction for a felony offense in effect at any time prior to
10       the effective date of this act, that is comparable to a sexually violent crime
11       as defined in subparagraphs (A) through (I), or any federal or other state
12       conviction for a felony offense that under the laws of this state would be
13       a sexually violent crime as defined in this section;
14             (K) an attempt, conspiracy or criminal solicitation, as defined in
15       K.S.A. 21-3301, 21-3302, 21-3303, and amendments thereto, of a sexually
16       violent crime as defined in this section; or
17             (L) any act which at the time of sentencing for the offense has been
18       determined beyond a reasonable doubt to have been sexually motivated.
19       As used in this subparagraph, "sexually motivated" means that one of the
20       purposes for which the defendant committed the crime was for the pur-
21       pose of the defendant's sexual gratification.
22             (e) If an inmate is sentenced to imprisonment for a crime committed
23       while on parole or conditional release, the inmate shall be eligible for
24       parole as provided by subsection (c), except that the Kansas parole board
25       may postpone the inmate's parole eligibility date by assessing a penalty
26       not exceeding the period of time which could have been assessed if the
27       inmate's parole or conditional release had been violated for reasons other
28       than conviction of a crime.
29             (f) If a person is sentenced to prison for a crime committed on or
30       after July 1, 1993, while on probation, parole, conditional release or in a
31       community corrections program, for a crime committed prior to July 1,
32       1993, and the person is not eligible for retroactive application of the
33       sentencing guidelines and amendments thereto pursuant to K.S.A. 21-
34       4724 and amendments thereto, the new sentence shall not be aggregated
35       with the old sentence, but shall begin when the person is paroled or
36       reaches the conditional release date on the old sentence. If the offender
37       was past the offender's conditional release date at the time the new of-
38       fense was committed, the new sentence shall not be aggregated with the
39       old sentence but shall begin when the person is ordered released by the
40       Kansas parole board or reaches the maximum sentence expiration date
41       on the old sentence, whichever is earlier. The new sentence shall then
42       be served as otherwise provided by law. The period of postrelease su-
43       pervision shall be based on the new sentence, except that those offenders

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  1       whose old sentence is a term of imprisonment for life, imposed pursuant
  2       to K.S.A. 1993 Supp. 21-4628 prior to its repeal, or an indeterminate
  3       sentence with a maximum term of life imprisonment, for which there is
  4       no conditional release or maximum sentence expiration date, shall remain
  5       on postrelease supervision for life or until discharged from supervision
  6       by the Kansas parole board.
  7             (g) Subject to the provisions of this section, the Kansas parole board
  8       may release on parole those persons confined in institutions who are el-
  9       igible for parole when: (1) The board believes that the inmate should be
10       released for hospitalization, for deportation or to answer the warrant or
11       other process of a court and is of the opinion that there is reasonable
12       probability that the inmate can be released without detriment to the com-
13       munity or to the inmate; or (2) the secretary of corrections has reported
14       to the board in writing that the inmate has satisfactorily completed the
15       programs required by any agreement entered under K.S.A. 75-5210a and
16       amendments thereto, or any revision of such agreement, and the board
17       believes that the inmate is able and willing to fulfill the obligations of a
18       law abiding citizen and is of the opinion that there is reasonable proba-
19       bility that the inmate can be released without detriment to the community
20       or to the inmate. Parole shall not be granted as an award of clemency and
21       shall not be considered a reduction of sentence or a pardon.
22             (h) The Kansas parole board shall hold a parole hearing at least the
23       month prior to the month an inmate will be eligible for parole under
24       subsections (a), (b) and (c). At least the month preceding the parole hear-
25       ing, the county or district attorney of the county where the inmate was
26       convicted shall give written notice of the time and place of the public
27       comment sessions for the inmate to any victim of the inmate's crime who
28       is alive and whose address is known to the county or district attorney or,
29       if the victim is deceased, to the victim's family if the family's address is
30       known to the county or district attorney. Except as otherwise provided,
31       failure to notify pursuant to this section shall not be a reason to postpone
32       a parole hearing. In the case of any inmate convicted of a class A felony
33       the secretary of corrections shall give written notice of the time and place
34       of the public comment session for such inmate at least one month pre-
35       ceding the public comment session to any victim of such inmate's crime
36       or the victim's family pursuant to K.S.A. 74-7338 and amendments
37       thereto. If notification is not given to such victim or such victim's family
38       in the case of any inmate convicted of a class A felony, the board shall
39       postpone a decision on parole of the inmate to a time at least 30 days
40       after notification is given as provided in this section. Nothing in this sec-
41       tion shall create a cause of action against the state or an employee of the
42       state acting within the scope of the employee's employment as a result
43       of the failure to notify pursuant to this section. If granted parole, the

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  1       inmate may be released on parole on the date specified by the board, but
  2       not earlier than the date the inmate is eligible for parole under subsec-
  3       tions (a), (b) and (c). At each parole hearing and, if parole is not granted,
  4       at such intervals thereafter as it determines appropriate, the Kansas parole
  5       board shall consider: (1) Whether the inmate has satisfactorily completed
  6       the programs required by any agreement entered under K.S.A. 75-5210a
  7       and amendments thereto, or any revision of such agreement; and (2) all
  8       pertinent information regarding such inmate, including, but not limited
  9       to, the circumstances of the offense of the inmate; the presentence report;
10       the previous social history and criminal record of the inmate; the conduct,
11       employment, and attitude of the inmate in prison; the reports of such
12       physical and mental examinations as have been made; comments of the
13       victim and the victim's family; comments of the public; official comments;
14       and capacity of state correctional institutions.
15             (i) In those cases involving inmates sentenced for a crime committed
16       after July 1, 1993, the parole board will review the inmates proposed
17       release plan. The board may schedule a hearing if they desire. The board
18       may impose any condition they deem necessary to insure public safety,
19       aid in the reintegration of the inmate into the community, or items not
20       completed under the agreement entered into under K.S.A. 75-5210a and
21       amendments thereto. The board may not advance or delay an inmate's
22       release date. Every inmate while on postrelease supervision shall remain
23       in the legal custody of the secretary of corrections and is subject to the
24       orders of the secretary.
25             (j) Before ordering the parole of any inmate, the Kansas parole board
26       shall have the inmate appear before either in person or via a video con-
27       ferencing format and shall interview the inmate unless impractical be-
28       cause of the inmate's physical or mental condition or absence from the
29       institution. Every inmate while on parole shall remain in the legal custody
30       of the secretary of corrections and is subject to the orders of the secretary.
31       Whenever the Kansas parole board formally considers placing an inmate
32       on parole and no agreement has been entered into with the inmate under
33       K.S.A. 75-5210a and amendments thereto, the board shall notify the in-
34       mate in writing of the reasons for not granting parole. If an agreement
35       has been entered under K.S.A. 75-5210a and amendments thereto and
36       the inmate has not satisfactorily completed the programs specified in the
37       agreement, or any revision of such agreement, the board shall notify the
38       inmate in writing of the specific programs the inmate must satisfactorily
39       complete before parole will be granted. If parole is not granted only
40       because of a failure to satisfactorily complete such programs, the board
41       shall grant parole upon the secretary's certification that the inmate has
42       successfully completed such programs. If an agreement has been entered
43       under K.S.A. 75-5210a and amendments thereto and the secretary of

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  1       corrections has reported to the board in writing that the inmate has sat-
  2       isfactorily completed the programs required by such agreement, or any
  3       revision thereof, the board shall not require further program participa-
  4       tion. However, if the board determines that other pertinent information
  5       regarding the inmate warrants the inmate's not being released on parole,
  6       the board shall state in writing the reasons for not granting the parole. If
  7       parole is denied for an inmate sentenced for a crime other than a class A
  8       or class B felony or an off-grid felony, the board shall hold another parole
  9       hearing for the inmate not later than one year after the denial unless the
10       parole board finds that it is not reasonable to expect that parole would
11       be granted at a hearing if held in the next three years or during the interim
12       period of a deferral. In such case, the parole board may defer subsequent
13       parole hearings for up to three years but any such deferral by the board
14       shall require the board to state the basis for its findings. If parole is denied
15       for an inmate sentenced for a class A or class B felony or an off-grid
16       felony, the board shall hold another parole hearing for the inmate not
17       later than three years after the denial unless the parole board finds that
18       it is not reasonable to expect that parole would be granted at a hearing if
19       held in the next 10 years or during the interim period of a deferral. In
20       such case, the parole board may defer subsequent parole hearings for up
21       to 10 years but any such deferral shall require the board to state the basis
22       for its findings.
23             (k) Parolees and persons on postrelease supervision shall be assigned,
24       upon release, to the appropriate level of supervision pursuant to the cri-
25       teria established by the secretary of corrections.
26             (l) The Kansas parole board shall adopt rules and regulations in ac-
27       cordance with K.S.A. 77-415 et seq., and amendments thereto, not in-
28       consistent with the law and as it may deem proper or necessary, with
29       respect to the conduct of parole hearings, postrelease supervision reviews,
30       revocation hearings, orders of restitution, reimbursement of expenditures
31       by the state board of indigents' defense services and other conditions to
32       be imposed upon parolees or releasees. Whenever an order for parole or
33       postrelease supervision is issued it shall recite the conditions thereof.
34             (m) Whenever the Kansas parole board orders the parole of an in-
35       mate or establishes conditions for an inmate placed on postrelease su-
36       pervision, the board:
37             (1) Unless it finds compelling circumstances which would render a
38       plan of payment unworkable, shall order as a condition of parole or post-
39       release supervision that the parolee or the person on postrelease super-
40       vision pay any transportation expenses resulting from returning the pa-
41       rolee or the person on postrelease supervision to this state to answer
42       criminal charges or a warrant for a violation of a condition of probation,
43       assignment to a community correctional services program, parole, con-

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  1       ditional release or postrelease supervision;
  2             (2) to the extent practicable, shall order as a condition of parole or
  3       postrelease supervision that the parolee or the person on postrelease su-
  4       pervision make progress towards or successfully complete the equivalent
  5       of a secondary education if the inmate has not previously completed such
  6       educational equivalent and is capable of doing so;
  7             (3) may order that the parolee or person on postrelease supervision
  8       perform community or public service work for local governmental agen-
  9       cies, private corporations organized not-for-profit or charitable or social
10       service organizations performing services for the community;
11             (4) may order the parolee or person on postrelease supervision to pay
12       the administrative fee imposed pursuant to K.S.A. 1998 Supp. 22-4529,
13       and amendments thereto, unless the board finds compelling circum-
14       stances which would render payment unworkable; and
15             (5) unless it finds compelling circumstances which would render a
16       plan of payment unworkable, shall order that the parolee or person on
17       postrelease supervision reimburse the state for all or part of the expend-
18       itures by the state board of indigents' defense services to provide counsel
19       and other defense services to the person. In determining the amount and
20       method of payment of such sum, the parole board shall take account of
21       the financial resources of the person and the nature of the burden that
22       the payment of such sum will impose. Such amount shall not exceed the
23       amount claimed by appointed counsel on the payment voucher for indi-
24       gents' defense services or the amount prescribed by the board of indi-
25       gents' defense services reimbursement tables as provided in K.S.A. 22-
26       4522 and amendments thereto, whichever is less, minus any previous
27       payments for such services.
28             (n) If the court which sentenced an inmate specified at the time of
29       sentencing the amount and the recipient of any restitution ordered as a
30       condition of parole or postrelease supervision, the Kansas parole board
31       shall order as a condition of parole or postrelease supervision that the
32       inmate pay restitution in the amount and manner provided in the journal
33       entry unless the board finds compelling circumstances which would ren-
34       der a plan of restitution unworkable.
35             (o) Whenever the Kansas parole board grants the parole of an inmate,
36       the board, within 10 days of the date of the decision to grant parole, shall
37       give written notice of the decision to the county or district attorney of the
38       county where the inmate was sentenced.
39             (p) When an inmate is to be released on postrelease supervision, the
40       secretary, within 30 days prior to release, shall provide the county or
41       district attorney of the county where the inmate was sentenced written
42       notice of the release date.
43             (q) Inmates shall be released on postrelease supervision upon the

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  1       termination of the prison portion of their sentence. Time served while
  2       on postrelease supervision will vest.
  3             (r) An inmate who is allocated regular good time credits as provided
  4       in K.S.A. 22-3725 and amendments thereto may receive meritorious good
  5       time credits in increments of not more than 90 days per meritorious act.
  6       These credits may be awarded by the secretary of corrections when an
  7       inmate has acted in a heroic or outstanding manner in coming to the
  8       assistance of another person in a life threatening situation, preventing
  9       injury or death to a person, preventing the destruction of property or
10       taking actions which result in a financial savings to the state.
11             Sec.  11. K.S.A. 1998 Supp. 65-1,107 is hereby amended to read as
12       follows: 65-1,107. The secretary of health and environment may adopt
13       rules and regulations establishing:
14             (a) The procedures, testing protocols and qualifications of authorized
15       personnel, instruments and methods used in laboratories performing tests
16       for the presence of controlled substances included in schedule I or II of
17       the uniform controlled substances act or metabolites thereof;
18             (b) the procedures, testing protocols, qualifications of personnel and
19       standards of performance in the testing of human breath for law enforce-
20       ment purposes, including procedures for the periodic inspection of ap-
21       paratus, equipment and devices, other than preliminary screening de-
22       vices, approved by the secretary of health and environment for the testing
23       of human breath for law enforcement purposes;
24             (c) the requirements for the training, certification and periodic test-
25       ing of persons who operate apparatus, equipment or devices, other than
26       preliminary screening devices, for the testing of human breath for law
27       enforcement purposes;
28             (d) criteria for preliminary screening devices for testing of breath for
29       law enforcement purposes, based on health and performance considera-
30       tions; and
31             (e) a list of preliminary screening devices which are approved for
32       testing of breath for law enforcement purposes and which law enforce-
33       ment agencies may purchase and train officers to use as aids in deter-
34       mining probable cause to arrest and grounds for requiring testing pur-
35       suant to K.S.A. 8-1001 and amendments thereto. 
36       Sec.  12. K.S.A. 8-2,145 and K.S.A. 1998 Supp. 8-241, 8-1001, 8-
37       1002, 8-1014, 8-1567, 21-4704, 22-3717 and 65-1,107 are hereby
38       repealed.
39        Sec.  13. This act shall take effect and be in force from and after its
40       publication in the statute book.