As Amended by House Committee
As Amended by Senate Committee
Session of 1999
SENATE BILL No. 4
By Special Committee on Judiciary
12-15
11 AN ACT
concerning criminal procedure; relating to
crimes, punish-
12 ment and criminal
procedure; expungement; arrest records;
13 driver's license
restrictions for alcohol and drug-related of-
14 fenses;
amending K.S.A. 1998 Supp. 8-1014, 8-1015, 8-1016, 12-
15 4516
and, 12-4516a, 21-4619 and
22-2410 and repealing the existing
16 sections.
17
18 Be it enacted by the Legislature of the
State of Kansas:
19 Section 1. K.S.A. 1998
Supp. 8-1014 is hereby amended to
20 read as follows: 8-1014. (a) Except as
provided by subsection (d)
21 and K.S.A. 8-2,142, and amendments
thereto, if a person refuses a
22 test, the division, pursuant to K.S.A.
8-1002, and amendments
23 thereto, shall suspend the person's
driving privileges for one year.
24 (b) Except as
provided by subsection (d) and K.S.A. 8-2,142,
25 and amendments thereto, if a person
fails a test or has an alcohol
26 or drug-related conviction in this
state, the division shall:
27 (1) If
the person had an alcohol concentration of less than .15 in
the
28 person's blood or breath, on the
person's first occurrence, suspend
29 the person's driving privileges for 30
days, then restrict the per-
30 son's driving privileges as provided by
K.S.A. 8-1015, and amend-
31 ments thereto, for an additional 330
days; and
32 (2) if
the person had an alcohol concentration of .15 or more in
the
33 person's blood or breath, on the
person's first occurrence, suspend the
34 person's driving privilege for 30 days and
restrict the person's driving
35 privileges for 330 days to driving only a
motor vehicle equipped with an
36 ignition interlock device;
37 (2)
(3) on the person's second or a subsequent occurrence,
sus-
38 pend the person's driving privileges for
one year and restrict the
39 person's driving privileges for one year
in accordance with K.S.A. 8-1015,
40 and amendments thereto, and restrict the
person's driving privileges for
41 one year to driving only a motor vehicle
equipped with an ignition inter-
42 lock device. Any time period of ignition
interlock restriction shall be cred-
SB 4--Am. by H
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1 ited to the one year minimum
reinstatement time period.
2
(c) Whenever the division is notified by an alcohol and
drug
3 safety action program that a
person has failed to complete any
4 alcohol and drug safety action
education or treatment program
5 ordered by a court for a
conviction of a violation of K.S.A. 8-1567,
6 and amendments thereto, the
division shall suspend the person's
7 driving privileges until the
division receives notice of the person's
8 completion of such
program.
9
(d) Except as provided in K.S.A. 8-2,142, and
amendments
10 thereto, if a person's driving
privileges are subject to suspension
11 pursuant to this section for a test
refusal, test failure or alcohol or
12 drug-related conviction arising from the
same arrest, the period
13 of such suspension shall not exceed the
longest applicable period
14 authorized by subsection (a) or (b), and
such suspension periods
15 shall not be added together or otherwise
imposed consecutively.
16 In addition, in determining the period
of such suspension as au-
17 thorized by subsection (a) or (b), such
person shall receive credit
18 for any period of time for which such
person's driving privileges
19 were suspended while awaiting any
hearing or final order author-
20 ized by this act.
21 If a person's
driving privileges are subject to restriction pursu-
22 ant to this section for a test failure
or alcohol or drug-related con-
23 viction arising from the same arrest,
the restriction periods shall
24 not be added together or otherwise
imposed consecutively. In ad-
25 dition, in determining the period of
restriction, the person shall
26 receive credit for any period of
suspension imposed for a test re-
27 fusal arising from the same
arrest.
28 (e) If the
division has taken action under subsection (a) for a
29 test refusal or under subsection (b) for
a test failure and such ac-
30 tion is stayed pursuant to K.S.A. 8-259,
and amendments thereto,
31 or if temporary driving privileges are
issued pursuant to subsec-
32 tion (k) of K.S.A. 8-1002, and
amendments thereto, the stay or tem-
33 porary driving privileges shall not
prevent the division from taking
34 the action required by subsection (b)
for an alcohol or drug-related
35 conviction.
36 (f) Upon
restricting a person's driving privileges pursuant to
37 this section or K.S.A. 8-262, and
amendments thereto, the division
38 shall issue without
for a charge of $25 a driver's license
which shall
39 indicate on the face of the license that
restrictions have been im-
40 posed on the person's driving privileges
and that a copy of the
41 order imposing the restrictions is
required to be carried by the
42 person for whom the license was issued
any time the person is
43 operating a motor vehicle on the
highways of this state.
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1
(g) Any person whose license is restricted to operating
only a motor
2 vehicle with an ignition interlock
device installed may operate an em-
3 ployer's vehicle without an
ignition interlock device installed during nor-
4 mal business activities, provided
that the person does not partly or entirely
5 own or control the employer's
vehicle or business.
6
(h) Whenever the division is notified by a certified ignition
interlock
7 manufacturer or an authorized
representative of the manufacturer that
8 any person whose license is
restricted to the use of an ignition interlock
9 has failed to comply with the
rules and regulations adopted by the division
10 under K.S.A. 8-1016, and amendments
thereto, the division shall suspend
11 the person's driving privileges until
the division receives notice of the
12 person's compliance with the ignition
interlock program.
13 Sec.
2. K.S.A. 1998 Supp. 8-1015 is hereby amended to read
14 as follows: 8-1015. (a) When subsection
(b)(1) of K.S.A. 8-1014, and
15 amendments thereto, requires or
authorizes the division to place
16 restrictions on a person's driving
privileges, the division shall re-
17 strict the person's driving privileges
to driving only under the cir-
18 cumstances provided by subsections
(a)(1), (2), (3) and (4) of K.S.A.
19 8-292 and amendments thereto.
20 (b) In lieu of
the restrictions set out in subsection (a), the di-
21 vision, upon request of the person whose
driving privileges are to
22 be restricted, may restrict the person's
driving privileges to driving
23 only a motor vehicle equipped with an
ignition interlock device,
24 approved by the division and obtained,
installed and maintained
25 at the person's expense.
26
(c) When subsection (b) of K.S.A. 8-262, and amendments
thereto,
27 and subsections (b)(2) and (b)(3) of
K.S.A. 8-1014, and amendments
28 thereto, require or authorize the
division to place restrictions on a person's
29 driving privileges, the division shall
restrict the person's driving privileges
30 to driving only a motor vehicle equipped
with an ignition interlock device,
31 approved by the division and maintained
at the person's expense and may
32 require driving only under circumstances
provided by K.S.A. 8-292, and
33 amendments thereto. The division shall
not issue the restricted license
34 under this subsection until the person
has provided proof of installation
35 of an approved ignition interlock
device.
36 (c) Upon
a person's second or subsequent conviction for an
alcohol
37 related offense, if the person had
an alcohol concentration of .15 or more
38 in the person's blood or breath,
the convicting court shall restrict the
39 person's driving privileges to
driving only a motor vehicle equipped with
40 an ignition interlock device,
approved by the division and obtained, in-
41 stalled and maintained at the
person's expense.
42 (d) Upon
expiration of the period of time for which restrictions
43 are imposed pursuant to this section,
the licensee may apply to the
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1 division for the return of any
license previously surrendered by
2 the licensee. If the license has
expired, the person may apply to
3 the division for a new license,
which shall be issued by the division
4 upon payment of the proper fee and
satisfaction of the other con-
5 ditions established by law, unless
the person's driving privileges
6 have been suspended or revoked
prior to expiration.
7 Sec.
3. K.S.A. 1998 Supp. 8-1016 is hereby amended to read
8 as follows: 8-1016. (a) The
secretary of revenue shall adopt rules
9 and regulations for:
10 (1) The
approval by the division of models and classes of igni-
11 tion interlock devices suitable for use
by persons whose driving
12 privileges have been restricted to
driving a vehicle equipped with
13 such a device; and
14 (2) the
calibration and maintenance of such devices, which
15 shall be the responsibility of the
manufacturer; and
16
(3) ensuring that each manufacturer approved provides a
reasonable
17 statewide service network where such
devices may be obtained, repaired,
18 replaced or serviced and such service
network can be accessed 24 hours
19 per day through a toll-free phone
service.
20 In adopting rules
and regulations for approval of ignition inter-
21 lock devices under this section, the
secretary of revenue shall in-
22 sure that those devices approved do
not impede the safe operation of a
23 motor vehicle and have the fewest
opportunities to be bypassed so as to
24 rende them ineffective
require that the manufacturer's or the manufac-
25 turer's representatives calibrate and
maintain the devices at intervals not
26 to exceed 60 days. Calibration and
maintenance shall include but not be
27 limited to physical inspection of the
device, the vehicle and wiring of the
28 device to the vehicle for signs of
tampering, calibration of the device and
29 downloading of all data contained within
the device's memory and re-
30 porting of any violation or
noncompliance to the division.
31 (4) The
division shall adopt by rule and regulation participant
32 requirements for proper use and
maintenance of a certified ignition in-
33 terlock device during any time period
the person's license is restricted by
34 the division to only operating a motor
vehicle with an ignition interlock
35 device installed and by rule and
regulation the reporting requirements of
36 the approved manufacturer to the
division relating to the person's proper
37 use and maintenance of a certified
ignition interlock device.
38 (b) If the
division approves an ignition interlock device in ac-
39 cordance with rules and regulations
adopted under this section,
40 the division shall give written notice
of the approval to the man-
41 ufacturer of the device. Such notice
shall be admissible in any civil
42 or criminal proceeding in this
state.
43 (c) The
manufacturer of an ignition interlock device shall re-
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1 imburse the division for any cost
incurred in approving or disap-
2 proving such device under this
section.
3
(d) Neither the state nor any agency, officer or
employee
4 thereof shall be liable in any
civil or criminal proceeding arising
5 out of the use of an ignition
interlock device approved under this
6 section.
7 Section
1. 4. K.S.A. 1998 Supp. 12-4516
is hereby amended to read
8 as follows: 12-4516. (a)
(1) Except as provided in subsection (b), any
9 person who has been convicted of a
violation of a city ordinance of this
10 state may petition the convicting court for
the expungement of such con-
11 viction and related arrest records if three
or more years have elapsed
12 since the person:
13 (A) Satisfied the
sentence imposed; or
14 (B) was
discharged from probation, parole or a suspended sentence.
15 (2) Except as
provided in subsection (b), any person who has fulfilled
16 the terms of a diversion agreement based on
a violation of a city ordinance
17 of this state may petition the court for
the expungement of such diversion
18 agreement and related arrest records if
three or more years have elapsed
19 since the terms of the diversion agreement
were fulfilled.
20 (b) No person may
petition for expungement until five or more years
21 have elapsed since the person satisfied the
sentence imposed or the terms
22 of a diversion agreement or was discharged
from probation, parole, con-
23 ditional release or a suspended sentence,
if such person was convicted of
24 the violation of a city ordinance which
would also constitute:
25 (1) Vehicular
homicide, as defined by K.S.A. 21-3405, and amend-
26 ments thereto;
27 (2) a violation
of K.S.A. 8-1567, and amendments thereto;
28 (3) driving while
the privilege to operate a motor vehicle on the public
29 highways of this state has been canceled,
suspended or revoked, as pro-
30 hibited by K.S.A. 8-262, and amendments
thereto;
31 (4) perjury
resulting from a violation of K.S.A. 8-261a, and amend-
32 ments thereto;
33 (5) a violation
of the provisions of the fifth clause of K.S.A. 8-142,
34 and amendments thereto, relating to
fraudulent applications;
35 (6) any crime
punishable as a felony wherein a motor vehicle was
36 used in the perpetration of such crime;
37 (7) failing to
stop at the scene of an accident and perform the duties
38 required by K.S.A. 8-1602, 8-1603 or
8-1604, and amendments thereto;
39 (8) a violation
of the provisions of K.S.A. 40-3104, and amendments
40 thereto, relating to motor vehicle
liability insurance coverage; or
41 (9) a violation
of K.S.A. 21-3405b, and amendments thereto.
42 (c) When a
petition for expungement is filed, the court shall set a
43 date for a hearing of such petition and
shall cause notice of such hearing
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1 to be given to the prosecuting
attorney and the arresting law enforcement
2 agency. The petition shall state: (1)
The defendant's full name;
3 (2) the
full name of the defendant at the time of arrest , conviction
4 or diversion, if different than the
defendant's current name;
5 (3) the
defendant's sex, race and date of birth;
6 (4) the
crime for which the defendant was arrested, convicted or
7 diverted;
8 (5) the
date of the defendant's arrest, conviction or diversion; and
9 (6) the
identity of the convicting court, arresting law enforcement
10 agency or diverting authority. A municipal
court may prescribe a fee to
11 be charged as costs for a person
petitioning for an order of expungement
12 pursuant to this section. Any person who
may have relevant information
13 about the petitioner may testify at the
hearing. The court may inquire
14 into the background of the petitioner and
shall have access to any reports
15 or records relating to the petitioner that
are on file with the secretary of
16 corrections or the Kansas parole board.
17 (d) At the
hearing on the petition, the court shall order the peti-
18 tioner's arrest record, conviction or
diversion expunged if the court finds
19 that:
20 (1) The
petitioner has not been convicted of a felony in the past two
21 years and no proceeding involving any such
crime is presently pending
22 or being instituted against the
petitioner;
23 (2) the
circumstances and behavior of the petitioner warrant the
24 expungement; and
25 (3) the
expungement is consistent with the public welfare.
26 (e) When the
court has ordered an arrest record, conviction or di-
27 version expunged, the order of expungement
shall state the information
28 required to be contained in the petition.
The clerk of the court shall send
29 a certified copy of the order of
expungement to the Kansas bureau of
30 investigation which shall notify the
federal bureau of investigation, the
31 secretary of corrections and any other
criminal justice agency which may
32 have a record of the arrest, conviction or
diversion. After the order of
33 expungement is entered, the petitioner
shall be treated as not having been
34 arrested, convicted or diverted of the
crime, except that:
35 (1) Upon
conviction for any subsequent crime, the conviction that
36 was expunged may be considered as a prior
conviction in determining the
37 sentence to be imposed;
38
(2) upon conviction for any subsequent violation of
K.S.A. 8-1567,
39 and amendments thereto, the
diversion that was expunged shall be con-
40 sidered as a prior conviction
pursuant to K.S.A. 8-1567, and amendments
41 thereto, in determining the
sentence to be imposed; and
42
(3) the petitioner shall disclose that the
arrest, conviction or diversion
43 occurred if asked about previous arrests,
convictions or diversions:
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1 (A) In any
application for employment as a detective with a private
2 detective agency, as defined by
K.S.A. 75-7b01, and amendments thereto;
3 as security personnel with a private
patrol operator, as defined by K.S.A.
4 75-7b01, and amendments thereto; or
with an institution, as defined in
5 K.S.A. 76-12a01, and amendments
thereto, of the department of social
6 and rehabilitation services;
7 (B) in any
application for admission, or for an order of reinstatement,
8 to the practice of law in this
state;
9 (C) to aid
in determining the petitioner's qualifications for employ-
10 ment with the Kansas lottery or for work in
sensitive areas within the
11 Kansas lottery as deemed appropriate by the
executive director of the
12 Kansas lottery;
13 (D) to aid in
determining the petitioner's qualifications for executive
14 director of the Kansas racing commission,
for employment with the com-
15 mission or for work in sensitive areas in
parimutuel racing as deemed
16 appropriate by the executive director of
the commission, or to aid in
17 determining qualifications for licensure or
renewal of licensure by the
18 commission;
19 (E) upon
application for a commercial driver's license under K.S.A.
20 8-2,125 through 8-2,142, and amendments
thereto;
21 (F) to aid in
determining the petitioner's qualifications to be an em-
22 ployee of the state gaming agency;
23 (G) to aid in
determining the petitioner's qualifications to be an em-
24 ployee of a tribal gaming commission or to
hold a license issued pursuant
25 to a tribal-state gaming compact; or
26 (H) in any
application for registration as a broker-dealer, agent, in-
27 vestment adviser or investment adviser
representative all as defined in
28 K.S.A. 17-1252 and amendments thereto;
29 (3) the court, in
the order of expungement, may specify other cir-
30 cumstances under which the arrest,
conviction or diversion is to be dis-
31 closed; and
32 (4) the
conviction may be disclosed in a subsequent prosecution for
33 an offense which requires as an element of
such offense a prior conviction
34 of the type expunged.
35 (f) Whenever a
person is convicted of an ordinance violation, pleads
36 guilty and pays a fine for such a
violation, is placed on parole or probation
37 or is granted a suspended sentence for such
a violation, the person shall
38 be informed of the ability to expunge the
arrest records or conviction.
39 Whenever a person enters into a diversion
agreement, the person shall
40 be informed of the ability to expunge the
diversion.
41 (g) Subject to
the disclosures required pursuant to subsection (e), in
42 any application for employment, license or
other civil right or privilege,
43 or any appearance as a witness, a person
whose arrest records, conviction
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1 or diversion of an offense has been
expunged under this statute may state
2 that such person has never been
arrested, convicted or diverted of such
3 offense.
4
(h) Whenever the record of any arrest, conviction or diversion
has
5 been expunged under the provisions of
this section or under the provi-
6 sions of any other existing or former
statute, the custodian of the records
7 of arrest, conviction, diversion and
incarceration relating to that crime
8 shall not disclose the existence of
such records, except when requested
9 by:
10 (1) The person
whose record was expunged;
11 (2) a private
detective agency or a private patrol operator, and the
12 request is accompanied by a statement that
the request is being made in
13 conjunction with an application for
employment with such agency or op-
14 erator by the person whose record has been
expunged;
15 (3) a court, upon
a showing of a subsequent conviction of the person
16 whose record has been expunged;
17 (4) the secretary
of social and rehabilitation services, or a designee of
18 the secretary, for the purpose of obtaining
information relating to em-
19 ployment in an institution, as defined in
K.S.A. 76-12a01, and amend-
20 ments thereto, of the department of social
and rehabilitation services of
21 any person whose record has been
expunged;
22 (5) a person
entitled to such information pursuant to the terms of the
23 expungement order;
24 (6) a prosecuting
attorney, and such request is accompanied by a
25 statement that the request is being made in
conjunction with a prosecu-
26 tion of an offense that requires a prior
conviction as one of the elements
27 of such offense;
28 (7) the supreme
court, the clerk or disciplinary administrator thereof,
29 the state board for admission of attorneys
or the state board for discipline
30 of attorneys, and the request is
accompanied by a statement that the
31 request is being made in conjunction with
an application for admission,
32 or for an order of reinstatement, to the
practice of law in this state by the
33 person whose record has been expunged;
34 (8) the Kansas
lottery, and the request is accompanied by a statement
35 that the request is being made to aid in
determining qualifications for
36 employment with the Kansas lottery or for
work in sensitive areas within
37 the Kansas lottery as deemed appropriate by
the executive director of the
38 Kansas lottery;
39 (9) the governor
or the Kansas racing commission, or a designee of
40 the commission, and the request is
accompanied by a statement that the
41 request is being made to aid in determining
qualifications for executive
42 director of the commission, for employment
with the commission, for
43 work in sensitive areas in parimutuel
racing as deemed appropriate by
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1 the executive director of the
commission or for licensure, renewal of
2 licensure or continued licensure by
the commission;
3 (10) the
state gaming agency, and the request is accompanied by a
4 statement that the request is being
made to aid in determining qualifi-
5 cations: (A) To be an employee of the
state gaming agency; or (B) to be
6 an employee of a tribal gaming
commission or to hold a license issued
7 pursuant to a tribal-state gaming
compact; or
8 (11) the
Kansas securities commissioner, or a designee of the com-
9 missioner, and the request is
accompanied by a statement that the request
10 is being made in conjunction with an
application for registration as a
11 broker-dealer, agent, investment adviser or
investment adviser represen-
12 tative by such agency and the application
was submitted by the person
13 whose record has been expunged.
14 (i) Nothing in this
section shall be construed to create an obli-
15 gation on the part of any person to
disclose an arrest record unless
16 specifically required by law to
disclose such arrest record.
17 Sec.
2.
5. K.S.A. 1998 Supp. 12-4516a is hereby amended
to
18 read as follows: 12-4516a.
(a) Any person who has been arrested
19 on a violation of a city ordinance of
this state may petition the court
20 for the expungement of such arrest
record.
21 (b) When a
petition for expungement is filed, the court shall set
22 a date for hearing on such petition
and shall cause notice of such
23 hearing to be given to the
prosecuting attorney and the arresting
24 law enforcement agency. The petition
shall state: (1) The peti-
25 tioner's full name;
26 (2) the
full name of the petitioner at the time of arrest, if
differ-
27 ent than the petitioner's current
name;
28 (3) the
petitioner's sex, race and date of birth;
29 (4) the
crime for which the petitioner was arrested;
30 (5) the
date of the petitioner's arrest, and
31 (6) the
identity of the arresting law enforcement agency.
32 A municipal
court may prescribe a fee to be charged as costs for
33 a person petitioning for an order of
expungement pursuant to this
34 section. Any person who may have
relevant information about the
35 petitioner may testify at the
hearing. The court may inquire into
36 the background of the
petitioner.
37 (c) At the
hearing on a petition for expungement, the court shall
38 order the arrest record and
subsequent court proceedings, if any,
39 expunged upon finding: (1) The arrest
occurred because of mistaken
40 identity;
41 (2) a court
has found that there was no probable cause for the
42 arrest;
43 (3) the
petitioner was found not guilty in court proceedings;
or
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1
(4) the expungement would be in the best interests of justice
and
2 (A) Charges have been
dismissed; or (B) no charges have been or
3 are likely to be
filed.
4
(d) When the court has ordered expungement of an arrest
record
5 and subsequent court
proceedings, if any, the order shall state the
6 information required to be
stated in the petition and shall state the
7 grounds for expungement under
subsection (c). The clerk of the
8 court shall send a certified
copy of the order to the federal bureau
9 of investigation, the Kansas
bureau of investigation, the secretary
10 of corrections and any other criminal
justice agency which may
11 have a record of the arrest. If an
order of expungement is entered,
12 the petitioner shall be treated as
not having been arrested.
13 (e) If the
ground for expungement is as provided in subsection
14 (c)(4), the court shall determine
whether, in the interest of public
15 welfare, the records should be
available for any of the following
16 purposes: (1) In any application for
employment as a detective with
17 a private detective agency, as
defined by K.S.A. 75-7b01 and amend-
18 ments thereto; as security personnel
with a private patrol operator,
19 as defined by K.S.A. 75-7b01 and
amendments thereto; or with an
20 institution, as defined in K.S.A.
76-12a01 and amendments thereto,
21 of the department of social and
rehabilitation services;
22 (2) in any
application for admission, or for an order of rein-
23 statement, to the practice of law in
this state;
24 (3) to aid
in determining the petitioner's qualifications for em-
25 ployment with the Kansas lottery or
for work in sensitive areas
26 within the Kansas lottery as deemed
appropriate by the executive
27 director of the Kansas
lottery;
28 (4) to aid
in determining the petitioner's qualifications for ex-
29 ecutive director of the Kansas racing
commission, for employment
30 with the commission or for work in
sensitive areas in parimutuel
31 racing as deemed appropriate by the
executive director of the com-
32 mission, or to aid in determining
qualifications for licensure or re-
33 newal of licensure by the
commission;
34 (5) in any
application for a commercial driver's license under
35 K.S.A. 8-2,125 through 8-2,142 and
amendments thereto;
36 (6) to aid
in determining the petitioner's qualifications to be an
37 employee of the state gaming
agency;
38 (7) to aid
in determining the petitioner's qualifications to be an
39 employee of a tribal gaming
commission or to hold a license issued
40 pursuant to a tribal-state gaming
compact; or
41 (8) in any
other circumstances which the court deems
42 appropriate.
43 (f) Subject
to any disclosures required under subsection (e), in
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1 any application for employment,
license or other civil right or priv-
2 ilege, or any appearance as a
witness, a person whose arrest records
3 have been expunged as provided
in this section may state that such
4 person has never been
arrested.
5
(g) Whenever a petitioner's arrest records have been
expunged
6 as provided in this section,
the custodian of the records of arrest,
7 incarceration due to arrest or
court proceedings related to the ar-
8 rest, shall not disclose the
arrest or any information related to the
9 arrest, except as directed by
the order of expungement or when re-
10 quested by the person whose arrest
record was expunged.
11
(h) Nothing in this section shall be construed to create an
obligation
12 on the part of any person to disclose an
arrest record unless specifically
13 required by law to disclose such arrest
record.
14 Sec.
2. 3
6. K.S.A. 1998 Supp. 21-4619 is hereby amended to
read
15 as follows: 21-4619. (a)
(1) Except as provided in subsections (b) and
16 (c), any person convicted in this state of
a traffic infraction, cigarette or
17 tobacco infraction, misdemeanor or a class
D or E felony, or for crimes
18 committed on or after July 1, 1993, nondrug
crimes ranked in severity
19 levels 6 through 10 or any felony ranked in
severity level 4 of the drug
20 grid, may petition the convicting court for
the expungement of such con-
21 viction or related arrest records if three
or more years have elapsed since
22 the person: (A) Satisfied the sentence
imposed; or (B) was discharged
23 from probation, a community correctional
services program, parole, post-
24 release supervision, conditional release or
a suspended sentence.
25 (2) Except as
provided in subsections (b) and (c), any person who has
26 fulfilled the terms of a diversion
agreement may petition the district court
27 for the expungement of such diversion
agreement and related arrest re-
28 cords if three or more years have elapsed
since the terms of the diversion
29 agreement were fulfilled.
30 (b) Except as
provided in subsection (c), no person may petition for
31 expungement until five or more years have
elapsed since the person sat-
32 isfied the sentence imposed, the terms of a
diversion agreement or was
33 discharged from probation, a community
correctional services program,
34 parole, postrelease supervision,
conditional release or a suspended sen-
35 tence, if such person was convicted of a
class A, B or C felony, or for
36 crimes committed on or after July 1, 1993,
if convicted of an off-grid
37 felony or any nondrug crime ranked in
severity levels 1 through 5 or any
38 felony ranked in severity levels 1 through
3 of the drug grid, or:
39 (1) Vehicular
homicide, as defined by K.S.A. 21-3405 and amend-
40 ments thereto or as prohibited by any law
of another state which is in
41 substantial conformity with that
statute;
42 (2) a violation
of K.S.A. 8-1567 and amendments thereto, or a viola-
43 tion of any law of another state, which
declares to be unlawful the acts
SB 4--Am. by H
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1 prohibited by that statute;
2 (3) driving
while the privilege to operate a motor vehicle on the public
3 highways of this state has been
canceled, suspended or revoked, as pro-
4 hibited by K.S.A. 8-262 and
amendments thereto or as prohibited by any
5 law of another state which is in
substantial conformity with that statute;
6 (4) perjury
resulting from a violation of K.S.A. 8-261a and amend-
7 ments thereto or resulting from the
violation of a law of another state
8 which is in substantial conformity
with that statute;
9
(5) violating the provisions of the fifth clause of K.S.A.
8-142 and
10 amendments thereto, relating to fraudulent
applications or violating the
11 provisions of a law of another state which
is in substantial conformity with
12 that statute;
13 (6) any crime
punishable as a felony wherein a motor vehicle was
14 used in the perpetration of such crime;
15 (7) failing to
stop at the scene of an accident and perform the duties
16 required by K.S.A. 8-1602, 8-1603 or
8-1604, and amendments thereto,
17 or required by a law of another state which
is in substantial conformity
18 with those statutes;
19 (8) violating the
provisions of K.S.A. 40-3104 and amendments
20 thereto, relating to motor vehicle
liability insurance coverage; or
21 (9) a violation
of K.S.A. 21-3405b, prior to its repeal.
22 (c) There shall
be no expungement of convictions for the following
23 offenses or of convictions for an attempt
to commit any of the following
24 offenses: (1) Rape as defined in subsection
(a)(2) of K.S.A. 21-3502 and
25 amendments thereto; (2) indecent liberties
with a child as defined in
26 K.S.A. 21-3503 and amendments thereto; (3)
aggravated indecent liber-
27 ties with a child as defined in K.S.A.
21-3504 and amendments thereto;
28 (4) criminal sodomy as defined in
subsection (a)(2) or (a)(3) of K.S.A. 21-
29 3505 and amendments thereto; (5) aggravated
criminal sodomy as defined
30 in K.S.A. 21-3506 and amendments thereto;
(6) indecent solicitation of a
31 child as defined in K.S.A. 21-3510 and
amendments thereto; (7) aggra-
32 vated indecent solicitation of a child as
defined in K.S.A. 21-3511 and
33 amendments thereto; (8) sexual exploitation
of a child as defined in K.S.A.
34 21-3516 and amendments thereto; (9)
aggravated incest as defined in
35 K.S.A. 21-3603 and amendments thereto; (10)
endangering a child as
36 defined in K.S.A. 21-3608 and amendments
thereto; (11) abuse of a child
37 as defined in K.S.A. 21-3609 and amendments
thereto; (12) capital mur-
38 der as defined in K.S.A. 21-3439 and
amendments thereto; (13) murder
39 in the first degree as defined in K.S.A.
21-3401 and amendments thereto;
40 (14) murder in the second degree as defined
in K.S.A. 21-3402 and
41 amendments thereto; (15) voluntary
manslaughter as defined in K.S.A.
42 21-3403 and amendments thereto; (16)
involuntary manslaughter as de-
43 fined in K.S.A. 21-3404 and amendments
thereto; (17) involuntary man-
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1 slaughter while driving under the
influence of alcohol or drugs as defined
2 in K.S.A. 21-3442 and amendments
thereto; or (18) any conviction for
3 any offense in effect at any time
prior to the effective date of this act,
4 that is comparable to any offense as
provided in this subsection.
5 (d) When a
petition for expungement is filed, the court shall set a
6 date for a hearing of such petition
and shall cause notice of such hearing
7 to be given to the prosecuting
attorney and the arresting law enforcement
8 agency. The petition shall state: (1)
The defendant's full name;
9 (2) the
full name of the defendant at the time of arrest , conviction
10 or diversion, if different than the
defendant's current name;
11 (3) the
defendant's sex, race and date of birth;
12 (4) the crime for
which the defendant was arrested, convicted or
13 diverted;
14 (5) the date of
the defendant's arrest, conviction or diversion; and
15 (6) the identity
of the convicting court, arresting law enforcement
16 authority or diverting authority. There
shall be no docket fee for filing a
17 petition pursuant to this section. All
petitions for expungement shall be
18 docketed in the original criminal action.
Any person who may have rel-
19 evant information about the petitioner may
testify at the hearing. The
20 court may inquire into the background of
the petitioner and shall have
21 access to any reports or records relating
to the petitioner that are on file
22 with the secretary of corrections or the
Kansas parole board.
23 (e) At the
hearing on the petition, the court shall order the peti-
24 tioner's arrest record, conviction or
diversion expunged if the court finds
25 that:
26 (1) The
petitioner has not been convicted of a felony in the past two
27 years and no proceeding involving any such
crime is presently pending
28 or being instituted against the
petitioner;
29 (2) the
circumstances and behavior of the petitioner warrant the
30 expungement; and
31 (3) the
expungement is consistent with the public welfare.
32 (f) When the
court has ordered an arrest record, conviction or diver-
33 sion expunged, the order of expungement
shall state the information re-
34 quired to be contained in the petition. The
clerk of the court shall send
35 a certified copy of the order of
expungement to the Kansas bureau of
36 investigation which shall notify the
federal bureau of investigation, the
37 secretary of corrections and any other
criminal justice agency which may
38 have a record of the arrest, conviction or
diversion. After the order of
39 expungement is entered, the petitioner
shall be treated as not having been
40 arrested, convicted or diverted of the
crime, except that:
41 (1) Upon
conviction for any subsequent crime, the conviction that
42 was expunged may be considered as a prior
conviction in determining the
43 sentence to be imposed;
SB 4--Am. by H
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1
(2) upon conviction for any subsequent violation of
K.S.A. 8-1567,
2 and amendments thereto,
the diversion that was expunged shall be con-
3 sidered as a prior
conviction pursuant to K.S.A. 8-1567, and
amendments
4 thereto, in determining
the sentence to be imposed; and
5
(3) the petitioner shall disclose that the
arrest, conviction or diversion
6 occurred if asked about previous
arrests, convictions or diversions: (A) In
7 any application for employment as a
detective with a private detective
8 agency, as defined by K.S.A. 75-7b01
and amendments thereto; as se-
9 curity personnel with a private
patrol operator, as defined by K.S.A. 75-
10 7b01 and amendments thereto; or with an
institution, as defined in K.S.A.
11 76-12a01 and amendments thereto, of the
department of social and re-
12 habilitation services;
13 (B) in any
application for admission, or for an order of reinstatement,
14 to the practice of law in this state;
15 (C) to aid in
determining the petitioner's qualifications for employ-
16 ment with the Kansas lottery or for work in
sensitive areas within the
17 Kansas lottery as deemed appropriate by the
executive director of the
18 Kansas lottery;
19 (D) to aid in
determining the petitioner's qualifications for executive
20 director of the Kansas racing commission,
for employment with the com-
21 mission or for work in sensitive areas in
parimutuel racing as deemed
22 appropriate by the executive director of
the commission, or to aid in
23 determining qualifications for licensure or
renewal of licensure by the
24 commission;
25 (E) upon
application for a commercial driver's license under K.S.A.
26 8-2,125 through 8-2,142, and amendments
thereto;
27 (F) to aid in
determining the petitioner's qualifications to be an em-
28 ployee of the state gaming agency;
29 (G) to aid in
determining the petitioner's qualifications to be an em-
30 ployee of a tribal gaming commission or to
hold a license issued pursuant
31 to a tribal-state gaming compact; or
32 (H) in any
application for registration as a broker-dealer, agent, in-
33 vestment adviser or investment adviser
representative all as defined in
34 K.S.A. 17-1252 and amendments thereto;
35 (3) the court, in
the order of expungement, may specify other cir-
36 cumstances under which the conviction is to
be disclosed;
37 (4) the
conviction may be disclosed in a subsequent prosecution for
38 an offense which requires as an element of
such offense a prior conviction
39 of the type expunged; and
40 (5) upon
commitment to the custody of the secretary of corrections,
41 any previously expunged record in the
possession of the secretary of cor-
42 rections may be reinstated and the
expungement disregarded, and the
43 record continued for the purpose of the new
commitment.
SB 4--Am. by H
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1
(g) Whenever a person is convicted of a crime, pleads guilty
and pays
2 a fine for a crime, is placed on
parole, postrelease supervision or proba-
3 tion, is assigned to a community
correctional services program, is granted
4 a suspended sentence or is released
on conditional release, the person
5 shall be informed of the ability to
expunge the arrest records or convic-
6 tion. Whenever a person enters into a
diversion agreement, the person
7 shall be informed of the ability to
expunge the diversion.
8 (h) Subject
to the disclosures required pursuant to subsection (f), in
9 any application for employment,
license or other civil right or privilege,
10 or any appearance as a witness, a person
whose arrest records, conviction
11 or diversion of a crime has been expunged
under this statute may state
12 that such person has never been arrested,
convicted or diverted of such
13 crime, but the expungement of a felony
conviction does not relieve an
14 individual of complying with any state or
federal law relating to the use
15 or possession of firearms by persons
convicted of a felony.
16 (i) Whenever the
record of any arrest, conviction or diversion has
17 been expunged under the provisions of this
section or under the provi-
18 sions of any other existing or former
statute, the custodian of the records
19 of arrest, conviction, diversion and
incarceration relating to that crime
20 shall not disclose the existence of such
records, except when requested
21 by:
22 (1) The person
whose record was expunged;
23 (2) a private
detective agency or a private patrol operator, and the
24 request is accompanied by a statement that
the request is being made in
25 conjunction with an application for
employment with such agency or op-
26 erator by the person whose record has been
expunged;
27 (3) a court, upon
a showing of a subsequent conviction of the person
28 whose record has been expunged;
29 (4) the secretary
of social and rehabilitation services, or a designee of
30 the secretary, for the purpose of obtaining
information relating to em-
31 ployment in an institution, as defined in
K.S.A. 76-12a01 and amend-
32 ments thereto, of the department of social
and rehabilitation services of
33 any person whose record has been
expunged;
34 (5) a person
entitled to such information pursuant to the terms of the
35 expungement order;
36 (6) a prosecuting
attorney, and such request is accompanied by a
37 statement that the request is being made in
conjunction with a prosecu-
38 tion of an offense that requires a prior
conviction as one of the elements
39 of such offense;
40 (7) the supreme
court, the clerk or disciplinary administrator thereof,
41 the state board for admission of attorneys
or the state board for discipline
42 of attorneys, and the request is
accompanied by a statement that the
43 request is being made in conjunction with
an application for admission,
SB 4--Am. by H
16
1 or for an order of reinstatement, to
the practice of law in this state by the
2 person whose record has been
expunged;
3 (8) the
Kansas lottery, and the request is accompanied by a statement
4 that the request is being made to aid
in determining qualifications for
5 employment with the Kansas lottery or
for work in sensitive areas within
6 the Kansas lottery as deemed
appropriate by the executive director of the
7 Kansas lottery;
8 (9) the
governor or the Kansas racing commission, or a designee of
9 the commission, and the request is
accompanied by a statement that the
10 request is being made to aid in determining
qualifications for executive
11 director of the commission, for employment
with the commission, for
12 work in sensitive areas in parimutuel
racing as deemed appropriate by
13 the executive director of the commission or
for licensure, renewal of
14 licensure or continued licensure by the
commission;
15 (10) the Kansas
sentencing commission;
16 (11) the state
gaming agency, and the request is accompanied by a
17 statement that the request is being made to
aid in determining qualifi-
18 cations: (A) To be an employee of the state
gaming agency; or (B) to be
19 an employee of a tribal gaming commission
or to hold a license issued
20 pursuant to a tribal-gaming compact; or
21 (12) the Kansas
securities commissioner or a designee of the com-
22 missioner, and the request is accompanied
by a statement that the request
23 is being made in conjunction with an
application for registration as a
24 broker-dealer, agent, investment adviser or
investment adviser represen-
25 tative by such agency and the application
was submitted by the person
26 whose record has been expunged.
27 (j) Nothing in this section
shall be construed to create an obli-
28 gation on the part of any person to
disclose an arrest record unless
29 specifically required by law to
disclose such arrest record.
30 Sec.
4.
7. K.S.A. 1998 Supp. 22-2410 is hereby amended to
read
31 as follows: 22-2410. (a) Any
person who has been arrested in this
32 state may petition the district court
for the expungement of such
33 arrest record.
34 (b) When a
petition for expungement is filed, the court shall set
35 a date for hearing on such petition
and shall cause notice of such
36 hearing to be given to the
prosecuting attorney and the arresting
37 law enforcement agency. The petition
shall state: (1) The peti-
38 tioner's full name;
39 (2) the
full name of the petitioner at the time of arrest, if
differ-
40 ent than the petitioner's current
name;
41 (3) the
petitioner's sex, race and date of birth;
42 (4) the
crime for which the petitioner was arrested;
43 (5) the
date of the petitioner's arrest; and
SB 4--Am. by H
17
1
(6) the identity of the arresting law enforcement
agency.
2 There
shall be no docket fee for filing a petition pursuant to
this
3 section. Any person who may
have relevant information about the
4 petitioner may testify at the
hearing. The court may inquire into
5 the background of the
petitioner.
6
(c) At the hearing on a petition for expungement, the court
shall
7 order the arrest record and
subsequent court proceedings, if any,
8 expunged upon finding: (1) The
arrest occurred because of mistaken
9 identity;
10 (2) a court
has found that there was no probable cause for the
11 arrest;
12 (3) the
petitioner was found not guilty in court proceedings;
or
13 (4) the
expungement would be in the best interests of justice
and
14 (A) Charges have been dismissed; or
(B) no charges have been or
15 are likely to be filed.
16 (d) When
the court has ordered expungement of an arrest record
17 and subsequent court proceedings, if
any, the order shall state the
18 information required to be stated in
the petition and shall state the
19 grounds for expungement under
subsection (c). The clerk of the
20 court shall send a certified copy of
the order to the federal bureau
21 of investigation, the Kansas bureau
of investigation, the secretary
22 of corrections and any other criminal
justice agency which may
23 have a record of the arrest. If an
order of expungement is entered,
24 the petitioner shall be treated as
not having been arrested.
25 (e) If the
ground for expungement is as provided in subsection
26 (c)(4), the court shall determine
whether, in the interests of public
27 welfare, the records should be
available for any of the following
28 purposes: (1) In any application for
employment as a detective with
29 a private detective agency, as
defined in K.S.A. 75-7b01 and amend-
30 ments thereto; as security personnel
with a private patrol operator,
31 as defined by K.S.A. 75-7b01 and
amendments thereto; or with an
32 institution, as defined in K.S.A.
76-12a01 and amendments thereto,
33 of the department of social and
rehabilitation services;
34 (2) in any
application for admission, or for an order of rein-
35 statement, to the practice of law in
this state;
36 (3) to aid
in determining the petitioner's qualifications for em-
37 ployment with the Kansas lottery or
for work in sensitive areas
38 within the Kansas lottery as deemed
appropriate by the executive
39 director of the Kansas
lottery;
40 (4) to aid
in determining the petitioner's qualifications for ex-
41 ecutive director of the Kansas racing
commission, for employment
42 with the commission or for work in
sensitive areas in parimutuel
43 racing as deemed appropriate by the
executive director of the com-
SB 4--Am. by H
18
1 mission, or to aid in
determining qualifications for licensure or re-
2 newal of licensure by the
commission;
3
(5) in any application for a commercial driver's license
under
4 K.S.A. 8-2,125 through 8-2,142
and amendments thereto;
5
(6) to aid in determining the petitioner's qualifications to
be an
6 employee of the state gaming
agency;
7
(7) to aid in determining the petitioner's qualifications to
be an
8 employee of a tribal gaming
commission or to hold a license issued
9 pursuant to a tribal-state
gaming compact; or
10 (8) in any
other circumstances which the court deems
11 appropriate.
12 (f) Subject
to any disclosures required under subsection (e), in
13 any application for employment,
license or other civil right or priv-
14 ilege, or any appearance as a
witness, a person whose arrest records
15 have been expunged as provided in
this section may state that such
16 person has never been
arrested.
17
(g) Whenever a petitioner's arrest records have been
expunged
18 as provided in this section, the
custodian of the records of arrest,
19 incarceration due to arrest or court
proceedings related to the ar-
20 rest, shall not disclose the arrest
or any information related to the
21 arrest, except as directed by the
order of expungement or when re-
22 quested by the person whose arrest
record was expunged.
23
(h) Nothing in this section shall be construed to create an
obligation
24 on the part of any person to disclose an
arrest record unless specifically
25 required by law to disclose such arrest
record.
26 Sec. 3.
5.
8. K.S.A. 1998 Supp. 8-1014, 8-1015,
8-1016, 12-4516
27 and,
12-4516a, 21-4619 and 22-2410 are hereby
repealed.
28 Sec. 4.
6. 9. This
act shall take effect and be in force from and
29 after its publication in the statute
book.