Session of 2000
HOUSE BILL No. 2791
By Committee on Education
2-2
9 AN ACT concerning juveniles and juvenile offenders; relating to offenses
10 committed at school; amending K.S.A. 1999 Supp. 38-1624, 38-1632
11 and 38-1640 and repealing the existing sections.
12
13 Be it enacted by the Legislature of the State of Kansas:
14 Section 1. K.S.A. 1999 Supp. 38-1624 is hereby amended to read as
15 follows: 38-1624. (a) By a law enforcement officer. A law enforcement
16 officer may take an alleged juvenile offender into custody when:
17 (1) Any offense has been or is being committed by the juvenile in the
18 officer's view;
19 (2) the officer has a warrant commanding that the juvenile be taken
20 into custody;
21 (3) the officer has probable cause to believe that a warrant or order
22 commanding that the juvenile be taken into custody has been issued in
23 this state or in another jurisdiction for an act committed therein;
24 (4) the officer has probable cause to believe that the juvenile is com-
25 mitting or has committed an act which, if committed by an adult, would
26 constitute:
27 (A) A felony; or
28 (B) a misdemeanor and (i) the juvenile will not be apprehended or
29 evidence of the offense will be irretrievably lost unless the juvenile is
30 immediately taken into custody or (ii) the juvenile may cause injury to
31 self or others or damage to property or may be injured unless immediately
32 taken into custody; or
33 (5) the officer has probable cause to believe that the juvenile has
34 violated an order for electronic monitoring as a term of probation. ; or
35 (6) upon receipt of a report made to a law enforcement agency pur-
36 suant to subsection (f) of K.S.A. 72-89a02, or subsection (b)(1) of K.S.A.
37 72-89b03, and amendments thereto, that a juvenile has been in possession
38 of a weapon at school, on school property or at a school supervised activ-
39 ity, the law enforcement agency shall immediately cause an investigation
40 to be made to determine whether there is probable cause to believe that
41 the juvenile committed an act which, if committed by an adult, would
42 constitute a violation of K.S.A. 21-4201, and amendments thereto. If a
43 determination of probable cause is made under this provision, the law
2
1 enforcement agency shall immediately take the alleged juvenile offender
2 into custody.
3 (b) By a court services officer or juvenile community corrections of-
4 ficer. A court services officer or juvenile community corrections officer
5 may take a juvenile into custody when there is a warrant commanding
6 that the juvenile be taken into custody, when the officer has probable
7 cause to believe that a warrant or order commanding that the juvenile be
8 taken into custody has been issued in this state or in another jurisdiction
9 for an act committed therein or when there is probable cause to believe
10 that the juvenile has violated an order for electronic monitoring as a term
11 of probation. Any court services officer or juvenile community correction
12 officer may arrest a juvenile without a warrant or may deputize any other
13 officer with power of arrest to arrest a juvenile without a warrant by giving
14 the officer a written statement setting forth that the juvenile, in the judg-
15 ment of the court services officer or juvenile community correction of-
16 ficer, has violated the condition of the juvenile's release. The written
17 statement delivered with the juvenile by the arresting officer to the official
18 in charge of a juvenile detention facility or other place of detention shall
19 be sufficient warrant for the detention of the juvenile.
20 (c) Procedure. (1) When any law enforcement officer takes an al-
21 leged juvenile offender into custody, the juvenile shall be taken without
22 unnecessary delay to an intake and assessment worker if an intake and
23 assessment program exists in the jurisdiction, or before the court for pro-
24 ceedings in accordance with this code or, if the court is not open for the
25 regular conduct of business, to a court services officer, a juvenile intake
26 and assessment worker, a juvenile detention facility or youth residential
27 facility which the court or the commissioner shall have designated. The
28 officer shall not take the juvenile to a juvenile detention facility unless
29 the juvenile meets one or more of the criteria listed in K.S.A. 38-1640,
30 and amendments thereto. Even if the juvenile meets one or more of such
31 criteria, the officer shall first consider whether taking the juvenile to an
32 available nonsecure facility is more appropriate. If the juvenile has been
33 taken into custody pursuant to a probable cause finding that the juvenile
34 has been in possession of a weapon at school, on school property, or at a
35 school supervised activity in violation of K.S.A. 21-4201, or subsection
36 (a)(5) of K.S.A. 21-4204, and amendments thereto, the juvenile shall be
37 detained in a youth detention facility or a youth residential facility, or
38 other appropriate secure facility, a psychological evaluation shall be ini-
39 tiated immediately for purposes of determining whether the juvenile is a
40 danger to self or others.
41 (2) It shall be the duty of the officer to furnish the county or district
42 attorney or the juvenile intake and assessment worker if the officer has
43 delivered such juvenile to the worker, with all of the information in the
3
1 possession of the officer pertaining to the juvenile; the juvenile's parents,
2 or other persons interested in or likely to be interested in the juvenile;
3 and all other facts and circumstances which caused the juvenile to be
4 arrested or taken into custody.
5 (3) (A) When the juvenile is less than 14 years of age, no in-custody
6 or arrest admission or confession resulting from interrogation may be
7 admitted into evidence unless the confession or admission was made fol-
8 lowing a consultation between the juvenile and the juvenile's parents,
9 guardian or attorney as to whether the juvenile will waive such juvenile's
10 right to an attorney and right against self-incrimination. It shall be the
11 duty of the facility where the juvenile has been delivered to make a rea-
12 sonable effort to contact the parent or guardian immediately upon such
13 juvenile's arrival unless such parent or guardian is the alleged victim or
14 alleged codefendant of the crime under investigation.
15 (B) When a parent or guardian is the alleged victim or alleged cod-
16 efendant of the crime under investigation and the juvenile is less than 14
17 years of age, no in-custody or arrest admission or confession may be ad-
18 mitted into evidence unless the confession or admission was made fol-
19 lowing a consultation between the juvenile and a parent or guardian who
20 is not involved in the investigation of the crime, or an attorney as to
21 whether the juvenile will waive such juvenile's right to an attorney and
22 right against self-incrimination. It shall be the duty of the facility where
23 the juvenile has been delivered to make reasonable effort to contact a
24 parent or guardian who is not involved in the investigation of the crime
25 immediately upon such juvenile's arrival.
26 (d) Release prior to detention hearing. In the absence of a court order
27 to the contrary, and except when a juvenile is taken into custody for
28 alleged violation of K.S.A. 21-4201, or subsection (a)(5) of K.S.A. 21-4204,
29 and amendments thereto, the court or officials designated by the court,
30 the county or district attorney or the law enforcement agency taking a
31 juvenile into custody shall have the authority to direct the release of the
32 juvenile prior to the time specified by subsection (a) of K.S.A. 38-1632
33 and amendments thereto. In addition, if an agreement is established pur-
34 suant to K.S.A. 38-1635, and amendments thereto, a juvenile intake and
35 assessment worker shall have the authority to direct the release of a ju-
36 venile prior to a detention hearing after the completion of the intake and
37 assessment process if the juvenile intake and assessment worker has rea-
38 son to believe that if released the juvenile will appear for further pro-
39 ceedings and will not be dangerous to self or others.
40 (e) Person 18 or over taken into custody; detention and release.
41 Whenever a person 18 years of age or more is taken into custody by a
42 law enforcement officer for an alleged offense which was committed prior
43 to the time the person reached the age of 18, the officer shall notify and
4
1 refer the matter to the court for proceedings pursuant to this code, except
2 that the provisions of this code relating to detention hearings shall not
3 apply to that person. If detention is necessary, the person shall be de-
4 tained in jail. Unless the law enforcement officer took the person into
5 custody pursuant to a warrant issued by the court and the warrant spec-
6 ifies the amount of bond or indicates that the person may be released on
7 personal recognizance, the person shall be taken before the court of the
8 county where the alleged act took place or, at the request of the person,
9 the person shall be taken, without delay, before the nearest court. The
10 court shall fix the terms and conditions of an appearance bond upon which
11 the person may be released from custody. The provisions of article 28 of
12 chapter 22 of the Kansas Statutes Annotated and K.S.A. 22-2901 and
13 amendments thereto relating to appearance bonds and review of condi-
14 tions and release shall be applicable to appearance bonds provided for in
15 this section.
16 Sec. 2. K.S.A. 1999 Supp. 38-1632 is hereby amended to read as
17 follows: 38-1632. (a) Length of detention. (1) Whenever an alleged juve-
18 nile offender is taken into custody and is thereafter taken before the court
19 or to a juvenile detention facility or youth residential facility designated
20 by the court, the juvenile shall not remain detained for more than 48
21 hours, excluding Saturdays, Sundays and legal holidays, from the time the
22 initial detention was imposed, unless the court determines after hearing,
23 within the 48-hour period, that further detention is necessary.
24 (2) If a juvenile is detained in jail pursuant to subsection (b) of K.S.A.
25 38-1691 and amendments thereto, the detention hearing required by this
26 section shall be held within 24 hours after the juvenile is taken into
27 custody.
28 (b) Waiver of detention hearing. The right of a juvenile to a detention
29 hearing may be waived if the juvenile and the attorney for the juvenile
30 consent in writing to waive the right to a detention hearing and the judge
31 approves the waiver. Whenever the right to a detention hearing has been
32 waived, the juvenile, the attorney for the juvenile or the juvenile's parents
33 may reassert the right at any time not less than 48 hours prior to the time
34 scheduled for trial by submitting a written request to the judge. Upon
35 request, the judge shall immediately set the time and place for the hear-
36 ing, which shall be held not more than 48 hours after the receipt of the
37 request excluding Saturdays, Sundays and legal holidays.
38 (c) Notice of hearing. Whenever it is determined that a detention
39 hearing is required the court shall immediately set the time and place for
40 the hearing. Except as otherwise provided by subsection (b)(1) of K.S.A.
41 38-1691 and amendments thereto, notice of the detention hearing shall
42 be given at least 24 hours prior to the hearing, unless waived, and shall
43 be in substantially the following form:
5
1 (Name of Court)
2 (Caption of Case)
3 NOTICE OF DETENTION HEARING
4 TO:_______________________ __________________________________
5 (Juvenile)
6 _______________________ __________________________________
7 (Father)
8 _______________________ __________________________________
9 (Mother)
10 _______________________
__________________________________
11 (Other having custody- (Address)
12 relationship)
13 On ________, ________ , 19 20____, at ____o'clock __m.
14 (day) (date)
15 there will be a hearing for the court to determine if there is a need for further detention of
16 the above named juvenile. Each parent or other person having legal custody of the juvenile
17 should be present at the hearing which will be held at __________________.
18 You have the right to hire an attorney to represent the above juvenile. Upon failure to
19 hire an attorney the court will appoint an attorney for the juvenile and the juvenile, parent
20 or other person having legal custody of the juvenile may be required to repay the court for
21 the expense of the appointed attorney. The court may order one or both parents to pay child
22 support.
23 Date: ________, 19 20____ Clerk of the District Court
24 by ________________________
25 (Seal)
26 REPORT OF SERVICE
27 I certify that I have delivered a true copy of the above notice on the persons above named
28 in the manner and at the times indicated below:
29 Name Location of Service Manner of Service Date Time
30 (other than above)
31 ________ ____ ____ ____ ____
32 ________ ____ ____ ____ ____
33 Date Returned: ________, 19 20____ _____________________________
34 (Signature)
35 _____________________________
36 (Title)
37 (d) Oral notice. When there is insufficient time to give written notice,
38 oral notice may be given and is completed upon filing a certificate of oral
39 notice with the clerk in substantially the following form:
40 (Name of Court)
41 (Caption of Case)
42 CERTIFICATE OF ORAL NOTICE OF DETENTION HEARING
43 I gave oral notice that the court will hold a hearing at ____o'clock __m. on ____________
,
6
1 19 20____, to the persons listed, in the manner and at the times indicated below:
2 Name Relationship Date Time Method of Communication
3 (in person or telephone)
4 ________ ________ ____ ____ ________________________
5 ________ ________ ____ ____ ________________________
6 I advised each of the above named persons that:
7 (1) The hearing is to determine if the above named juvenile shall be detained;
8 (2) each parent or person having legal custody should be present at the hearing;
9 (3) they have the right to hire an attorney of their own choice for the juvenile;
10 (4) if an attorney is not hired, the court will appoint an attorney for the juvenile;
11 (5) the juvenile, parent or other person having custody of the juvenile may be required to
12 repay the court for the expense of the appointed attorney; and
13 (6) the court may order one or both parents to pay child support.
14 ______________________________
15 (Signature)
16 ______________________________
17 (Name Printed)
18 ______________________________
19 (Title)
20 (e) Hearing, finding, bond. At the time set for the detention hearing
21 if no retained attorney is present to represent the juvenile, the court shall
22 appoint an attorney for the juvenile, and may recess the hearing for 24
23 hours to obtain attendance of the attorney appointed unless the juvenile
24 is detained in jail pursuant to subsection (b)(1) of K.S.A. 38-1691 and
25 amendments thereto. At the detention hearing, if the court finds the
26 juvenile is dangerous to self or others, the juvenile may be detained in a
27 juvenile detention facility or youth residential facility which the court shall
28 designate. If the juvenile is being detained pursuant to a report made
29 under subsection (f) of K.S.A. 72-89a02 or under subsection (b)(1) or
30 K.S.A. 72-89b03, and amendments thereto, and a probable cause finding
31 by law enforcement that the juvenile has been in possession of a weapon
32 at school, on school property, or at a school supervised activity, the court
33 if necessary to conclude the psychological evaluation required by subsec-
34 tion (c)(1) of K.S.A. 38-1624, and amendments thereto, shall order deten-
35 tion of the juvenile in the juvenile detention facility or youth residential
36 facility for not more than 72 hours, inclusive of the time detained prior
37 to the detention hearing. A report shall be furnished to the court within
38 the 72-hour period. If the results of the report are that the juvenile does
39 present a risk to the physical safety of self or others, the court may order
40 continued detention of the juvenile in a juvenile detention facility or youth
41 residential facility pending the outcome of adjudication, and may also
42 order counseling or treatment during such period of detention. Any per-
43 son required to make a finding regarding risk to safety hereunder shall
7
1 be immune from civil liability for any good-faith conduct under this sub-
2 section. If the court finds the juvenile is not likely to appear for further
3 proceedings, the juvenile may be detained in a juvenile detention facility
4 or youth residential facility which the court shall designate or may be
5 released upon the giving of an appearance bond in an amount specified
6 by the court and on the conditions the court may impose, in accordance
7 with the applicable provisions of article 28 of chapter 22 of the Kansas
8 Statutes Annotated and amendments thereto. In the absence of either
9 finding any of these circumstances, the court shall order the juvenile re-
10 leased or placed in temporary custody as provided in subsection (f).
11 In determining whether to place a juvenile in a juvenile detention fa-
12 cility pursuant to this subsection, the court shall consider all relevant
13 factors, including but not limited to the criteria listed in K.S.A. 38-1640
14 and amendments thereto. If the court orders the juvenile to be detained
15 in a juvenile detention facility, the court shall record the specific findings
16 of fact upon which the order is based.
17 If detention is ordered and the parent was not notified of the hearing
18 and did not appear and later requests a rehearing, the court shall rehear
19 the matter without unnecessary delay.
20 (f) Temporary custody. If the court determines that it is not necessary
21 to detain the juvenile but finds that release to the custody of a parent is
22 not in the best interests of the juvenile, the court may place the juvenile
23 in the temporary custody of a youth residential facility, the commissioner
24 or some other suitable person willing to accept temporary custody.
25 (g) Audio-video communications. Detention hearings may be con-
26 ducted by two-way electronic audio-video communication between the
27 alleged juvenile offender and the judge in lieu of personal presence of
28 the juvenile or the juvenile's counsel in the courtroom from any location
29 within Kansas in the discretion of the court. The juvenile may be accom-
30 panied by the juvenile's counsel during such proceedings or counsel may
31 be personally present in court as long as a means of communication be-
32 tween the juvenile and the juvenile's counsel is available for consultation
33 between the juvenile and the juvenile's counsel in confidence.
34 Sec. 3. K.S.A. 1999 Supp. 38-1640 is hereby amended to read as
35 follows: 38-1640. (a) Except as provided in subsection (b), the following
36 are criteria for determining whether to place a juvenile in a juvenile de-
37 tention facility pursuant to subsection (c) of K.S.A. 38-1624 or subsection
38 (e) of K.S.A. 38-1632, and amendments thereto:
39 (1) There is oral or written verification that the juvenile is a fugitive
40 sought for an offense in another jurisdiction or that the juvenile is cur-
41 rently an escapee from a juvenile detention facility.
42 (2) The juvenile is alleged to have committed an offense which if
43 committed by an adult would constitute a class A, B or C felony if com-
8
1 mitted prior to July 1, 1993, or would constitute an off-grid felony, a
2 nondrug severity level 1, 2, 3, 4, 5, 6 or 7 felony or drug level 1, 2 or 3
3 felony if committed on or after July 1, 1993, or would constitute a crime
4 described in article 35 of chapter 21 of the Kansas Statutes Annotated.
5 (3) The juvenile is awaiting court action on another offense which if
6 committed by an adult would constitute a felony.
7 (4) The juvenile has a record of failure to appear in court or there is
8 probable cause to believe that the juvenile will flee the jurisdiction of the
9 court.
10 (5) The juvenile has a history of violent behavior toward others.
11 (6) The juvenile exhibited seriously assaultive or destructive behavior
12 at the time of being taken into custody and continued such behavior after
13 taken into custody.
14 (7) The juvenile exhibited self-destructive behavior at the time of
15 being taken into custody and continued such behavior after taken into
16 custody.
17 (8) The juvenile has a record of adjudication or conviction of one or
18 more offenses which if committed by an adult would constitute felonies.
19 (9) The juvenile is a juvenile offender who has been expelled from
20 placement in a nonsecure facility as a result of the current alleged offense.
21 (10) The juvenile has been arrested by any court services officer or
22 juvenile community correction officer pursuant to subsection (b) of K.S.A.
23 38-1624 and amendments thereto.
24 (11) The juvenile is alleged to have committed an offense which if
25 committed by an adult would constitute a violation of K.S.A. 21-4201 or
26 subsection (a)(5) of K.S.A. 21-4204, and amendments thereto.
27 (b) No person 18 years of age or more shall be placed in a juvenile
28 detention center.
29 (c) This section shall be part of and supplemental to the Kansas ju-
30 venile justice code.
31 Sec. 4. K.S.A. 1999 Supp. 38-1624, 38-1632 and 38-1640 are hereby
32 repealed.
33 Sec. 5. This act shall take effect and be in force from and after its
34 publication in the statute book.