[As Amended by Senate Committee of the
Whole]
Session of 2000
Substitute for SENATE BILL No. 341
By Committee on Judiciary
4-7
10 AN ACT
concerning driving under the influence of alcohol or
drugs;
11 relating to
suspension of license; administrative hearing
procedure;
12
reinstatement; penalties; amending K.S.A. 1999
Supp. [the powers
13 and duties of
the division of vehicles; relating to the operation of
14 vehicles;
amending K.S.A. 8-1324 and 8-1332 and K.S.A. 1999
15 Supp. 8-235d,
8-237, 8-240,] 8-241, 8-1002, 8-1014 and 8-1567a and
16 repealing the existing
sections.
17
18 Be it enacted by the Legislature of the
State of Kansas:
19 [Section 1. K.S.A.
1999 Supp. 8-235d is hereby amended to
20 read as follows: 8-235d. (a) Drivers'
license examiners of the divi-
21 sion shall accept original
applications for drivers' licenses and in-
22 struction permits, as distinguished
from applications for renewals
23 of licenses, on forms prescribed by
the division and also shall issue
24 instruction permits. Drivers' license
examiners of the division shall
25 examine every applicant for a
driver's license who is required by
26 the provisions of the motor vehicle
drivers' license act to be exam-
27 ined. Such examination shall be held
in the county where the ap-
28 plicant resides or at a place
adjacent thereto reasonably convenient
29 to the applicant or at a location
established by the secretary for the
30 issuance of a commercial driver's
license. Such examination shall
31 include a test of the applicant's
eyesight, the applicant's ability to
32 read and understand highway signs
regulating, warning and di-
33 recting traffic, the applicant's
knowledge of the traffic laws of this
34 state and shall include an actual
demonstration of ability to exercise
35 ordinary and reasonable control in
the operation of motor vehicles
36 which the class of license applied
for would entitle the applicant to
37 drive. At the conclusion of the
examination the examiner shall issue
38 a license to the applicant, if the
applicant has successfully passed
39 the examination with the class of
license the applicant has applied
40 for.
41 [(b) In
addition to the requirements of subsection
(a),:
42
[(1) Any person applying for a driver's
license shall comply with the
43 provisions of subsection (b) of K.S.A.
8-240, and amendments thereto; and
2
1
[(2) any person who is under the
age of 18 years and at least 16
2 years of age, who is applying
for a driver's license for the first time,
3 not including an instruction
permit, shall submit a signed affidavit
4 of either a parent or guardian,
stating that the applicant has com-
5 pleted at least 50 hours of
adult supervised driving with at least 10
6 of those hours being at night.
The required adult supervised driving
7 required in this subsection
shall be conducted by an adult who is
8 at least 21 years of age and is
the holder of a valid commercial
9 driver's license, class A, B or
C driver's license.
10 [Evidence of
failure of any licensee who was required to complete
11 the 50 hours of adult supervised
driving under this subsection shall
12 not be admissible in any action for
the purpose of determining any
13 aspect of comparative negligence or
mitigation of damages.
14 [Sec.
2. K.S.A. 1999 Supp. 8-237 is hereby amended to read
as
15 follows: 8-237. The division of
vehicles shall not issue any driver's
16 license to any person:
17 [(a) Who is
under the age of 16 years, except that the division
18 may issue a restricted class C or M
license, as provided in this act,
19 to any person who: (1) Is at least 15
years of age; (2) has successfully
20 completed an approved course in
driver training; (3) has held an
21 instructional permit issued under the
provisions of K.S.A. 8-239,
22 and amendments thereto, for a period
of at least six months and has
23 completed at least 25 hours of adult
supervised driving; and (4)
24 upon the written application of the
person's parent or guardian. The
25 required adult supervised driving
required in clause (3) above shall
26 be conducted by an adult who is at
least 21 years of age and is the
27 holder of a valid commercial driver's
license, class A, B or C driver's
28 license. Except as hereafter
provided, the application of the parent
29 or guardian shall be submitted to the
division. The governing body
30 of any city, by ordinance, may
require the application of any person
31 who is under 16 years of age and who
resides within the city to be
32 first submitted to the chief law
enforcement officer of the city. The
33 board of county commissioners of any
county, by resolution, may
34 require the application of any person
who is under 16 years of age
35 and who resides within the county and
outside the corporate limits
36 of any city to be first submitted to
the chief law enforcement officer
37 of the county. No ordinance or
resolution authorized by this sub-
38 section shall become effective until
a copy of it is transmitted to the
39 division of vehicles. The chief law
enforcement officer of any city
40 or county which has adopted the
ordinance or resolution authorized
41 by this subsection shall make a
recommendation on the application
42 as to the necessity for the issuance
of the restricted license, and the
43 recommendation shall be transmitted,
with the application, to the
3
1 division of vehicles. If the
division finds that it is necessary to issue
2 the restricted license, it
shall issue a driver's license to the person.
3 [A
restricted class C license issued under this subsection
shall
4 entitle the licensee, while
possessing the license, to operate any mo-
5 tor vehicle in class C, as
designated in K.S.A. 8-234b, and amend-
6 ments thereto. A restricted
class M license shall entitle the licensee,
7 while possessing such license,
to operate a motorcycle. The re-
8 stricted license shall entitle
the licensee to operate the appropriate
9 vehicle at any
time:
10 [(1) While
going to or from or in connection with any job, em-
11 ployment or farm-related
work;
12 [(2) on
days while school is in session, over the most direct
and
13 accessible route between the
licensee's residence and school of en-
14 rollment for the purposes of school
attendance;
15 [(3) when
the licensee is operating a passenger car, at any time
16 when accompanied by an adult who is
the holder of a valid com-
17 mercial driver's license, class A, B
or C driver's license and who is
18 actually occupying a seat beside the
driver; or
19 [(4) when
the licensee is operating a motorcycle, at any time
20 when accompanied by an adult who is
the holder of a valid class M
21 driver's license and who is operating
a motorcycle in the general
22 proximity of the
licensee.
23 [Any licensee
issued a restricted license under this subsection
24 shall not operate any motor vehicle
with nonsibling minor passen-
25 gers and any conviction for violating
this provision shall be con-
26 strued as a moving traffic violation
for the purpose of K.S.A. 8-255,
27 and amendments thereto.
28 [A restricted
driver's license issued under this subsection is sub-
29 ject to suspension or revocation in
the same manner as any other
30 driver's license. In addition, the
division may suspend the restricted
31 driver's license upon receiving
satisfactory evidence that: (1) The
32 licensee has violated the restriction
of the license, (2) the licensee
33 has been involved in two or more
accidents chargeable to the li-
34 censee or (3) the recommendation of
the chief law enforcement of-
35 ficer of any city or county requiring
the recommendation has been
36 withdrawn. The suspended license
shall not be reinstated for one
37 year or until the licensee reaches
the age of 16, whichever period
38 is longer.
39 [Any licensee
issued a restricted license under this subsection
40 who: (1) Is under the age of 16 years
and is convicted of two or more
41 moving traffic violations committed
on separate occasions shall not
42 be eligible to receive a driver's
license which is not restricted in
43 accordance with the provisions of
this subsection until the person
4
1 reaches 17 years of age; or (2)
fails to provide the required affidavit
2 stating that the licensee has
completed at least 50 hours of adult
3 supervised driving with 10 of
those hours being at night shall not
4 be eligible to receive a
driver's license which is not restricted in
5 accordance with the provisions
of this subsection until the person
6 provides such affidavit to the
division or the person reaches 17 years
7 of age, whichever occurs
first.
8 [Any
licensee issued a restricted license under this subsection
on
9 and after July 1, 1999, shall
provide prior to reaching 16 years of
10 age, a signed affidavit of either a
parent or guardian, stating that
11 the applicant has completed the
required 25 hours prior to being
12 issued a restricted license and 25
hours of additional adult super-
13 vised driving. Of the 50 hours
required by this subsection, at least
14 10 of those hours shall be at night.
The adult supervised driving
15 shall be conducted by an adult who is
at least 21 years of age and
16 is the holder of a valid commercial
driver's license, class A, B or C
17 driver's license.
18 [Evidence of
failure of any licensee who was required to complete
19 the 50 hours of adult supervised
driving under this subsection shall
20 not be admissible in any action for
the purpose of determining any
21 aspect of comparative negligence or
mitigation of damages.
22 [(b) Who is
under the age of 18 years, except as provided in
23 K.S.A. 1999 Supp. 8-2,147, and
amendments thereto, for the pur-
24 pose of driving a commercial or class
A or B motor vehicle.
25 [(c) Whose
license is currently revoked, suspended or canceled
26 in this or any other state, except as
provided in K.S.A. 8-256, and
27 amendments thereto.
28 [(d) Who is
a habitual drunkard, habitual user of narcotic drugs
29 or habitual user of any other drug to
a degree which renders the
30 user incapable of safely driving a
motor vehicle.
31 [(e) Who
has previously been adjudged to be afflicted with or
32 suffering from any mental disability
or disease and who, at the time
33 of making application for a driver's
license, has not been restored
34 to capacity in the manner provided by
law. Application of this lim-
35 itation to any person known to have
suffered any seizure disorder
36 is subject to the provisions of
paragraph (7) of subsection (e) of
37 K.S.A. 8-247, and amendments
thereto.
38 [(f) Who is
required by the motor vehicle drivers' license act to
39 take an examination, unless the
person has successfully passed the
40 examination.
41 [(g) Who is
at least 16 years of age and less than 17 years of
42 age, who is applying for a driver's
license for the first time since
43 reaching 16 years of age and who,
three times or more, has been
5
1 adjudged to be a traffic
offender under the Kansas juvenile code or
2 a juvenile offender under the
Kansas juvenile justice code, by rea-
3 son of violation of one or more
statutes regulating the movement of
4 traffic on the roads, streets
or highways of this state, except that, in
5 the discretion of the director,
the person may be issued a driver's
6 license which is restricted in
the manner the division deems to be
7 appropriate. No person
described by this subsection shall be eligi-
8 ble to receive a driver's
license which is not restricted until the
9 person has reached the age of
17 years.
10
[(h) Who has not submitted proof of age or proof of
identity, as re-
11 quired by K.S.A. 8-240, and amendments
thereto.
12
[(i) Whose presence in the United States is
in violation of federal
13 immigration laws.
14 [Sec.
3. K.S.A. 1999 Supp. 8-240 is hereby amended to read
as
15 follows: 8-240. (a) Every application
for an instruction permit shall
16 be made upon a form furnished by the
division of vehicles and ac-
17 companied by a fee of $2 for class A,
B, C or M and $5 for all
18 commercial classes. Every other
application shall be made upon a
19 form furnished by the division and
accompanied by an examination
20 fee of $3, unless a different fee is
required by K.S.A. 8-241, and
21 amendments thereto, and by the proper
fee for the license for which
22 the application is made. If the
applicant is not required to take an
23 examination the examination fee shall
not be required. The exami-
24 nation shall consist of three tests,
as follows: (1) Vision; (2) written;
25 and (3) driving. If the applicant
fails the vision test, the applicant
26 may have correction of vision made
and take the vision test again
27 without any additional fee. If an
applicant fails the written test, the
28 applicant may take such test again
upon the payment of an addi-
29 tional examination fee of $1.50. If
an applicant fails the driving test,
30 the applicant may take such test
again upon the payment of an
31 additional examination fee of $1.50.
If an applicant fails to pass all
32 three of the tests within a period of
six months from the date of
33 original application and desires to
take additional tests, the appli-
34 cant shall file an application for
reexamination upon a form fur-
35 nished by the division, which shall
be accompanied by a reexami-
36 nation fee of $3, except that any
applicant who fails to pass the
37 written or driving portion of an
examination four times within a six-
38 month period, shall be required to
wait a period of six months from
39 the date of the last failed
examination before additional examina-
40 tions may be given. Upon the filing
of such application and the
41 payment of such reexamination fee,
the applicant shall be entitled
42 to reexamination in like manner and
subject to the additional fees
43 and time limitation as provided for
examination on an original ap-
6
1 plication. If the applicant
passes the reexamination, the applicant
2 shall be issued the classified
driver's license for which the applicant
3 originally applied, which
license shall be issued to expire as if the
4 applicant had passed the
original examination.
5
[(b) (1) For the purposes of
obtaining any driver's license, an
6 applicant,
except for any applicant under 16 years of age, shall
provide
7 at least two of the documents
specified in K.S.A. 8-246, and amendments
8 thereto. Any applicant under
16 years of age shall provide at least one of
9 the documents specified in
K.S.A. 8-246, and amendments thereto, which
10 shall contain the date of birth of
the applicant and such applicant's parent
11 or guardian shall sign the
application for any driver's license shall
submit,
12 with the application, proof of age or
proof of identity, or both, as the
13 division may require.
14
[(2) An applicant who submits proof of age or
of identity issued by
15 an entity other than a state or the
United States shall also submit such
16 proof as the division may require that
the applicant is lawfully present in
17 the United States.
18
[(3) The division shall not issue any
driver's license to any person
19 who is not lawfully present in the
United States.
20
[(4) The division shall not issue any
driver's license to any person
21 who is not a resident of the state of
Kansas, except as provided in K.S.A.
22 1999 Supp. 8-2,148, and amendments
thereto.
23
[(5) The parent or guardian of an applicant
under 16 years of age
24 shall sign the application for any
driver's license submitted by such
25 applicant.
26 [(c) Every
application shall state the name, date of birth, sex
27 and residence address of the
applicant, and briefly describe the ap-
28 plicant, and shall state whether the
applicant has theretofore been
29 licensed as a driver, and, if so,
when and by what state or country,
30 and whether any such license has ever
been suspended or revoked,
31 or whether an application has ever
been refused, and, if so, the date
32 of and reason for such suspension,
revocation or refusal. In addition
33 to the above criteria, applications
for commercial drivers' licenses
34 and instruction permits for
commercial licenses must include the
35 following: The applicant's social
security number; the person's sig-
36 nature; the person's color
photograph; certifications, including
37 those required by 49 C.F.R.
383.71(a), effective January 1, 1991; a
38 consent to release driving record
information; and, any other infor-
39 mation required by the
division.
40 [(d) When
an application is received from a person previously
41 licensed in another jurisdiction, the
division shall request a copy of
42 the driver's record from the other
jurisdiction. When received, the
43 driver's record shall become a part
of the driver's record in this
7
1 state with the same force and
effect as though entered on the driver's
2 record in this state in the
original instance.
3
[(e) When the division receives a request for a driver's
record
4 from another licensing
jurisdiction the record shall be forwarded
5 without charge.
6
[(f) A fee shall be charged as follows:
7
[(1) For a class C driver's license issued to a person at
least 21
8 years of age, but less than 65
years of age, $12;
9
[(2) for a class C driver's license issued to a person less
than 21
10 years of age or 65 years of age or
older, or a farm permit, $8;
11 [(3) for a
class M driver's license issued to a person at least 21
12 years of age, but less than 65 years
of age, $6.50;
13 [(4) for a
class M driver's license issued to a person less than
21
14 years of age or 65 years of age or
older, $5;
15 [(5) for a
class A or B driver's license issued to a person who is
16 at least 21 years of age, but less
than 65 years of age, $18;
17 [(6) for a
class A or B driver's license issued to a person less
18 than 21 years of age or 65 years of
age or older, $12; or
19 [(7) for
any class of commercial driver's license, $14.
20 [A fee of $10
shall be charged for each commercial driver's license
21 endorsement, except air brake
endorsements which shall have no
22 charge.
23 [If one fails to
make an original application or renewal applica-
24 tion for a driver's license within
the time required by law, or fails
25 to make application within 60 days
after becoming a resident of
26 Kansas, a penalty of $1 shall be
added to the fee charged for the
27 driver's license.]
28
Section 1. [Sec.
4.] K.S.A. 1999 Supp. 8-241 is hereby amended to
29 read as follows: 8-241. (a) Except as
provided in K.S.A. 8-2,125 through
30 8-2,142, and amendments thereto, any person
licensed to operate a motor
31 vehicle in this state shall submit to an
examination whenever: (1) The
32 division of vehicles has good cause to
believe that such person is incom-
33 petent or otherwise not qualified to be
licensed; or (2) the division of
34 vehicles has suspended such person's
license pursuant to K.S.A. 8-1014,
35 and amendments thereto, as the result of a
test refusal, test failure or
36 conviction for a violation of K.S.A.
8-1567, and amendments thereto, or
37 a violation of city ordinance or county
resolution prohibiting the acts
38 prohibited by K.S.A. 8-1567 and amendments
thereto, except that no
39 person shall have to submit to and
successfully complete an examination
40 more than once as the result of separate
suspensions arising out of the
41 same occurrence.
42 (b) When a person
is required to submit to an examination pursuant
43 to subsection (a)(1), the fee for such
examination shall be in the amount
8
1 provided by K.S.A 8-240, and
amendments thereto. When a person is
2 required to submit to an examination
pursuant to subsection (a)(2), the
3 fee for such examination shall be $5.
In addition, any person required to
4 submit to an examination pursuant to
subsection (a)(2) shall be required,
5 at the time of examination, to pay a
reinstatement fee of $50 $100 after
6 the first occurrence, $200 after
the second occurrence, $300 after the third
7 occurrence and $400 after the
fourth or subsequent occurrence. All ex-
8 amination fees collected pursuant to
this section shall be disposed of as
9 provided in K.S.A. 8-267, and
amendments thereto. All reinstatement
10 fees collected pursuant to this section
shall be remitted to the state trea-
11 surer, who shall deposit the entire amount
in the state treasury and credit
12 50% to the community alcoholism and
intoxication programs fund created
13 pursuant to K.S.A. 41-1126, and amendments
thereto, 20% to the juvenile
14 detention facilities fund created by K.S.A.
79-4803, and amendments
15 thereto, 20% to the forensic laboratory and
materials fee fund cited in
16 K.S.A. 28-176, and amendments thereto, and
10% to the driving under
17 the influence equipment fund created by
K.S.A. 75-5660, and amend-
18 ments thereto. Moneys credited to
the forensic laboratory and materials
19 fee fund as provided herein shall be used
to supplement existing appro-
20 priations and shall not be used to supplant
general fund appropriations
21 to the Kansas bureau of investigation.
22 (c) When an
examination is required pursuant to subsection (a), at
23 least five days' written notice of the
examination shall be given to the
24 licensee. The examination administered
hereunder shall be at least equiv-
25 alent to the examination required by
subsection (e) of K.S.A. 8-247, and
26 amendments thereto, with such additional
tests as the division deems
27 necessary. Upon the conclusion of such
examination, the division shall
28 take action as may be appropriate and may
suspend or revoke the license
29 of such person or permit the licensee to
retain such license, or may issue
30 a license subject to restrictions as
permitted under K.S.A. 8-245, and
31 amendments thereto.
32 (d) Refusal or
neglect of the licensee to submit to an examination as
33 required by this section shall be grounds
for suspension or revocation of
34 the license.
35 Sec.
2. [5.] K.S.A. 1999
Supp. 8-1002 is hereby amended to read as
36 follows: 8-1002. (a) Whenever a test is
requested pursuant to this act and
37 results in either a test failure or test
refusal, a law enforcement officer's
38 certification shall be prepared. If the
person had been driving a com-
39 mercial motor vehicle, as defined in K.S.A.
8-2,128, and amendments
40 thereto, a separate certification pursuant
to K.S.A. 8-2,145 and amend-
41 ments thereto shall be prepared in addition
to any certification required
42 by this section. The certification required
by this section shall be signed
43 by one or more officers to certify:
9
1 (1) With
regard to a test refusal, that: (A) There existed reasonable
2 grounds to believe the person was
operating or attempting to operate a
3 vehicle while under the influence of
alcohol or drugs, or both, or to be-
4 lieve that the person had been
driving a commercial motor vehicle, as
5 defined in K.S.A. 8-2,128, and
amendments thereto, while having alcohol
6 or other drugs in such person's
system; (B) the person had been placed
7 under arrest, was in custody or had
been involved in a vehicle accident
8 or collision; (C) a law enforcement
officer had presented the person with
9 the oral and written notice required
by K.S.A. 8-1001, and amendments
10 thereto; and (D) the person refused to
submit to and complete a test as
11 requested by a law enforcement officer.
12 (2) With regard
to a test failure, that: (A) There existed reasonable
13 grounds to believe the person was operating
a vehicle while under the
14 influence of alcohol or drugs, or both, or
to believe that the person had
15 been driving a commercial motor vehicle, as
defined in K.S.A. 8-2,128,
16 and amendments thereto, while having
alcohol or other drugs in such
17 person's system; (B) the person had been
placed under arrest, was in
18 custody or had been involved in a vehicle
accident or collision; (C) a law
19 enforcement officer had presented the
person with the oral and written
20 notice required by K.S.A. 8-1001, and
amendments thereto; and (D) the
21 result of the test showed that the person
had an alcohol concentration of
22 .08 or greater in such person's blood or
breath.
23 (3) With regard
to failure of a breath test, in addition to those matters
24 required to be certified under subsection
(a)(2), that: (A) The testing
25 equipment used was certified by the Kansas
department of health and
26 environment; (B) the testing procedures
used were in accordance with
27 the requirements set out by the Kansas
department of health and envi-
28 ronment; and (C) the person who operated
the testing equipment was
29 certified by the Kansas department of
health and environment to operate
30 such equipment.
31 (b) For purposes
of this section, certification shall be complete upon
32 signing, and no additional acts of oath,
affirmation, acknowledgment or
33 proof of execution shall be required. The
signed certification or a copy
34 or photostatic reproduction thereof shall
be admissible in evidence in all
35 proceedings brought pursuant to this act,
and receipt of any such certi-
36 fication, copy or reproduction shall accord
the department authority to
37 proceed as set forth herein. Any person who
signs a certification submit-
38 ted to the division knowing it contains a
false statement is guilty of a class
39 B nonperson misdemeanor.
40 (c) When the
officer directing administration of the testing deter-
41 mines that a person has refused a test and
the criteria of subsection (a)(1)
42 have been met or determines that a person
has failed a test and the criteria
43 of subsection (a)(2) have been met, the
officer shall serve upon the person
10
1 notice of suspension of driving
privileges pursuant to K.S.A. 8-1014, and
2 amendments thereto. If the
determination is made while the person is
3 still in custody, service shall be
made in person by the officer on behalf
4 of the division of vehicles. In cases
where a test failure is established by
5 a subsequent analysis of a breath,
blood or urine sample, the officer shall
6 serve notice of such suspension in
person or by another designated officer
7 or by mailing the notice to the
person at the address provided at the time
8 of the test.
9 (d) In
addition to the information required by subsection (a), the law
10 enforcement officer's certification and
notice of suspension shall contain
11 the following information: (1) The person's
name, driver's license number
12 and current address; (2) the reason and
statutory grounds for the suspen-
13 sion; (3) the date notice is being served
and a statement that the effective
14 date of the suspension shall be the 30th
calendar day after the date of
15 service; (4) the right of the person to
request an administrative hearing;
16 and (5) the procedure the person must
follow to request an administrative
17 hearing. The law enforcement officer's
certification and notice of suspen-
18 sion shall also inform the person that all
correspondence will be mailed
19 to the person at the address contained in
the law enforcement officer's
20 certification and notice of suspension
unless the person notifies the di-
21 vision in writing of a different address or
change of address. The address
22 provided will be considered a change of
address for purposes of K.S.A.
23 8-248, and amendments thereto, if the
address furnished is different from
24 that on file with the division.
25 (e) If a person
refuses a test or if a person is still in custody when it
26 is determined that the person has failed a
test, the officer shall take any
27 license in the possession of the person
and, if the license is not expired,
28 suspended, revoked or canceled, shall issue
a temporary license effective
29 until the 30th calendar day after the date
of service set out in the law
30 enforcement officer's certification and
notice of suspension. If the test
31 failure is established by a subsequent
analysis of a breath or blood sample,
32 the temporary license shall be served
together with the copy of the law
33 enforcement officer's certification and
notice of suspension. A temporary
34 license issued pursuant to this subsection
shall bear the same restrictions
35 and limitations as the license for which it
was exchanged. Within five days
36 after the date of service of a copy of the
law enforcement officer's certi-
37 fication and notice of suspension the
officer's certification and notice of
38 suspension, along with any licenses taken,
shall be forwarded to the
39 division.
40 (f) Upon receipt
of the law enforcement officer's certification, the
41 division shall review the certification to
determine that it meets the
42 requirements of subsection (a). Upon so
determining, the division shall
43 proceed to suspend the person's driving
privileges in accordance with the
11
1 notice of suspension previously
served. If the requirements of subsection
2 (a) are not met, the division shall
dismiss the administrative proceeding
3 and return any license surrendered by
the person.
4
(g) If the person mails a written request which is
postmarked within
5 10 days after service of the
notice, if by personal service, or 13 days after
6 service, if by mail, the
division shall schedule a hearing in the county
7 where the alleged violation
occurred, or in a county adjacent thereto. The
8 licensee may request that
subpoenas be issued in accordance with the
9 notice provided pursuant to
subsection (d). Any request made by the
10 licensee to subpoena witnesses must
be made in writing at the time the
11 hearing is requested and must
include the name and current address of
12 such witnesses and, except for the
law enforcement officer or officers
13 certifying refusal or failure, a
statement of how the testimony of such
14 witness is relevant. Upon receiving
a timely request for a hearing, the
15 division shall mail to the person
notice of the time, date and place of
16 hearing in accordance with
subsection (l) and extend the person's tem-
17 porary driving privileges until the
date set for the hearing by the division.
18 (h)
(1) If the officer certifies that the person refused the test,
the
19 scope of the hearing shall be
limited to whether: (A) A law enforcement
20 officer had reasonable grounds to
believe the person was operating or
21 attempting to operate a vehicle
while under the influence of alcohol or
22 drugs, or both, or to believe that
the person had been driving a com-
23 mercial motor vehicle, as defined
in K.S.A. 8-2,128, and amendments
24 thereto, while having alcohol or
other drugs in such person's system; (B)
25 the person was in custody or
arrested for an alcohol or drug related of-
26 fense or was involved in a vehicle
accident or collision resulting in prop-
27 erty damage, personal injury or
death; (C) a law enforcement officer had
28 presented the person with the oral
and written notice required by K.S.A.
29 8-1001, and amendments thereto; and
(D) the person refused to submit
30 to and complete a test as requested
by a law enforcement officer.
31 (2) If
the officer certifies that the person failed the test, the scope
of
32 the hearing shall be limited to
whether: (A) A law enforcement officer
33 had reasonable grounds to believe
the person was operating a vehicle
34 while under the influence of
alcohol or drugs, or both, or to believe that
35 the person had been driving a
commercial motor vehicle, as defined in
36 K.S.A. 8-2,128, and amendments
thereto, while having alcohol or other
37 drugs in such person's system; (B)
the person was in custody or arrested
38 for an alcohol or drug related
offense or was involved in a vehicle accident
39 or collision resulting in property
damage, personal injury or death; (C) a
40 law enforcement officer had
presented the person with the oral and writ-
41 ten notice required by K.S.A.
8-1001, and amendments thereto; (D) the
42 testing equipment used was
reliable; (E) the person who operated the
43 testing equipment was qualified;
(F) the testing procedures used were
12
1 reliable; (G) the test result
determined that the person had an alcohol
2 concentration of .08 or
greater in such person's blood or breath; and (H)
3 the person was operating a
vehicle.
4
(i) At a hearing pursuant to this section, or upon court
review of an
5 order entered at such a
hearing, an affidavit of the custodian of records
6 at the Kansas department of
health and environment stating that the
7 breath testing device was
certified and the operator of such device was
8 certified on the date of the
test shall be admissible into evidence in the
9 same manner and with the same
force and effect as if the certifying officer
10 or employee of the Kansas
department of health and environment had
11 testified in person. Such affidavit
shall be admitted to prove such relia-
12 bility without further foundation
requirement. A certified operator of a
13 breath testing device shall be
competent to testify regarding the proper
14 procedures to be used in conducting
the test.
15 (j) At a
hearing pursuant to this section, or upon court review of
an
16 order entered at such hearing, in
which the report of blood test results
17 have been prepared by the Kansas
bureau of investigation or other fo-
18 rensic laboratory of a state or
local law enforcement agency are to be
19 introduced as evidence, the report,
or a copy of the report, of the findings
20 of the forensic examiner shall be
admissible into evidence in the same
21 manner and with the same force and
effect as if the forensic examiner
22 who performed such examination,
analysis, comparison or identification
23 and prepared the report thereon had
testified in person.
24 (k) If no
timely request for hearing is made, the suspension
period
25 imposed pursuant to this section
shall begin upon the expiration of the
26 temporary license granted under
subsection (e). If a timely request for
27 hearing is made, the hearing shall
be held within 30 days of the date the
28 request for hearing is received by
the division, except that failure to hold
29 such hearing within 30 days shall
not be cause for dismissal absent a
30 showing of prejudice. At the
hearing, the director or the representative
31 of the director, shall either
affirm the order of suspension or suspension
32 and restriction or dismiss the
administrative action. If the division is un-
33 able to hold a hearing within 30
days of the date upon which the request
34 for hearing is received, the
division shall extend the person's temporary
35 driving privileges until the date
set for the hearing by the division. No
36 extension of temporary driving
privileges shall be issued for continuances
37 requested by or on behalf of the
licensee. If the person whose privileges
38 are suspended is a nonresident
licensee, the license of the person shall
39 be forwarded to the appropriate
licensing authority in the person's state
40 of residence if the result at the
hearing is adverse to such person or if no
41 timely request for a hearing is
received.
42 (l) All
notices affirming or canceling a suspension under this
section,
43 all notices of a hearing held under
this section and all issuances of tem-
13
1 porary driving privileges
pursuant to subsection (k) shall be sent by first-
2 class mail and a U.S. post
office certificate of mailing shall be obtained
3 therefor. All notices so
mailed shall be deemed received three days after
4 mailing.
5
(m) (g) The division shall prepare and
distribute forms for use by law
6 enforcement officers in giving the
notice required by this section.
7
(n) This section and the applicable provisions
contained in subsec-
8 tions (d) and (e) of K.S.A.
8-255 and amendments thereto constitute the
9 administrative procedures to
be used for all administrative hearings held
10 under this act. To the extent that
this section and any other provision of
11 law conflicts, this section
prevails.
12 (o)
(h) The provisions of K.S.A. 60-206 and amendments
thereto re-
13 garding the computation of time shall not
be applicable in determining
14 the effective date of suspension set out in
subsection (d) or the time for
15 requesting an administrative
hearing set out in subsection (g). ``Calendar
16 day'' when used in this
section act shall mean that every day shall
be
17 included in computations of time whether a
week day, Saturday, Sunday
18 or holiday.
19 Sec.
3. [6.] K.S.A. 1999
Supp. 8-1014 is hereby amended to read as
20 follows: 8-1014. (a) Except as provided by
subsection (e) and K.S.A. 8-
21 2,142, and amendments thereto, if a person
refuses a test, the division,
22 pursuant to K.S.A. 8-1002, and amendments
thereto, shall suspend the
23 person's driving privileges for one
year.
24 (b) Except as
provided by subsections (c) and (e) and K.S.A. 8-2,142,
25 and amendments thereto, if a person fails a
test or has an alcohol or drug-
26 related conviction in this state, the
division shall:
27 (1) On the
person's first occurrence, suspend the person's driving
28 privileges for 30 days, then restrict the
person's driving privileges as pro-
29 vided by K.S.A. 8-1015, and amendments
thereto, for an additional 330
30 days; and
31 (2) on the
person's second or a subsequent occurrence, suspend the
32 person's driving privileges for one
year.
33 (c) Except as
provided by subsection (e) and K.S.A. 8-2,142, and
34 amendments thereto, if a person who is less
than 21 years of age fails a
35 test or has an alcohol or drug-related
conviction in this state, the division
36 shall:
37 (1) On the
person's first occurrence, suspend the person's driving
38 privileges for at least 60 days but not
more than one year;
39 (2) on the
person's second or a subsequent occurrence suspend the
40 person's driving privileges for one year;
or
41 (2)
(3) if such person has entered a diversion agreement
under K.S.A.
42 12-4412 et seq., and amendments
thereto, or K.S.A. 22-2906 et seq., and
43 amendments thereto, suspend the person's
driving privileges for the term
14
1 of such diversion agreement.
2
(d) Whenever the division is notified by an alcohol and drug
safety
3 action program that a person has
failed to complete any alcohol and drug
4 safety action education or treatment
program ordered by a court for a
5 conviction of a violation of K.S.A.
8-1567, and amendments thereto, the
6 division shall suspend the person's
driving privileges until the division
7 receives notice of the person's
completion of such program.
8 (e) Except
as provided in K.S.A. 8-2,142, and amendments thereto,
9 if a person's driving privileges are
subject to suspension pursuant to this
10 section for a test refusal, test failure or
alcohol or drug-related conviction
11 arising from the same arrest, the period of
such suspension shall not
12 exceed the longest applicable period
authorized by subsection (a), (b) or
13 (c), and such suspension periods shall not
be added together or otherwise
14 imposed consecutively. In addition, in
determining the period of such
15 suspension as authorized by subsection (a),
(b) or (c), such person shall
16 receive credit for any period of time for
which such person's driving
17 privileges were suspended while awaiting
any hearing or final order au-
18 thorized by this act.
19 If a person's driving
privileges are subject to restriction pursuant to
20 this section for a test failure or alcohol
or drug-related conviction arising
21 from the same arrest, the restriction
periods shall not be added together
22 or otherwise imposed consecutively. In
addition, in determining the pe-
23 riod of restriction, the person shall
receive credit for any period of sus-
24 pension imposed for a test refusal arising
from the same arrest.
25 (f) If the
division has taken action under subsection (a) for a test
26 refusal or under subsection (b) or (c) for
a test failure and such action is
27 stayed pursuant to K.S.A. 8-259, and
amendments thereto, or if tempo-
28 rary driving privileges are issued pursuant
to subsection (k) of K.S.A. 8-
29 1002, and amendments thereto, the stay or
temporary driving privileges
30 shall not prevent the division from taking
the action required by subsec-
31 tion (b) or (c) for an alcohol or
drug-related conviction.
32 (g) Upon
restricting a person's driving privileges pursuant to this sec-
33 tion, the division shall issue without
charge a driver's license which shall
34 indicate on the face of the license that
restrictions have been imposed on
35 the person's driving privileges and that a
copy of the order imposing the
36 restrictions is required to be carried by
the person for whom the license
37 was issued any time the person is operating
a motor vehicle on the high-
38 ways of this state.
39 [Sec. 7. K.S.A.
8-1324 is hereby amended to read as follows: 8-
40 1324. (a) Any resident may make
application to the division of ve-
41 hicles and be issued one
identification card, certified by the regis-
42 trant and attested by the division as
to true name, correct age,
43 photograph and other identifying data
as the division may require.
15
1 Every application for an
identification card shall be signed and
2 verified by the applicant and
shall contain such bona fide docu-
3 mentary evidence of the age and
identity of such applicant as the
4 division may require.
The applicant, except for any applicant under
16
5 years of age, shall provide
at least two of the documents specified in
6 K.S.A. 8-1326, and amendments
thereto. Any applicant under 16 years
7 of age shall provide at least
one of the documents specified in K.S.A. 8-
8 1326, and amendments thereto,
and the applicant's parent or guardian
9 shall sign the application
for the identification card.
10
[(b) An applicant who submits documentary
evidence under subsec-
11 tion (a), issued by an entity other than
a state or the United States shall
12 also submit such proof as the division
may require that the applicant is
13 lawfully present in the United
States.
14
[(c) The division shall not issue an
identification card to any person
15 who is not lawfully present in the
United States.
16
[(d) The parent or guardian of an applicant
under 16 years of age
17 shall sign the application for an
identification card submitted by such
18 applicant.
19
[(e) The division shall require
payment of a fee of $6 $8 at
the
20 time application for an
identification card is made, except that per-
21 sons who are 65 or more years of age
or who are handicapped, as
22 defined in K.S.A. 8-1,124, and
amendments thereto, shall be re-
23 quired to pay a fee of only
$2 $4.
24
[(b) (f) For the
purposes of K.S.A. 8-1324 through 8-1328, and
25 amendments thereto, a person shall be
deemed to be a resident of
26 the state if:
27
[(1) The person owns, leases or rents a
place of domicile in this
28 state;
29 [(2) the
person engages in a trade, business or profession in
this
30 state;
31 [(3) the
person is registered to vote in this state;
32 [(4) the
person enrolls the person's child in a school in this
state;
33 or
34 [(5) the
person registers the person's motor vehicle in this
state.
35 [Sec.
8. K.S.A. 8-1332 is hereby amended to read as follows:
8-
36 1332. (a) When
used in reference to an identification card, ``can-
37 cellation'' means that an
identification card is terminated without
38 prejudice and must be surrendered.
Cancellation of a card may be
39 made when such card has been issued
through error, because the
40 person is not entitled to a card
or when voluntarily surrendered to the
41 division.
42
[(b) The division is hereby authorized to cancel
any identification
43 card upon determining that the
cardholder was not entitled to the issuance
16
1 of such card or that the
cardholder failed to give the required or correct
2 information in such person's
application or committed any fraud in mak-
3 ing such application.
4
[(c) Upon cancellation of an identification
card the cardholder must
5 surrender the identification card
so canceled to the division.]
6 Sec.
4. [9.] K.S.A. 1999
Supp. 8-1567a is hereby amended to read
7 as follows: 8-1567a. (a) It shall be
unlawful for any person less than 21
8 years of age to operate or attempt to
operate a vehicle in this state with
9 a breath or blood alcohol content of
.02 or greater.
10 (b) Whenever a
law enforcement officer determines that a breath or
11 blood alcohol test is to be required of a
person less than 21 years of age
12 pursuant to K.S.A. 8-1001 or K.S.A. 8-2,142
and amendments thereto, in
13 addition to any other notices required by
law, the law enforcement officer
14 shall provide written and oral notice that:
(1) It is unlawful for any person
15 less than 21 years of age to operate or
attempt to operate a vehicle in this
16 state with a breath or blood alcohol
content of .02 or greater; and (2) if
17 the person is less than 21 years of age at
the time of the test request and
18 submits to and completes the test or tests
and the test results show an
19 alcohol concentration of .02 or greater,
the person's driving privileges will
20 be suspended for at least 60 days but
not more than one year.
21 (c) Any
suspension and restriction of driving privileges pursuant to
22 this section shall be in addition to any
disqualification from driving a
23 commercial motor vehicle pursuant to K.S.A.
8-2,142 and amendments
24 thereto.
25 (d) Whenever a
breath or blood alcohol test is requested pursuant to
26 K.S.A. 8-1001 and amendments thereto, from
a person less than 21 years
27 of age, and results in a test result of .02
or greater, but less than .08, a
28 law enforcement officer's certification
under this section shall be pre-
29 pared. The certification required by this
section shall be signed by one
30 or more officers to certify that:
31 (1)
(A) There existed reasonable grounds to believe the person
was
32 operating a vehicle while under the
influence of alcohol or drugs, or both,
33 or to believe that the person had been
driving a commercial motor ve-
34 hicle, as defined in K.S.A. 8-2,128 and
amendments thereto, while having
35 alcohol or other drugs in such person's
system; (B) the person had been
36 placed under arrest, was in custody or had
been involved in a vehicle
37 accident or collision; (C) a law
enforcement officer had presented the
38 person with the oral and written notice
required by K.S.A. 8-1001 and
39 amendments thereto, and the oral and
written notice required by this
40 section; (D) that the person was less than
21 years of age at the time of
41 the test request; and (E) the result of the
test showed that the person
42 had an alcohol concentration of .02 or
greater in such person's blood or
43 breath.
17
1 (2) With
regard to a breath test, in addition to those matters required
2 to be certified under subsection
(d)(1), that: (A) The testing equipment
3 used was certified by the Kansas
department of health and environment;
4 (B) the testing procedures used were
in accordance with the require-
5 ments set out by the Kansas
department of health and environment; and
6 (C) the person who operated the
testing equipment was certified by the
7 Kansas department of health and
environment to operate such
8 equipment.
9 (e) If a
hearing is requested as a result of a law enforcement officer's
10 certification under this section, the scope
of the hearing shall be limited
11 to whether: (1) A law enforcement officer
had reasonable grounds to
12 believe the person was operating a vehicle
while under the influence of
13 alcohol or drugs, or both, or to believe
that the person had been driving
14 a commercial motor vehicle, as defined in
K.S.A. 8-2,128 and amend-
15 ments thereto, while having alcohol or
other drugs in such person's sys-
16 tem; (2) the person was in custody or
arrested for an alcohol or drug
17 related offense or was involved in a motor
vehicle accident or collision
18 resulting in property damage, personal
injury or death; (3) a law enforce-
19 ment officer had presented the person with
the oral and written notice
20 required by K.S.A. 8-1001 and amendments
thereto, and the oral and
21 written notice required by this section;
(4) the testing equipment used
22 was reliable; (5) the person who operated
the testing equipment was
23 qualified; (6) the testing procedures used
were reliable; (7) the test result
24 determined that the person had an alcohol
concentration of .02 or greater
25 in such person's blood or breath; (8) the
person was operating a vehicle;
26 and (9) the person was less than 21 years
of age at the time a test was
27 requested.
28 (f) If a person
less than 21 years of age submits to a breath or blood
29 alcohol test requested pursuant to K.S.A.
8-1001 or K.S.A. 8-2,142 and
30 amendments thereto, and produces a test
result of .02 or greater, but less
31 than .08, the person's driving privileges
shall be suspended for at least 60
32 days but not more than one year.
33 (g) Except where
there is a conflict between this section and K.S.A.
34 8-1001 and 8-1002 and amendments thereto,
the provisions of K.S.A. 8-
35 1001 and 8-1002 and amendments thereto,
shall be applicable to pro-
36 ceedings under this section.
37 (h) Any
determination under this section that a person less than 21
38 years of age had a test result of .02 or
greater, but less than .08, and any
39 resulting administrative action upon the
person's driving privileges, upon
40 the first occurrence of such test result
and administrative action, shall not
41 be considered by any insurance company in
determining the rate charged
42 for any automobile liability insurance
policy or whether to cancel any such
43 policy under the provisions of subsection
(4)(a) of K.S.A. 40-277 and
18
1 amendments thereto.
2 New Sec.
5. [10.] (a) Any
licensee served with an officer's certifi-
3 cation and notice of suspension
pursuant to K.S.A. 8-1002, and amend-
4 ments thereto, may request an
administrative hearing. Such request may
5 be made either by:
6 (1) Mailing
a written request which is postmarked 10 calendar days
7 after service of notice, if such
notice was given by personal service;
8 (2) mailing
a written request which is postmarked 13 calendar days
9 after service of notice, if such
notice was given by mail; or
10 (3) transmitting
a written request by electronic facsimile which is re-
11 ceived by the division within 10 calendar
days after service of the notice,
12 if such notice was given by personal
service; or
13 (4) transmitting
a written request by electronic facsimile which is re-
14 ceived by the division within 13 calendar
days after service, if such notice
15 was given by mail.
16 (b) If the
licensee makes a timely request for an administrative hear-
17 ing, any temporary license issued pursuant
to K.S.A. 8-1002, and amend-
18 ments thereto, shall remain in effect until
the 30th calendar day after the
19 effective date of the decision made by the
division.
20 (c) If the
licensee fails to make a timely request for an administrative
21 hearing, the licensee's driving privileges
shall be suspended or suspended
22 and then restricted in accordance with the
notice of suspension served
23 pursuant to K.S.A. 8-1002, and amendments
thereto.
24 (d) Upon receipt
of a timely request for a hearing, the division shall
25 forthwith set the matter for hearing before
a representative of the director
26 and provide notice of the extension of
temporary driving privileges. The
27 hearing shall be conducted in the county
where the arrest occurred or a
28 county adjacent thereto. At the discretion
of the division, the hearing may
29 be conducted by telephone or video
conference call.
30 (e) Except as
provided in subsection (f), prehearing discovery shall
31 be limited to the following documents,
which shall be provided to the
32 licensee or the licensee's attorney no
later than five calendar days prior
33 to the date of the hearing:
34 (1) The officer's
certification and notice of suspension;
35 (2) in the case
of a breath or blood test failure, copies of documents
36 indicating the result of any evidentiary
breath or blood test administered
37 at the request of a law enforcement
officer;
38 (3) in the case
of a breath test failure, a copy of the affidavit showing
39 certification of the officer and the
instrument; and
40 (4) in the case
of a breath test failure, a copy of the Kansas depart-
41 ment of health and environment testing
protocol checklist.
42 (f) At or prior
to the time the notice of hearing is sent, the division
43 shall issue an order allowing the licensee
or the licensee's attorney to
19
1 review any video or audio tape record
made of the events upon which
2 the administrative action is based.
Such review shall take place at a rea-
3 sonable time designated by the law
enforcement agency and shall be
4 made at the location where the video
or audio tape is kept. The licensee
5 may obtain a copy of any such video
or audio tape upon request and upon
6 payment of a reasonable fee to the
law enforcement agency, not to exceed
7 $25 per tape.
8
(g) Witnesses at the hearing shall be limited to the licensee
and to
9 any law enforcement officer who
signed the certification form. The pres-
10 ence of the certifying officer or officers
shall not be required, unless
11 requested by the licensee at the time of
making the request for the hear-
12 ing. The examination of a law enforcement
officer shall be restricted to
13 the factual circumstances relied upon in
the officer's certification.
14 (h) (1) If
the officer certifies that the person refused the test, the
15 scope of the hearing shall be limited to
whether:
16 (A) A law
enforcement officer had reasonable grounds to believe the
17 person was operating or attempting to
operate a vehicle while under the
18 influence of alcohol or drugs, or both, or
had been driving a commercial
19 motor vehicle, as defined in K.S.A.
8-2,128, and amendments thereto,
20 while having alcohol or other drugs in such
person's system;
21 (B) the person
was in custody or arrested for an alcohol or drug re-
22 lated offense or was involved in a vehicle
accident or collision resulting
23 in property damage, personal injury or
death;
24 (C) a law
enforcement officer had presented the person with the oral
25 and written notice required by K.S.A.
8-1001, and amendments thereto;
26 and
27 (D) the person
refused to submit to and complete a test as requested
28 by a law enforcement officer.
29 (2) If the
officer certifies that the person failed a breath test, the
30 scope of the hearing shall be limited to
whether:
31 (A) A law
enforcement officer had reasonable grounds to believe the
32 person was operating a vehicle while under
the influence of alcohol or
33 drugs, or both, or had been driving a
commercial motor vehicle, as de-
34 fined in K.S.A. 8-2,128, and amendments
thereto, while having alcohol
35 or other drugs in such person's system;
36 (B) the person
was in custody or arrested for an alcohol or drug re-
37 lated offense or was involved in a vehicle
accident or collision resulting
38 in property damage, personal injury or
death;
39 (C) a law
enforcement officer had presented the person with the oral
40 and written notice required by K.S.A.
8-1001, and amendments thereto;
41 (D) the testing
equipment used was certified by the Kansas depart-
42 ment of health and environment;
43 (E) the person
who operated the testing equipment was certified by
20
1 the Kansas department of health and
environment;
2 (F) the
testing procedures used substantially complied with the pro-
3 cedures set out by the Kansas
department of health and environment;
4 (G) the
test result determined that the person had an alcohol con-
5 centration of .08 or greater in such
person's breath; and
6 (H) the
person was operating or attempting to operate a vehicle.
7 (3) If the
officer certifies that the person failed a blood test, the
scope
8 of the hearing shall be limited to
whether:
9 (A) A law
enforcement officer had reasonable grounds to believe the
10 person was operating a vehicle while under
the influence of alcohol or
11 drugs, or both, or had been driving a
commercial motor vehicle, as de-
12 fined in K.S.A. 8-2,128, and amendments
thereto, while having alcohol
13 or other drugs in such person's system;
14 (B) the person
was in custody or arrested for an alcohol or drug re-
15 lated offense or was involved in a vehicle
accident or collision resulting
16 in property damage, personal injury or
death;
17 (C) a law
enforcement officer had presented the person with the oral
18 and written notice required by K.S.A.
8-1001, and amendments thereto;
19 (D) the testing
equipment used was reliable;
20 (E) the person
who operated the testing equipment was qualified;
21 (F) the testing
procedures used were reliable;
22 (G) the test
result determined that the person had an alcohol con-
23 centration of .08 or greater in such
person's blood; and
24 (H) the person
was operating or attempting to operate a vehicle.
25 (i) At a hearing
pursuant to this section, or upon court review of an
26 order entered at such a hearing, an
affidavit of the custodian of records
27 at the Kansas department of health and
environment stating that the
28 breath testing device was certified and the
operator of such device was
29 certified on the date of the test shall be
admissible into evidence in the
30 same manner and with the same force and
effect as if the certifying officer
31 or employee of the Kansas department of
health and environment had
32 testified in person. A certified operator
of a breath testing device shall be
33 competent to testify regarding the proper
procedures to be used in con-
34 ducting the test.
35 (j) At a hearing
pursuant to this section, or upon court review of an
36 order entered at such hearing, in which the
report of blood test results
37 have been prepared by the Kansas bureau of
investigation or other fo-
38 rensic laboratory of a state or local law
enforcement agency are to be
39 introduced as evidence, the report, or a
copy of the report, of the findings
40 of the forensic examiner shall be
admissible into evidence in the same
41 manner and with the same force and effect
as if the forensic examiner
42 who performed such examination, analysis,
comparison or identification
43 and prepared the report thereon had
testified in person.
21
1 (k) At the
hearing, the licensee has the burden of proof by a prepon-
2 derance of the evidence to show that
the facts set out in the officer's
3 certification are false or
insufficient and that the order suspending or
4 suspending and restricting the
licensee's driving privileges should be
5 dismissed.
6
(l) Evidence at the hearing shall be limited to the
following:
7 (1) The
documents set out in paragraph (e) of this section;
8 (2) the
testimony of the licensee;
9 (3) the
testimony of any certifying officer;
10 (4) any
affidavits submitted from other witnesses;
11 (5) any documents
submitted by the licensee to show the existence
12 of a medical condition, as described in
K.S.A. 8-1001, and amendments
13 thereto; and
14 (6) any video or
audio tape record of the events upon which the ad-
15 ministrative action is based.
16 (m) After the
hearing, the representative of the director shall enter
17 an order affirming the order of suspension
or suspension and restriction
18 of driving privileges or for good cause
appearing therefor, dismiss the
19 administrative action. If the
representative of the director enters an order
20 affirming the order of suspension or
suspension and restriction of driving
21 privileges, the suspension or suspension
and restriction shall begin on the
22 30th day after the effective date of the
order of suspension or suspension
23 and restriction. If the person whose
privileges are suspended is a non-
24 resident licensee, the license of the
person shall be forwarded to the
25 appropriate licensing authority in the
person's state of residence if the
26 result at the hearing is adverse to such
person or if no timely request for
27 a hearing is received.
28 (n) The
representative of the director may issue an order at the close
29 of the hearing or may take the matter under
advisement and issue a
30 hearing order at a later date. If the order
is made at the close of the
31 hearing, the licensee or the licensee's
attorney shall be served with a copy
32 of the order by the representative of the
director. If the matter is taken
33 under advisement or if the hearing was by
telephone or video conference
34 call, the licensee and any attorney who
appeared at the administrative
35 hearing upon behalf of the licensee each
shall be served with a copy of
36 the hearing order by mail. Any law
enforcement officer who appeared at
37 the hearing also may be mailed a copy of
the hearing order. The effective
38 date of the hearing order shall be the date
upon which the hearing order
39 is served, whether served in person or by
mail.
40 (o) The licensee
may file a petition for review of the hearing order
41 pursuant to K.S.A. 8-259, and amendments
thereto. Upon filing a petition
42 for review, the licensee shall serve the
secretary of revenue with a copy
43 of the petition and summons. Upon receipt
of a copy of the petition for
22
1 review by the secretary, the
temporary license issued pursuant to para-
2 graph (b) of this section shall be
extended until the decision on the pe-
3 tition for review is final.
4 (p) Such
review shall be in accordance with this section and the act
5 for judicial review and civil
enforcement of agency actions. To the extent
6 that this section and any other
provision of law conflicts, this section shall
7 prevail. The petition for review
shall be filed within 10 days after the
8 effective date of the order. Venue of
the action for review is the county
9 where the person was arrested or the
accident occurred, or, if the hearing
10 was not conducted by telephone conference
call, the county where the
11 administrative proceeding was held. The
action for review shall be by trial
12 de novo to the court.
[and the evidentiary restrictions of section 5(k)
13 shall not apply to the trial de
novo.] The court shall take testimony,
14 examine the facts of the case and determine
whether the petitioner is
15 entitled to driving privileges or whether
the petitioner's driving privileges
16 are subject to suspension or suspension and
restriction under the provi-
17 sions of this act. If the court finds that
the grounds for action by the
18 agency have been met, the court shall
affirm the agency action.
19 (q) Upon review,
the licensee shall have the burden to show that the
20 decision of the agency should be set aside.
To be raised upon review, an
21 issue shall have been raised at the
administrative hearing and also shall
22 be set out in the petition for review. The
court is not limited to any
23 evidentiary record created during the
administrative hearing and may
24 accept additional evidence on the issues
preserved for review. Except as
25 otherwise provided in this section, the
court shall not rely upon evidence
26 contained in the record of the
administrative proceeding below, absent
27 compliance upon review with the rules of
evidence in a civil proceeding.
28
(r) Notwithstanding the requirement to issue a temporary
license in
29 K.S.A. 8-1002, and amendments thereto, and
the requirements to extend
30 the temporary license in this section, any
such temporary driving privi-
31 leges are subject to restriction,
suspension, revocation or cancellation as
32 provided in K.S.A. 8-1014, and amendments
thereto, or for other cause.
33 (s) Upon motion
by a party, or on the court's own motion, the court
34 may enter an order restricting the driving
privileges allowed by the tem-
35 porary license provided for in K.S.A.
8-1002, and amendments thereto,
36 and in this section. The temporary license
also shall be subject to restric-
37 tion, suspension, revocation or
cancellation, as set out in K.S.A. 8-1014,
38 and amendments thereto, or for other
cause.
39 (t) The facts
found by the hearing officer or by the district court upon
40 a petition for review shall be independent
of the determination of the
41 same or similar facts in the adjudication
of any criminal charges arising
42 out of the same occurrence. The disposition
of those criminal charges
43 shall not affect the suspension or
suspension and restriction to be imposed
23
1 under this section.
2 (u) All
notices affirming or canceling a suspension under this section,
3 all notices of a hearing held under
this section and all issuances of tem-
4 porary driving privileges pursuant to
this section shall be sent by first-
5 class mail and a United States post
office certificate of mailing shall be
6 obtained therefor. All notices so
mailed shall be deemed received three
7 days after mailing.
8 (v) The
provisions of K.S.A. 60-206, and amendments thereto, re-
9 garding the computation of time shall
not be applicable in determining
10 the time for requesting an administrative
hearing as set out in subsection
11 (a) but shall apply to the time for filing
a petition for review pursuant to
12 subsection (o) and K.S.A. 8-259, and
amendments thereto. ``Calendar
13 day'' shall mean that every day shall be
included in computations of time
14 whether a week day, Saturday, Sunday or
holiday.
15 Sec. 6.
[11.] K.S.A. 1999 Supp.
[8-1324 and 8-1332 and K.S.A.
16 1999 Supp. 8-235d, 8-237,
8-240,] 8-241, 8-1002, 8-1014 and 8-1567a
17 are hereby repealed.
18 Sec. 7.
[12.] This act shall take effect and be in force
from and after
19 its publication in the statute book.