An Act concerning crimes, punishment and criminal procedure; amending K.S.A. 21-3412, 21-3721, as amended by section 2 of 1996 Senate Bill No. 339, 21-4502, 22-2805 and 22-2901 and repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 22-2805 is hereby amended to read as follows: 22- 2805. (a) If it appears by affidavit that the testimony of a person is material in any criminal proceeding or in any proceeding under the Kansas juvenile offenders code, K.S.A. 38-1601 et seq. and amendments thereto, and it is shown that it may become impracticable to secure the witness' presence by subpoena, the court or magistrate may require the witness to give bond in an amount fixed by the court or magistrate, or to comply with other conditions to assure the witness' appearance as a witness. If a person fails to comply with the conditions of release, the court or magistrate may, after hearing, commit the witness to the custody of the sheriff or marshal pending final disposition of the proceeding in which the testimony is needed. A material witness shall not be held in custody more than 30 days unless the court or magistrate, after hearing, determines that there is good cause to hold the witness for an additional period of not more than 30 days. No material witness shall be detained because of inability to comply with any condition of release if the testimony of the witness can be secured for use at trial or in any proceeding under the Kansas juvenile offenders code, K.S.A. 38-1601 et seq. and amendments thereto by deposition, and further detention is not necessary to prevent a failure of justice. Release may be delayed for a reasonable time until the depo- sition of the witness can be taken pursuant to K.S.A. 22-3211.

(b) The court or magistrate shall appoint counsel to represent a wit- ness committed to custody pursuant to this section when the court or magistrate determines that the witness is financially unable to employ counsel, based on the same standards as used to determine if a defendant is able to employ counsel. Such appointment shall be from the panel for indigents' defense services or as otherwise prescribed under the appli- cable system for providing legal defense services for indigent persons prescribed by the state board of indigents' defense services for the county or judicial district. In any proceeding under the Kansas juvenile offenders code, K.S.A. 38-1601 et seq. and amendments thereto, such appointment shall be pursuant to K.S.A. 38-1606 and amendments thereto. The witness may obtain necessary investigative, expert and other services in the man- ner provided by K.S.A. 22-4508 and amendments thereto. Payment for the counsel and other services shall be made in the manner provided by K.S.A. 22-4507 and amendments thereto.

Sec. 2. K.S.A. 21-3721, as amended by section 2 of 1996 Senate Bill No. 339, is hereby amended to read as follows: 21-3721. (a) Criminal trespass is:

(1) Entering or remaining upon or in any land, nonnavigable body of water, structure, vehicle, aircraft or watercraft other than railroad prop- erty as defined in section 1 of 1996 Senate Bill No. 339 and amendments thereto by a person who knows such person is not authorized or privileged to do so, and:

(A) Such person enters or remains therein in defiance of an order not to enter or to leave such premises or property personally communi- cated to such person by the owner thereof or other authorized person; or

(B) such premises or property are posted in a manner reasonably likely to come to the attention of intruders, or are locked or fenced or otherwise enclosed, or shut or secured against passage or entry; or

(C) such person enters or remains therein in defiance of a restraining order issued pursuant to K.S.A. 60-1607, 60-3105, 60-3106 or 60-3107 or K.S.A. 38-1542, 38-1543 or 38-1563, and amendments thereto, and the restraining order has been personally served upon the person so re- strained; or

(2) entering or remaining upon or in any public or private land or structure in a manner that interferes with access to or from any health care facility by a person who knows such person is not authorized or privileged to do so and such person enters or remains thereon or therein in defiance of an order not to enter or to leave such land or structure personally communicated to such person by the owner of the health care facility or other authorized person.

(b) As used in this section:

(1) ``Health care facility'' means any licensed medical care facility, certificated health maintenance organization, licensed mental health cen- ter, or mental health clinic, licensed psychiatric hospital or other facility or office where services of a health care provider are provided directly to patients.

(2) ``Health care provider'' means any person: (A) Licensed to prac- tice a branch of the healing arts; (B) licensed to practice psychology; (C) licensed to practice professional or practical nursing; (D) licensed to prac- tice dentistry; (E) licensed to practice optometry; (F) licensed to practice pharmacy; (G) registered to practice podiatry; (H) licensed as a social worker; or (I) registered to practice physical therapy.

(c) (1) Criminal trespass is a class B nonperson misdemeanor.

(2) Upon a conviction of a violation of subsection (a)(1)(C), a person shall be sentenced to not less than 48 consecutive hours of imprisonment which must be served either before or as a condition of any grant of probation or suspension, reduction of sentence or parole.

Sec. 3. K.S.A. 22-2901 is hereby amended to read as follows: 22- 2901. (1) Except as provided in subsection (7), when an arrest is made in the county where the crime charged is alleged to have been committed, the person arrested shall be taken without unnecessary delay before a magistrate of the court from which the warrant was issued. If the arrest has been made on probable cause, without a warrant, he shall be taken without unnecessary delay before the nearest available magistrate and a complaint shall be filed forthwith.

(2) Except as provided in subsection (7), when an arrest is made in a county other than where the crime charged is alleged to have been com- mitted, the person arrested may be taken directly to the county wherein the crime is alleged to have been committed without unnecessary delay or at the request of the defendant he shall be taken without unnecessary delay before the nearest available magistrate. Such magistrate shall as- certain the nature of the crime charged in the warrant and the amount of the bond, if any, endorsed on the warrant. If no warrant for the arrest of the person is before the magistrate he shall make use of telephonic, telegraphic or radio communication to ascertain the nature of the charge and the substance of any warrant that has been issued. If no warrant has been issued, a complaint shall be filed and a warrant issued in the county where the crime is alleged to have been committed, and the nature of the charge, the substance of the warrant, and the amount of the bond shall be communicated to the magistrate before whom the defendant is in custody. Upon receipt of such information, the magistrate shall proceed as hereinafter provided.

(3) The magistrate shall fix the terms and conditions of the appear- ance bond upon which the defendant may be released. If the first ap- pearance is before a magistrate in a county other than where the crime is alleged to have been committed, the magistrate may release the defen- dant on an appearance bond in an amount not less than that endorsed on the warrant. The defendant shall be required to appear before the mag- istrate who issued the warrant or a magistrate of a court having jurisdic- tion on a day certain, not more than 10 days thereafter.

(4) If the defendant is released on an appearance bond to appear before the magistrate in another county, the magistrate who accepts the appearance bond shall forthwith transmit such appearance bond and all other papers relating to the case to the magistrate before whom the de- fendant is to appear.

(5) If the person arrested cannot provide an appearance bond, or if the crime is not bailable, the magistrate shall commit him to jail pending further proceedings or shall order him delivered to a law enforcement officer of the county where the crime is alleged to have been committed.

(6) The provisions of this section shall not apply to a person who is arrested on a bench warrant. Such persons shall without unnecessary delay be taken before the magistrate who issued the bench warrant.

(7) If a person is arrested on a warrant or arrested on probable cause without a warrant, pursuant to a violation of subsection (a)(1)(C) of K.S.A. 21-3721, and amendments thereto, such person shall not be allowed to post bond pending such person's first appearance in court provided that a first appearance occurs within 48 hours after arrest. The magistrate may fix as a condition of release on the appearance bond that such person report to a court services officer. Nothing in this section shall be construed to be an unnecessary delay as such term is used in this section.

Sec. 4. K.S.A. 21-3412 is hereby amended to read as follows: 21- 3412. (a) Battery is:

(a) (1) Intentionally or recklessly causing bodily harm to another per- son; or

(b) (2) intentionally causing physical contact with another person when done in a rude, insulting or angry manner.

Battery is a class B person misdemeanor.

(b) Except as provided in subsection (c), battery is a class B person misdemeanor.

(c) (1) Upon a first conviction of a violation of this section under circumstances which constitute a domestic battery, a person shall be guilty of a class B person misdemeanor and sentenced to not less than 48 con- secutive hours nor more than six months' imprisonment and fined not less than $200, nor more than $500 or in the court's discretion the court may enter an order which requires the person enroll in and successfully com- plete a domestic violence prevention program.

(2) If, within five years immediately preceding commission of the crime, a person is convicted of a violation of this section a second time under circumstances which constitute a domestic battery, having at least one time before within such period been convicted for such crime or a violation of a comparable crime under the laws of any municipality, state, federal government or foreign government, such person shall be guilty of a class A person misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $500 nor more than $1,000. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and com- plete a treatment program for domestic violence prevention.

(3) If, within five years immediately preceding commission of the crime, a person is convicted of a violation of this crime a third or subse- quent time under circumstances which constitute a domestic battery, such person shall be guilty of a person felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The court may also require as a condition of parole that such person enter into and complete a treatment program for domestic violence. The 90 days' im- prisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' impris- onment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.

(4) As used in this section: (A) Domestic battery means a battery against a family or household member by a family or household member; and

(B) family or household member means persons 18 years of age or older who are spouses, former spouses, parents or stepparents and chil- dren or stepchildren, and persons who are presently residing together or who have resided together in the past, and persons who have a child in common regardless of whether they have been married or who have lived together at any time. Family or household member also includes a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived to- gether at any time.

Sec. 5. K.S.A. 21-4502 is hereby amended to read as follows: 21- 4502. (1) For the purpose of sentencing, the following classes of misde- meanors and the punishment and the terms of confinement authorized for each class are established:

(a) Class A, the sentence for which shall be a definite term of con- finement in the county jail which shall be fixed by the court and shall not exceed one year;.

(b) Class B, the sentence for which shall be a definite term of con- finement in the county jail which shall be fixed by the court and shall not exceed six months;.

(c) Class C, the sentence for which shall be a definite term of con- finement in the county jail which shall be fixed by the court and shall not exceed one month;.

(d) Unclassified misdemeanors, which shall include all crimes de- clared to be misdemeanors without specification as to class, the sentence for which shall be in accordance with the sentence specified in the statute that defines the crime; if no penalty is provided in such law, the sentence shall be the same penalty as provided herein for a class C misdemeanor.

(2) Upon conviction of a misdemeanor, a person may be punished by a fine, as provided in K.S.A. 21-4503 and amendments thereto, instead of or in addition to confinement, as provided in this section.

(3) In addition to or in lieu of any other sentence authorized by law, whenever there is evidence that the act constituting the misdemeanor was substantially related to the possession, use or ingestion of cereal malt beverage or alcoholic liquor by such person, the court may order such person to attend and satisfactorily complete an alcohol or drug education or training program certified by the administrative judge of the judicial district or licensed by the secretary of social and rehabilitation services.

(4) Except as provided in subsection (5), in addition to or in lieu of any other sentence authorized by law, whenever a person is convicted of having committed, while under 21 years of age, a misdemeanor under the uniform controlled substances act (K.S.A. 65-4101 et seq. and amend- ments thereto) or, K.S.A. 41-719, 41-727, 41-804, 41-2719, 41-2720, 65- 4152, 65-4153, 65-4154 or 65-4155 or K.S.A. 1995 Supp. 8-1599, and amendments thereto, the court shall order such person to submit to and complete an alcohol and drug evaluation by a community-based alcohol and drug safety action program certified pursuant to K.S.A. 8-1008 and amendments thereto and to pay a fee not to exceed the fee established by that statute for such evaluation. If the court finds that the person is indigent, the fee may be waived.

(5) If the person is 18 or more years of age but less than 21 years of age and is convicted of a violation of K.S.A. 41-727, and amendments thereto, involving cereal malt beverage, the provisions of subsection (4) are permissive and not mandatory.

Sec. 6. K.S.A. 21-3412, 21-3721, as amended by section 2 of 1996 Senate Bill No. 339, 21-4502, 22-2805 and 22-2901 are hereby repealed.

Sec. 7. This act shall take effect and be in force from and after its publication in the statute book.

Approved May 11, 1996.