CHAPTER 169 SENATE BILL No. 363 (Amends Chapter 125) An  Act concerning driving under the influence of alcohol or drugs; relating to required
notices; amending K.S.A. 1998 Supp. 8-1001 and 8-1567a, as amended by section 19 of
1999 Senate Bill No. 51 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:

      Section  1. K.S.A. 1998 Supp. 8-1001 is hereby amended to read as
follows: 8-1001. (a) Any person who operates or attempts to operate a
vehicle within this state is deemed to have given consent, subject to the
provisions of this act, to submit to one or more tests of the person's blood,
breath, urine or other bodily substance to determine the presence of
alcohol or drugs. The testing deemed consented to herein shall include
all quantitative and qualitative tests for alcohol and drugs. A person who
is dead or unconscious shall be deemed not to have withdrawn the per-
son's consent to such test or tests, which shall be administered in the
manner provided by this section.

      (b) A law enforcement officer shall request a person to submit to a
test or tests deemed consented to under subsection (a) if the officer has
reasonable grounds to believe the person was operating or attempting to
operate a vehicle while under the influence of alcohol or drugs, or both,
or to believe that the person was driving a commercial motor vehicle, as
defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol
or other drugs in such person's system; and one of the following condi-
tions exists: (1) The person has been arrested or otherwise taken into
custody for any offense involving operation or attempted operation of a
vehicle while under the influence of alcohol or drugs, or both, or involving
driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and
amendments thereto, while having alcohol or other drugs in such person's
system, in violation of a state statute or a city ordinance; or (2) the person
has been involved in a vehicle accident or collision resulting in property
damage, personal injury or death. The law enforcement officer directing
administration of the test or tests may act on personal knowledge or on
the basis of the collective information available to law enforcement offi-
cers involved in the accident investigation or arrest.

      (c) If a law enforcement officer requests a person to submit to a test
of blood under this section, the withdrawal of blood at the direction of
the officer may be performed only by: (1) A person licensed to practice
medicine and surgery or a person acting under the supervision of any
such licensed person; (2) a registered nurse or a licensed practical nurse;
or (3) any qualified medical technician, including, but not limited to, an
emergency medical technician-intermediate or mobile intensive care
technician, as those terms are defined in K.S.A. 65-6112, and amend-
ments thereto, or a phlebotomist. When presented with a written state-
ment by a law enforcement officer directing blood to be withdrawn from
a person who has tentatively agreed to allow the withdrawal of blood
under this section, the person authorized herein to withdraw blood and
the medical care facility where blood is withdrawn may rely on such a
statement as evidence that the person has consented to the medical pro-
cedure used and shall not require the person to sign any additional con-
sent or waiver form. In such a case, the person authorized to withdraw
blood and the medical care facility shall not be liable in any action alleging
lack of consent or lack of informed consent. No person authorized by this
subsection to withdraw blood, nor any person assisting in the performance
of a blood test nor any medical care facility where blood is withdrawn or
tested that has been directed by any law enforcement officer to withdraw
or test blood, shall be liable in any civil or criminal action when the act
is performed in a reasonable manner according to generally accepted
medical practices in the community where performed.

      (d) If there are reasonable grounds to believe that there is impair-
ment by a drug which is not subject to detection by the blood or breath
test used, a urine test may be required. If a law enforcement officer
requests a person to submit to a test of urine under this section, the
collection of the urine sample shall be supervised by persons of the same
sex as the person being tested and shall be conducted out of the view of
any person other than the persons supervising the collection of the sample
and the person being tested, unless the right to privacy is waived by the
person being tested. The results of qualitative testing for drug presence
shall be admissible in evidence and questions of accuracy or reliability
shall go to the weight rather than the admissibility of the evidence.

      (e) No law enforcement officer who is acting in accordance with this
section shall be liable in any civil or criminal proceeding involving the
action.

      (f)  (1) Before a test or tests are administered under this section, the
person shall be given oral and written notice that: (A) Kansas law requires
the person to submit to and complete one or more tests of breath, blood
or urine to determine if the person is under the influence of alcohol or
drugs, or both; (B) the opportunity to consent to or refuse a test is not a
constitutional right; (C) there is no constitutional right to consult with an
attorney regarding whether to submit to testing; (D) if the person refuses
to submit to and complete any test of breath, blood or urine hereafter
requested by a law enforcement officer, the person's driving privileges
will be suspended for at least one year; (E) if the person submits to and
completes the test or tests and the test results show an alcohol concen-
tration of .08 or greater, the person's driving privileges will be suspended
for at least 30 days; (F) if the person refuses a test or the test results show
an alcohol concentration of .08 or greater and if, within the past five years,
the person has been convicted or granted diversion on a charge of driving
under the influence of alcohol or drugs, or both, or a related offense or
has refused or failed a test, the person's driving privileges will be sus-
pended for at least one year; (G) if the person is less than 21 years of age
at the time of the test request and submits to and completes the tests and
the test results show an alcohol concentration of .08 or greater, the per-
son's driving privileges will be suspended up to one year; (H) refusal to
submit to testing may be used against the person at any trial on a charge
arising out of the operation or attempted operation of a vehicle while
under the influence of alcohol or drugs, or both; (H) (I) the results of the
testing may be used against the person at any trial on a charge arising out
of the operation or attempted operation of a vehicle while under the
influence of alcohol or drugs, or both; and (I) (J) after the completion of
the testing, the person has the right to consult with an attorney and may
secure additional testing, which, if desired, should be done as soon as
possible and is customarily available from medical care facilities and phy-
sicians. If a law enforcement officer has reasonable grounds to believe
that the person has been driving a commercial motor vehicle, as defined
in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other
drugs in such person's system, the person must also be provided the oral
and written notice pursuant to K.S.A. 8-2,145 and amendments thereto.
Any failure to give the notices required by K.S.A. 8-2,145 and amend-
ments thereto shall not invalidate any action taken as a result of the
requirements of this section. After giving the foregoing information, a law
enforcement officer shall request the person to submit to testing. The
selection of the test or tests shall be made by the officer. If the person
refuses to submit to and complete a test as requested pursuant to this
section, additional testing shall not be given unless the certifying officer
has probable cause to believe that the person, while under the influence
of alcohol or drugs, or both, has operated a vehicle in such a manner as
to have caused the death of or serious injury to another person. As used
in this section, the officer shall have probable cause to believe that the
person operated a vehicle while under the influence of alcohol or drugs,
or both, if the vehicle was operated by such person in such a manner as
to have caused the death of or serious injury to another person. In such
event, such test or tests may be made pursuant to a search warrant issued
under the authority of K.S.A. 22-2502, and amendments thereto, or with-
out a search warrant under the authority of K.S.A. 22-2501, and amend-
ments thereto. If the test results show a blood or breath alcohol concen-
tration of .08 or greater, the person's driving privileges shall be subject
to suspension, or suspension and restriction, as provided in K.S.A. 8-1002
and 8-1014, and amendments thereto. The person's refusal shall be ad-
missible in evidence against the person at any trial on a charge arising out
of the alleged operation or attempted operation of a vehicle while under
the influence of alcohol or drugs, or both. If a law enforcement officer
had reasonable grounds to believe the person had been driving a com-
mercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments
thereto, and the test results show a blood or breath alcohol concentration
of .04 or greater, the person shall be disqualified from driving a com-
mercial motor vehicle, pursuant to K.S.A. 8-2,142, and amendments
thereto. If a law enforcement officer had reasonable grounds to believe
the person had been driving a commercial motor vehicle, as defined in
K.S.A. 8-2,128, and amendments thereto, and the test results show a
blood or breath alcohol concentration of .08 or greater, or the person
refuses a test, the person's driving privileges shall be subject to suspen-
sion, or suspension and restriction, pursuant to this section, in addition
to being disqualified from driving a commercial motor vehicle pursuant
to K.S.A. 8-2,142, and amendments thereto.

      (2) Failure of a person to provide an adequate breath sample or sam-
ples as directed shall constitute a refusal unless the person shows that the
failure was due to physical inability caused by a medical condition unre-
lated to any ingested alcohol or drugs.

      (3) It shall not be a defense that the person did not understand the
written or oral notice required by this section.

      (4) No test shall be suppressed because of technical irregularities in
the consent or notice pursuant to K.S.A. 8-2,145, and amendments
thereto.

      (g) Nothing in this section shall be construed to limit the admissibility
at any trial of alcohol or drug concentration testing results obtained pur-
suant to a search warrant.

      (h) Upon the request of any person submitting to testing under this
section, a report of the results of the testing shall be made available to
such person.

      (i) This act is remedial law and shall be liberally construed to promote
public health, safety and welfare.

      Sec.  2. K.S.A. 1998 Supp. 8-1567a, as amended by section 19 of 1999
Senate Bill No. 51, is hereby amended to read as follows: 8-1567a. (a) It
shall be unlawful for any person less than 21 years of age to operate or
attempt to operate a vehicle in this state with a breath or blood alcohol
content of .02 or greater.

      (b) Whenever a law enforcement officer determines that a breath or
blood alcohol test is to be required of a person less than 21 years of age
pursuant to K.S.A. 8-1001 or K.S.A. 8-2,142 and amendments thereto, in
addition to any other notices required by law, the law enforcement officer
shall provide written and oral notice that: (1) It is unlawful for any person
less than 21 years of age to operate or attempt to operate a vehicle in this
state with a breath or blood alcohol content of .02 or greater; and (2) if
the person is less than 21 years of age at the time of the test request and
submits to and completes the test or tests and the test results show an
alcohol concentration of .02 or greater, the person's driving privileges will
be suspended for at least 30 days upon the first occurrence and for at
least 90 days upon a second or subsequent occurrence one year.

      (c) Any suspension and restriction of driving privileges pursuant to
this section shall be in addition to any disqualification from driving a
commercial motor vehicle pursuant to K.S.A. 8-2,142 and amendments
thereto.

      (d) Whenever a breath or blood alcohol test is requested pursuant to
K.S.A. 8-1001 and amendments thereto, from a person less than 21 years
of age, and results in a test result of .02 or greater, but less than .08, a
law enforcement officer's certification under this section shall be pre-
pared. The certification required by this section shall be signed by one
or more officers to certify that:

      (1)  (A) There existed reasonable grounds to believe the person was
operating a vehicle while under the influence of alcohol or drugs, or both,
or to believe that the person had been driving a commercial motor ve-
hicle, as defined in K.S.A. 8-2,128 and amendments thereto, while having
alcohol or other drugs in such person's system; (B) the person had been
placed under arrest, was in custody or had been involved in a vehicle
accident or collision; (C) a law enforcement officer had presented the
person with the oral and written notice required by K.S.A. 8-1001 and
amendments thereto, and the oral and written notice required by this
section; (D) that the person was less than 21 years of age at the time of
the test request; and (E) the result of the test showed that the person
had an alcohol concentration of .02 or greater in such person's blood or
breath.

      (2) With regard to a breath test, in addition to those matters required
to be certified under subsection (d)(1), that: (A) The testing equipment
used was certified by the Kansas department of health and environment;
(B) the testing procedures used were in accordance with the require-
ments set out by the Kansas department of health and environment; and
(C) the person who operated the testing equipment was certified by the
Kansas department of health and environment to operate such equip-
ment.

      (e) If a hearing is requested as a result of a law enforcement officer's
certification under this section, the scope of the hearing shall be limited
to whether: (1) A law enforcement officer had reasonable grounds to
believe the person was operating a vehicle while under the influence of
alcohol or drugs, or both, or to believe that the person had been driving
a commercial motor vehicle, as defined in K.S.A. 8-2,128 and amend-
ments thereto, while having alcohol or other drugs in such person's sys-
tem; (2) the person was in custody or arrested for an alcohol or drug
related offense or was involved in a motor vehicle accident or collision
resulting in property damage, personal injury or death; (3) a law enforce-
ment officer had presented the person with the oral and written notice
required by K.S.A. 8-1001 and amendments thereto, and the oral and
written notice required by this section; (4) the testing equipment used
was reliable; (5) the person who operated the testing equipment was
qualified; (6) the testing procedures used were reliable; (7) the test result
determined that the person had an alcohol concentration of .02 or greater
in such person's blood or breath; (8) the person was operating a vehicle;
and (9) the person was less than 21 years of age at the time a test was
requested.

      (f) If a person less than 21 years of age submits to a breath or blood
alcohol test requested pursuant to K.S.A. 8-1001 or K.S.A. 8-2,142 and
amendments thereto, and produces a test result of .02 or greater, but less
than .08, the person's driving privileges shall be suspended for one year.

      (g) Except where there is a conflict between this section and K.S.A.
8-1001 and 8-1002 and amendments thereto, the provisions of K.S.A. 8-
1001 and 8-1002 and amendments thereto, shall be applicable to pro-
ceedings under this section.

      (h) Any determination under this section that a person less than 21
years of age had a test result of .02 or greater, but less than .08, and any
resulting administrative action upon the person's driving privileges, upon
the first occurrence of such test result and administrative action, shall not
be considered by any insurance company in determining the rate charged
for any automobile liability insurance policy or whether to cancel any such
policy under the provisions of subsection (4)(a) of K.S.A. 40-277 and
amendments thereto.

      Sec.  3. K.S.A. 1998 Supp. 8-1001 and 8-1567a, as amended by sec-
tion 19 of 1999 Senate Bill No. 51 are hereby repealed.

      Sec.  4. This act shall take effect and be in force from and after its
publication in the statute book.

Approved May 13, 1999.
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