CHAPTER 200
SENATE BILL No. 67
(Amends Chapters 5 and 112)
An Act concerning motor vehicles; relating to driving under the
influence of alcohol or
drugs, penalties; powers and duties of the division of vehicles;
operation of vehicles;
suspension or restriction of drivers' licenses; certain fees and
fines; amending K.S.A. 8-
2,145 and 41-727 and K.S.A. 2000 Supp. 8-241, as amended by section
31 of 2001 Senate
Bill No. 15, 8-255, as amended by section 32 of 2001 Senate Bill
No. 15, 8-262, as
amended by section 4 of 2001 Senate Bill No. 56, 8-1001, 8-1002,
8-1008, as amended
by section 35 of 2001 Senate Bill No. 15, 8-1014, 8-1015, 8-1016,
8-1567, 8-1567a, 21-
4711, 22-3717, 65-1,107 and 74-7336 and repealing the existing
sections; also repealing
K.S.A. 2000 Supp. 22-3717b.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) Any licensee
served with an officer's certification
and notice of suspension pursuant to K.S.A. 8-1002, and
amendments
thereto, may request an administrative hearing. Such request may
be
made either by:
(1) Mailing a written request which is
postmarked 10 calendar days
after service of notice, if such notice was given by personal
service;
(2) mailing a written request which is
postmarked 13 calendar days
after service of notice, if such notice was given by mail;
(3) transmitting a written request by
electronic facsimile which is re-
ceived by the division within 10 calendar days after service of
notice, if
such notice was given by personal service; or
(4) transmitting a written request by
electronic facsimile which is re-
ceived by the division within 13 calendar days after service, if
such notice
was given by mail.
(b) If the licensee makes a timely
request for an administrative hear-
ing, any temporary license issued pursuant to K.S.A. 8-1002, and
amend-
ments thereto, shall remain in effect until the 30th calendar day
after the
effective date of the decision made by the division.
(c) If the licensee fails to make a
timely request for an administrative
hearing, the licensee's driving privileges shall be suspended or
suspended
and then restricted in accordance with the notice of suspension
served
pursuant to K.S.A. 8-1002, and amendments thereto.
(d) Upon receipt of a timely request for
a hearing, the division shall
forthwith set the matter for hearing before a representative of the
director
and provide notice of the extension of temporary driving
privileges. Ex-
cept for a hearing conducted by telephone or video conference call,
the
hearing shall be conducted in the county where the arrest occurred
or a
county adjacent thereto. If the licensee requests, the hearing may
be
conducted by telephone or video conference call.
(e) Except as provided in subsection (f),
prehearing discovery shall
be limited to the following documents, which shall be provided to
the
licensee or the licensee's attorney no later than five calendar
days prior
to the date of hearing:
(1) The officer's certification and
notice of suspension;
(2) in the case of a breath or blood test
failure, copies of documents
indicating the result of any evidentiary breath or blood test
administered
at the request of a law enforcement officer;
(3) in the case of a breath test failure,
a copy of the affidavit showing
certification of the officer and the instrument; and
(4) in the case of a breath test failure,
a copy of the Kansas depart-
ment of health and environment testing protocol checklist.
(f) At or prior to the time the notice of
hearing is sent, the division
shall issue an order allowing the licensee or the licensee's
attorney to
review any video or audio tape record made of the events upon
which
the administrative action is based. Such review shall take place at
a rea-
sonable time designated by the law enforcement agency and shall
be
made at the location where the video or audio tape is kept. The
licensee
may obtain a copy of any such video or audio tape upon request and
upon
payment of a reasonable fee to the law enforcement agency, not to
exceed
$25 per tape.
(g) Witnesses at the hearing shall be
limited to the licensee, to any
law enforcement officer who signed the certification form and to
one
other witness who was present at the time of the issuance of the
certifi-
cation and called by the licensee. The presence of the certifying
officer
or officers shall not be required, unless requested by the licensee
at the
time of making the request for the hearing. The examination of a
law
enforcement officer shall be restricted to the factual
circumstances relied
upon in the officer's certification.
(h) (1) If the officer certifies
that the person refused the test, the
scope of the hearing shall be limited to whether:
(A) A law enforcement officer had
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 had 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;
(B) the person was in custody or arrested
for an alcohol or drug re-
lated offense or was involved in a vehicle accident or collision
resulting
in property damage, personal injury or death;
(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
(D) the person refused to submit to and
complete a test as requested
by a law enforcement officer.
(2) If the officer certifies that the
person failed a breath test, the
scope of the hearing shall be limited to whether:
(A) 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 had been driving a commercial motor vehicle, as
de-
fined in K.S.A. 8-2,128, and amendments thereto, while having
alcohol
or other drugs in such person's system;
(B) the person was in custody or arrested
for an alcohol or drug re-
lated offense or was involved in a vehicle accident or collision
resulting
in property damage, personal injury or death;
(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;
(D) the testing equipment used was
certified by the Kansas depart-
ment of health and environment;
(E) the person who operated the testing
equipment was certified by
the Kansas department of health and environment;
(F) the testing procedures used
substantially complied with the pro-
cedures set out by the Kansas department of health and
environment;
(G) the test result determined that the
person had an alcohol con-
centration of .08 or greater in such person's breath; and
(H) the person was operating or
attempting to operate a vehicle.
(3) If the officer certifies that the
person failed a blood test, the scope
of the hearing shall be limited to whether:
(A) 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 had been driving a commercial motor vehicle, as
de-
fined in K.S.A. 8-2,128, and amendments thereto, while having
alcohol
or other drugs in such person's system;
(B) the person was in custody or arrested
for an alcohol or drug re-
lated offense or was involved in a vehicle accident or collision
resulting
in property damage, personal injury or death;
(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;
(D) the testing equipment used was
reliable;
(E) the person who operated the testing
equipment was qualified;
(F) the testing procedures used were
reliable;
(G) the test result determined that the
person had an alcohol con-
centration of .08 or greater in such person's blood; and
(H) the person was operating or
attempting to operate a vehicle.
(i) At a hearing pursuant to this
section, or upon court review of an
order entered at such a hearing, an affidavit of the custodian of
records
at the Kansas department of health and environment stating that
the
breath testing device was certified and the operator of such device
was
certified on the date of the test shall be admissible into evidence
in the
same manner and with the same force and effect as if the certifying
officer
or employee of the Kansas department of health and environment
had
testified in person. A certified operator of a breath testing
device shall be
competent to testify regarding the proper procedures to be used in
con-
ducting the test.
(j) At a hearing pursuant to this
section, or upon court review of an
order entered at such a hearing, in which the report of blood test
results
have been prepared by the Kansas bureau of investigation or other
fo-
rensic laboratory of a state or local law enforcement agency are to
be
introduced as evidence, the report, or a copy of the report, of the
findings
of the forensic examiner shall be admissible into evidence in the
same
manner and with the same force and effect as if the forensic
examiner
who performed such examination, analysis, comparison or
identification
and prepared the report thereon had testified in person.
(k) At the hearing, the licensee has the
burden of proof by a prepon-
derance of the evidence to show that the facts set out in the
officer's
certification are false or insufficient and that the order
suspending or
suspending and restricting the licensee's driving privileges should
be dis-
missed.
(l) Evidence at the hearing shall be
limited to the following:
(1) The documents set out in subsection
(e);
(2) the testimony of the licensee;
(3) the testimony of any certifying
officer;
(4) the testimony of any witness present
at the time of the issuance
of the certification and called by the licensee;
(5) any affidavits submitted from other
witnesses;
(6) any documents submitted by the
licensee to show the existence
of a medical condition, as described in K.S.A. 8-1001, and
amendments
thereto; and
(7) any video or audio tape record of the
events upon which the ad-
ministrative action is based.
(m) After the hearing, the representative
of the director shall enter
an order affirming the order of suspension or suspension and
restriction
of driving privileges or for good cause appearing therefor, dismiss
the
administrative action. If the representative of the director enters
an order
affirming the order of suspension or suspension and restriction of
driving
privileges, the suspension or suspension and restriction shall
begin on the
30th day after the effective date of the order of suspension or
suspension
and restriction. If the person whose privileges are suspended is a
non-
resident licensee, the license of the person shall be forwarded to
the
appropriate licensing authority in the person's state of residence
if the
result at the hearing is adverse to such person or if no timely
request for
a hearing is received.
(n) The representative of the director
may issue an order at the close
of the hearing or may take the matter under advisement and issue
a
hearing order at a later date. If the order is made at the close of
the
hearing, the licensee or the licensee's attorney shall be served
with a copy
of the order by the representative of the director. If the matter
is taken
under advisement or if the hearing was by telephone or video
conference
call, the licensee and any attorney who appeared at the
administrative
hearing upon behalf of the licensee each shall be served with a
copy of
the hearing order by mail. Any law enforcement officer who appeared
at
the hearing also may be mailed a copy of the hearing order. The
effective
date of the hearing order shall be the date upon which the hearing
order
is served, whether served in person or by mail.
(o) The licensee may file a petition for
review of the hearing order
pursuant to K.S.A. 8-259, and amendments thereto. Upon filing a
petition
for review, the licensee shall serve the secretary of revenue with
a copy
of the petition and summons. Upon receipt of a copy of the petition
for
review by the secretary, the temporary license issued pursuant to
subsec-
tion (b) shall be extended until the decision on the petition for
review is
final.
(p) Such review shall be in accordance
with this section and the act
for judicial review and civil enforcement of agency actions. To the
extent
that this section and any other provision of law conflicts, this
section shall
prevail. The petition for review shall be filed within 10 days
after the
effective date of the order. Venue of the action for review is the
county
where the person was arrested or the accident occurred, or, if the
hearing
was not conducted by telephone conference call, the county where
the
administrative proceeding was held. The action for review shall be
by trial
de novo to the court and the evidentiary restrictions of subsection
(l) shall
not apply to the trial de novo. The court shall take testimony,
examine
the facts of the case and determine whether the petitioner is
entitled to
driving privileges or whether the petitioner's driving privileges
are subject
to suspension or suspension and restriction under the provisions of
this
act. If the court finds that the grounds for action by the agency
have been
met, the court shall affirm the agency action.
(q) Upon review, the licensee shall have
the burden to show that the
decision of the agency should be set aside.
(r) Notwithstanding the requirement to
issue a temporary license in
K.S.A. 8-1002, and amendments thereto, and the requirements to
extend
the temporary license in this section, any such temporary driving
privi-
leges are subject to restriction, suspension, revocation or
cancellation as
provided in K.S.A. 8-1014, and amendments thereto, or for other
cause.
(s) Upon motion by a party, or on the
court's own motion, the court
may enter an order restricting the driving privileges allowed by
the tem-
porary license provided for in K.S.A. 8-1002, and amendments
thereto,
and in this section. The temporary license also shall be subject to
restric-
tion, suspension, revocation or cancellation, as set out in K.S.A.
8-1014,
and amendments thereto, or for other cause.
(t) The facts found by the hearing
officer or by the district court upon
a petition for review shall be independent of the determination of
the
same or similar facts in the adjudication of any criminal charges
arising
out of the same occurrence. The disposition of those criminal
charges
shall not affect the suspension or suspension and restriction to be
imposed
under this section.
(u) All notices affirming or canceling a
suspension under this section,
all notices of a hearing held under this section and all issuances
of tem-
porary driving privileges pursuant to this section shall be sent by
first-
class mail and a United States post office certificate of mailing
shall be
obtained therefor. All notices so mailed shall be deemed received
three
days after mailing, except that this provision shall not apply to
any licensee
where such application would result in a manifest injustice.
(v) The provisions of K.S.A. 60-206, and
amendments thereto, re-
garding the computation of time shall not be applicable in
determining
the time for requesting an administrative hearing as set out in
subsection
(a) but shall apply to the time for filing a petition for review
pursuant to
subsection (o) and K.S.A. 8-259, and amendments thereto.
``Calendar
day'' shall mean that every day shall be included in computations
of time
whether a weekday, Saturday, Sunday or holiday.
Sec. 2. K.S.A. 2000 Supp. 8-255 as
amended by section 32 of 2001
Senate Bill No. 15 is hereby amended to read as follows: 8-255. (a)
The
division is authorized to restrict, suspend or revoke a
person's driving
privileges upon a showing by its records or other sufficient
evidence the
person:
(1) Has been convicted with such
frequency of serious offenses
against traffic regulations governing the movement of vehicles as
to in-
dicate a disrespect for traffic laws and a disregard for the safety
of other
persons on the highways;
(2) has been convicted of three or more
moving traffic violations com-
mitted on separate occasions within a 12-month period;
(3) is incompetent to drive a motor
vehicle;
(4) has been convicted of a moving
traffic violation, committed at a
time when the person's driving privileges were restricted,
suspended or
revoked; or
(5) is a member of the armed forces of
the United States stationed
at a military installation located in the state of Kansas, and the
authorities
of the military establishment certify that such person's on-base
driving
privileges have been suspended, by action of the proper military
author-
ities, for violating the rules and regulations of the military
installation
governing the movement of vehicular traffic or for any other reason
re-
lating to the person's inability to exercise ordinary and
reasonable control
in the operation of a motor vehicle.
(b) The division shall suspend a person's
driving privileges when re-
quired by K.S.A. 8-262 or, 8-1014 or
41-727, and amendments thereto,
and K.S.A. 2000 Supp. 21-3765, and amendments thereto, and shall
dis-
qualify a person's privilege to drive commercial motor vehicles
when re-
quired by K.S.A. 8-2,142, and amendments thereto.
(c) When the action by the division
restricting, suspending, revoking
or disqualifying a person's driving privileges is based upon a
report of a
conviction or convictions from a convicting court, the person may
not
request a hearing but, within 30 days after notice of
restriction, suspen-
sion, revocation or disqualification is mailed, may submit a
written request
for administrative review and provide evidence to the division to
show
the person whose driving privileges have been restricted,
suspended, re-
voked or disqualified by the division was not convicted of the
offense
upon which the restriction, suspension, revocation or
disqualification is
based. Within 30 days of its receipt of the request for
administrative
review, the division shall notify the person whether the
restriction, sus-
pension, revocation or disqualification has been affirmed or set
aside. The
request for administrative review shall not stay any action taken
by the
division.
(d) Upon restricting, suspending,
revoking or disqualifying the driv-
ing privileges of any person as authorized by this act, the
division shall
immediately notify the person in writing. Except as provided by
K.S.A.
8-1002 and 8-2,145, and amendments thereto, and subsection (c) of
this
section, if the person makes a written request for hearing within
30 days
after such notice of restriction, suspension or revocation
is mailed, the
division shall afford the person an opportunity for a hearing as
early as
practical not sooner than five days nor more than 30 days after
such
request is mailed. If the division has not revoked or suspended the
per-
son's driving privileges or vehicle registration prior to the
hearing, the
hearing may be held within not to exceed 45 days. Except as
provided by
K.S.A. 8-1002 and 8-2,145, and amendments thereto, the hearing
shall
be held in the person's county of residence or a county adjacent
thereto,
unless the division and the person agree that the hearing may be
held in
some other county. Upon the hearing, the director or the director's
duly
authorized agent may administer oaths and may issue subpoenas for
the
attendance of witnesses and the production of relevant books and
papers
and may require an examination or reexamination of the person.
When
the action proposed or taken by the division is authorized but not
re-
quired, the division, upon the hearing, shall either rescind or
affirm its
order of restriction, suspension or revocation or, good
cause appearing
therefor, extend the restriction or suspension of the
person's driving priv-
ileges, modify the terms of the restriction or suspension or
revoke the
person's driving privileges. When the action proposed or taken by
the
division is required, the division, upon the hearing, shall either
affirm its
order of restriction, suspension, revocation or
disqualification, or, good
cause appearing therefor, dismiss the administrative action. If the
person
fails to request a hearing within the time prescribed or if, after
a hearing,
the order of restriction, suspension, revocation or
disqualification is up-
held, the person shall surrender to the division, upon proper
demand,
any driver's license in the person's possession.
(e) In case of failure on the part of any
person to comply with any
subpoena issued in behalf of the division or the refusal of any
witness to
testify to any matters regarding which the witness may be lawfully
inter-
rogated, the district court of any county, on application of the
division,
may compel obedience by proceedings for contempt, as in the case
of
disobedience of the requirements of a subpoena issued from the
court or
a refusal to testify in the court. Each witness who appears before
the
director or the director's duly authorized agent by order or
subpoena,
other than an officer or employee of the state or of a political
subdivision
of the state, shall receive for the witness' attendance the fees
and mileage
provided for witnesses in civil cases in courts of record, which
shall be
audited and paid upon the presentation of proper vouchers sworn to
by
the witness.
(f) The division, in the interest of
traffic and safety, may establish
driver improvement clinics throughout the state and, upon reviewing
the
driving record of a person whose driving privileges are subject to
suspen-
sion under subsection (a)(2), may permit the person to retain such
per-
son's driving privileges by attending a driver improvement clinic.
A person
who is required to attend a driver improvement clinic shall pay a
fee of
$15. Amounts received under this subsection shall be remitted to
the state
treasurer in accordance with the provisions of K.S.A. 75-4215,
and
amendments thereto. Upon receipt of each such remittance, the
state
treasurer shall deposit the same in the state treasury to the
credit of the
division of vehicles operating fund.
Sec. 3. K.S.A. 2000 Supp. 8-262 as
amended by section 4 of 2001
Senate Bill No. 56 is hereby amended to read as follows: 8-262. (a)
(1)
Any person who drives a motor vehicle on any highway of this state
at a
time when such person's privilege so to do is canceled, suspended
or
revoked or while such person's privilege to obtain a driver's
license is
suspended or revoked pursuant to section 1 of 2001 Senate Bill
No. 56,
and amendments thereto, shall be guilty of a: (A) Class B
nonperson
misdemeanor on the first conviction; and (B) class A nonperson
misde-
meanor on the second conviction or subsequent conviction.
(2) No person shall be convicted under
this section if such person
was entitled at the time of arrest under K.S.A. 8-257, and
amendments
thereto, to the return of such person's driver's license.
(3) Except as otherwise provided by
subsection (a)(4), every person
convicted under this section shall be sentenced to at least five
days' im-
prisonment and fined at least $100 and upon a second or
subsequent
conviction shall not be eligible for parole until completion of
five days'
imprisonment.
(4) If a person: (A) Is convicted of a
violation of this section, com-
mitted while the person's privilege to drive or privilege to obtain
a driver's
license was suspended or revoked for a violation of K.S.A. 8-1567,
and
amendments thereto, or any ordinance of any city or resolution
of any
county or a law of another state, which ordinance or law
prohibits the
acts prohibited by that statute; and (B) is or has been also
convicted of a
violation of K.S.A. 8-1567, and amendments thereto, or of a
municipal
ordinance or law of another state, which ordinance or law prohibits
the
acts prohibited by that statute, committed while the person's
privilege to
drive or privilege to obtain a driver's license was so suspended or
revoked,
the person shall not be eligible for suspension of sentence,
probation or
parole until the person has served at least 90 days' imprisonment,
and
any fine imposed on such person shall be in addition to such a term
of
imprisonment.
(b) The division, upon receiving a record
of the conviction of any
person under this section, or any ordinance of any city or
resolution of
any county or a law of another state which is in substantial
conformity
with this section, upon a charge of driving a vehicle while the
license of
such person is revoked or suspended, shall extend the period of
such
suspension or revocation for an additional period of 90 days.
(c) In addition to extension of
the period of suspension or revocation
under subsection (b), if the conviction is for a violation
committed after
June 30, 1994, and before July 1, 1996, and committed while
the person's
driving privileges are suspended pursuant to K.S.A. 8-1014,
and amend-
ments thereto, the division, upon completion of the
extended period of
suspension, shall restrict the person's driving privileges
for an additional
120 days to driving only a motor vehicle equipped with an
ignition inter-
lock device, as defined by K.S.A. 8-1013, and amendments
thereto, ap-
proved by the division and obtained, installed and
maintained at the per-
son's expense.
(d) For the purposes of
determining whether a conviction is a first,
second or subsequent conviction in sentencing under this section,
``con-
viction'' includes a conviction of a violation of any ordinance of
any city
or resolution of any county or a law of another state which
is in substantial
conformity with this section.
Sec. 4. K.S.A. 2000 Supp. 8-1008 as
amended by section 35 of 2001
Senate Bill No. 15 is hereby amended to read as follows: 8-1008.
(a)
Community-based alcohol and drug safety action programs certified
in
accordance with subsection (b) shall provide:
(1) Presentence alcohol and drug
evaluations of any person who is
convicted of a violation of K.S.A. 8-1567, and amendments thereto,
or
the ordinance of a city in this state which prohibits the acts
prohibited by
that statute;
(2) supervision and monitoring of all
persons who are convicted of a
violation of K.S.A. 8-1567, and amendments thereto, or the
ordinance of
a city in this state which prohibits the acts prohibited by that
statute, and
whose sentences or terms of probation require completion of an
alcohol
and drug safety action program, as provided in this section, or an
alcohol
and drug abuse treatment program, as provided in this section;
(3) alcohol and drug evaluations of
persons whom the prosecutor con-
siders for eligibility or finds eligible to enter a diversion
agreement in lieu
of further criminal proceedings on a complaint alleging a violation
of
K.S.A. 8-1567, and amendments thereto, or the ordinance of a city
in this
state which prohibits the acts prohibited by that statute;
(4) supervision and monitoring of persons
required, under a diversion
agreement in lieu of further criminal proceedings on a complaint
alleging
a violation of K.S.A. 8-1567, and amendments thereto, or the
ordinance
of a city in this state which prohibits the acts prohibited by that
statute,
to complete an alcohol and drug safety action program, as provided
in
this section, or an alcohol and drug abuse treatment program, as
provided
in this section; or
(5) any combination of (1), (2), (3) and
(4).
(b) The presentence alcohol and drug
evaluation shall be conducted
by a community-based alcohol and drug safety action program
certified
in accordance with the provisions of this subsection to provide
evaluation
and supervision services as described in subsections (c) and (d). A
com-
munity-based alcohol and drug safety action program shall be
certified
either by the chief judge of the judicial district to be served by
the pro-
gram or by the secretary of social and rehabilitation services for
judicial
districts in which the chief judge declines to certify a program.
In addition
to any qualifications established by the secretary, the chief judge
may
establish qualifications for the certification of programs, which
qualifi-
cations may include requirements for training, education and
certification
of personnel; supervision and monitoring of clients; fee
reimbursement
procedures; handling of conflicts of interest; delivery of services
to clients
unable to pay; and other matters relating to quality and delivery
of services
by the program. In establishing the qualifications for programs,
the chief
judge or the secretary shall give preference to those programs
which have
had practical experience prior to July 1, 1982, in diagnosis and
referral in
alcohol and drug abuse. Certification of a program by the chief
judge
shall be done with consultation and approval of a majority of the
judges
of the district court of the district and municipal judges of
cities lying in
whole or in part within the district. If within 60 days after the
effective
date of this act the chief judge declines to certify any program
for the
judicial district, the judge shall notify the secretary of social
and rehabil-
itation services, and the secretary of social and rehabilitation
services shall
certify a community-based alcohol and drug safety action program
for
that judicial district. The certification shall be for a four-year
period. Re-
certification of a program or certification of a different program
shall be
by the chief judge, with consultation and approval of a majority of
the
judges of the district court of the district and municipal judges
of cities
lying in whole or in part within the district. If upon expiration
of certifi-
cation of a program there will be no certified program for the
district and
the chief judge declines to recertify or certify any program in the
district,
the judge shall notify the secretary of social and rehabilitation
services, at
least six months prior to the expiration of certification, that the
judge
declines to recertify or certify a program under this subsection.
Upon
receipt of the notice and prior to the expiration of certification,
the sec-
retary shall recertify or certify a community-based alcohol and
drug safety
action program for the judicial district for the next four-year
period. To
be eligible for certification under this subsection, the chief
judge or the
secretary of social and rehabilitation services shall determine
that a com-
munity-based alcohol and drug safety action program meets the
qualifi-
cations established by the judge or secretary and is capable of
providing,
within the judicial district: (1) The evaluations, supervision and
monitor-
ing required under subsection (a); (2) the alcohol and drug
evaluation
report required under subsection (c) or (d); (3) the follow-up
duties spec-
ified under subsection (c) or (d) for persons who prepare the
alcohol and
drug evaluation report; and (4) any other functions and duties
specified
by law. Community-based alcohol and drug safety action programs
per-
forming services in any judicial district under this section prior
to the
effective date of this act may continue to perform those services
until a
community-based alcohol and drug safety action program is certified
for
that judicial district.
(c) A presentence alcohol and drug
evaluation shall be conducted on
any person who is convicted of a violation of K.S.A. 8-1567, and
amend-
ments thereto, or the ordinance of a city in this state which
prohibits the
acts prohibited by that statute. The presentence alcohol and drug
evalu-
ation report shall be made available to and shall be considered by
the
court prior to sentencing. The presentence alcohol and drug
evaluation
report shall contain a history of the defendant's prior traffic
record, char-
acteristics and alcohol or drug problems, or both, and a
recommendation
concerning the amenability of the defendant to education and
rehabili-
tation. The presentence alcohol and drug evaluation report shall
include
a recommendation concerning the alcohol and drug driving safety
edu-
cation and treatment for the defendant. The presentence alcohol
and
drug evaluation report shall be prepared by a program which has
dem-
onstrated practical experience in the diagnosis of alcohol and drug
abuse.
The duties of persons who prepare the presentence alcohol and
drug
evaluation report may also include appearing at sentencing and
probation
hearings in accordance with the orders of the court, monitoring
defen-
dants in the treatment programs, notifying the probation department
and
the court of any defendant failing to meet the conditions of
probation or
referrals to treatment, appearing at revocation hearings as may be
re-
quired and providing assistance and data reporting and program
evalua-
tion. The cost of any alcohol and drug education, rehabilitation
and treat-
ment programs for any person shall be paid by such person, and
such
costs shall include, but not be limited to, the assessments
required by
subsection (e). If financial obligations are not met or cannot be
met, the
sentencing court shall be notified for the purpose of collection or
review
and further action on the defendant's sentence.
(d) An alcohol and drug evaluation shall
be conducted on any person
whom the prosecutor considers for eligibility or finds eligible to
enter a
diversion agreement in lieu of further criminal proceedings on a
com-
plaint alleging a violation of K.S.A. 8-1567, and amendments
thereto, or
the ordinance of a city in this state which prohibits the acts
prohibited by
that statute. The alcohol and drug evaluation report shall be made
avail-
able to the prosecuting attorney and shall be considered by the
prose-
cuting attorney. The alcohol and drug evaluation report shall
contain a
history of the person's prior traffic record, characteristics and
alcohol or
drug problems, or both, and a recommendation concerning the
amena-
bility of the person to education and rehabilitation. The alcohol
and drug
evaluation report shall include a recommendation concerning the
alcohol
and drug driving safety education and treatment for the person. The
al-
cohol and drug evaluation report shall be prepared by a program
which
has demonstrated practical experience in the diagnosis of alcohol
and
drug abuse. The duties of persons who prepare the alcohol and
drug
evaluation report may also include monitoring persons in the
treatment
programs, notifying the prosecutor and the court of any person
failing to
meet the conditions of diversion or referrals to treatment, and
providing
assistance and data reporting and program evaluation. The cost of
any
alcohol and drug education, rehabilitation and treatment programs
for
any person shall be paid by such person, and such costs shall
include, but
not be limited to, the assessments required by subsection (e).
(e) In addition to any fines, fees,
penalties or costs levied against a
person who is convicted of a violation of K.S.A. 8-1567, and
amendments
thereto, or the ordinance of a city in this state which prohibits
the acts
prohibited by that statute, or who enters a diversion agreement in
lieu of
further criminal proceedings on a complaint alleging a violation of
that
statute or such an ordinance, $125 $150
shall be assessed against the
person by the sentencing court or under the diversion agreement.
The
$125 $150 assessment may be waived by the
court, in whole or in part,
or, in the case of diversion of criminal proceedings, by the
prosecuting
attorney, if the court or prosecuting attorney finds that the
defendant is
an indigent person. Except as otherwise provided in this
subsection, the
clerk of the court shall deposit all assessments received under
this section
in the alcohol and drug safety action fund of the court, which fund
shall
be subject to the administration of the judge having administrative
au-
thority over that court. If the secretary of social and
rehabilitation services
certifies the community-based alcohol and drug safety action
program for
the judicial district in which the court is located, the clerk of
the court
shall remit, during the four-year period for which the program is
certified,
15% of all assessments received under this section to the secretary
of
social and rehabilitation services. Moneys credited to the alcohol
and drug
safety action fund shall be expended by the court, pursuant to
vouchers
signed by the judge having administrative authority over that
court, only
for costs of the services specified by subsection (a) or otherwise
required
or authorized by law and provided by community-based alcohol and
drug
safety action programs, except that not more than 10% of the
money
credited to the fund may be expended to cover the expenses of the
court
involved in administering the provisions of this section. In the
provision
of these services the court shall contract as may be necessary to
carry out
the provisions of this section. The district or municipal judge
having ad-
ministrative authority over that court shall compile a report and
send such
report to the office of the state judicial administrator on or
before January
20 of each year, beginning January 20, 1991. Such report shall
include,
but not be limited to:
(1) The balance of the alcohol and drug
safety action fund of the court
on December 31 of each year;
(2) the assessments deposited into the
fund during the 12-month pe-
riod ending the preceding December 31; and
(3) the dollar amounts expended from the
fund during the 12-month
period ending the preceding December 31.
The office of the state judicial administrator
shall compile such reports
into a statewide report and submit such statewide report to the
legislature
on or before March 1 of each year.
(f) The secretary of social and
rehabilitation services shall remit all
moneys received by the secretary under this section to the state
treasurer
in accordance with the provisions of K.S.A. 75-4215, and
amendments
thereto. Upon receipt of each such remittance, the state treasurer
shall
deposit the entire amount in the state treasury to the credit of
the cer-
tification of community-based alcohol and drug safety action
programs
fee fund, which is hereby created. All expenditures from such fund
shall
be made in accordance with appropriation acts upon warrants issued
pur-
suant to vouchers approved by the secretary of social and
rehabilitation
services or a person designated by the secretary.
Sec. 5. K.S.A. 2000 Supp. 8-1014 is
hereby amended to read as fol-
lows: 8-1014. (a) Except as provided by subsection (e) and K.S.A.
8-2,142,
and amendments thereto, if a person refuses a test, the division,
pursuant
to K.S.A. 8-1002, and amendments thereto, shall suspend the
person's
driving privileges for one year.:
(1) On the person's first occurrence,
suspend the person's driving
privileges for one year;
(2) on the person's second occurrence,
suspend the person's driving
privileges for two years;
(3) on the person's third occurrence,
suspend the person's driving
privileges for three years;
(4) on the person's fourth occurrence,
suspend the person's driving
privileges for 10 years; and
(5) on the person's fifth or
subsequent occurrence, revoke the person's
driving privileges permanently.
(b) Except as provided by subsections (c)
and (e) and K.S.A. 8-2,142,
and amendments thereto, if a person fails a test or has an alcohol
or drug-
related conviction in this state, the division shall:
(1) On the person's first occurrence,
suspend the person's driving
privileges for 30 days, then restrict the person's driving
privileges as pro-
vided by K.S.A. 8-1015, and amendments thereto, for an additional
330
days; and
(2) on the person's second or a
subsequent, third or fourth occur-
rence, suspend the person's driving privileges for one year and,
com-
mencing July 1, 2001, then at the end of the suspension for an
alcohol-
related conviction, restrict the person's driving privileges for
one year to
driving only a motor vehicle equipped with an ignition interlock
device.;
and
(3) on the person's fifth or
subsequent occurrence, the person's driv-
ing privileges shall be permanently revoked.
(c) Except as provided by subsection (e)
and K.S.A. 8-2,142, and
amendments thereto, if a person who is less than 21 years of age
fails a
test or has an alcohol or drug-related conviction in this state,
the division
shall:
(1) suspend the person's
driving privileges for one year; or
(2) if such person has entered a
diversion agreement under K.S.A.
12-4412 et seq.,
and amendments thereto, or K.S.A. 22-2906 et
seq., and
amendments thereto, suspend the person's driving privileges
for the term
of such diversion agreement.
(d) Whenever the division is notified by
an alcohol and drug safety
action program that a person has failed to complete any alcohol and
drug
safety action education or treatment program ordered by a court for
a
conviction of a violation of K.S.A. 8-1567, and amendments thereto,
the
division shall suspend the person's driving privileges until the
division
receives notice of the person's completion of such program.
(e) Except as provided in K.S.A. 8-2,142,
and amendments thereto,
if a person's driving privileges are subject to suspension pursuant
to this
section for a test refusal, test failure or alcohol or drug-related
conviction
arising from the same arrest, the period of such suspension shall
not
exceed the longest applicable period authorized by subsection (a),
(b) or
(c), and such suspension periods shall not be added together or
otherwise
imposed consecutively. In addition, in determining the period of
such
suspension as authorized by subsection (a), (b) or (c), such person
shall
receive credit for any period of time for which such person's
driving
privileges were suspended while awaiting any hearing or final order
au-
thorized by this act.
If a person's driving privileges are subject
to restriction pursuant to
this section for a test failure or alcohol or drug-related
conviction arising
from the same arrest, the restriction periods shall not be added
together
or otherwise imposed consecutively. In addition, in determining the
pe-
riod of restriction, the person shall receive credit for any period
of sus-
pension imposed for a test refusal arising from the same
arrest.
(f) If the division has taken action
under subsection (a) for a test
refusal or under subsection (b) or (c) for a test failure and such
action is
stayed pursuant to K.S.A. 8-259, and amendments thereto, or if
tempo-
rary driving privileges are issued pursuant to subsection
(k) of K.S.A. 8-
1002 section 1, and amendments thereto, the
stay or temporary driving
privileges shall not prevent the division from taking the action
required
by subsection (b) or (c) for an alcohol or drug-related
conviction.
(g) Upon restricting a person's driving
privileges pursuant to this sec-
tion, the division shall issue without charge a driver's
license which shall
indicate on the face of the license that restrictions have
been imposed on
the person's driving privileges and that a copy of
the order imposing the
restrictions which is required to be carried by the person
for whom the
license was issued at any time the person
is operating a motor vehicle on
the highways of this state.
(h) Any person whose license is
restricted to operating only a motor
vehicle with an ignition interlock device installed may operate
an em-
ployer's vehicle without an ignition interlock device installed
during nor-
mal business activities, provided that the person does not
partly or entirely
own or control the employer's vehicle or business. The
provisions of this
subsection shall be effective on and after July 1, 2001.
Sec. 6. K.S.A. 2000 Supp. 8-1015 is
hereby amended to read as fol-
lows: 8-1015. (a) When subsection (b)(1) of K.S.A. 8-1014, and
amend-
ments thereto, requires or authorizes the division to place
restrictions on
a person's driving privileges, the division shall restrict the
person's driving
privileges to driving only under the circumstances provided by
subsec-
tions (a)(1), (2), (3) and (4) of K.S.A. 8-292 and amendments
thereto.
(b) In lieu of the restrictions set out
in subsection (a), the division,
upon request of the person whose driving privileges are to be
restricted,
may restrict the person's driving privileges to driving only a
motor vehicle
equipped with an ignition interlock device, approved by the
division and
obtained, installed and maintained at the person's expense.
(c) Upon a person's second or
subsequent conviction for an alcohol
related offense, if the person had an alcohol concentration
of .15 or more
in the person's blood or breath, the convicting court shall
restrict the
person's driving privileges to driving only a motor vehicle
equipped with
an ignition interlock device, approved by the division and
obtained, in-
stalled and maintained at the person's expense.
When a person has com-
pleted the one-year suspension pursuant to subsection (b)(2) of
K.S.A. 8-
1014, and amendments thereto, the division shall restrict the
person's
driving privileges for one year to driving only a motor vehicle
equipped
with an ignition interlock device, approved by the division and
main-
tained at the person's expense.
(d) Upon expiration of the period of time
for which restrictions are
imposed pursuant to this section, the licensee may apply to the
division
for the return of any license previously surrendered by the
licensee. If
the license has expired, the person may apply to the division for a
new
license, which shall be issued by the division upon payment of the
proper
fee and satisfaction of the other conditions established by law,
unless the
person's driving privileges have been suspended or revoked prior to
ex-
piration.
Sec. 7. K.S.A. 2000 Supp. 8-1016 is
hereby amended to read as fol-
lows: 8-1016. (a) The secretary of revenue shall
may adopt rules and
regulations for:
(1) The approval by the division of
models and classes of ignition
interlock devices suitable for use by persons whose driving
privileges have
been restricted to driving a vehicle equipped with such a device;
and
(2) the calibration and maintenance of
such devices, which shall be
the responsibility of the manufacturer.;
and
(3) ensuring that each manufacturer
approved provides a reasonable
statewide service network where such devices may be obtained,
repaired,
replaced or serviced and such service network can be accessed 24
hours
per day through a toll-free phone service.
In adopting rules and regulations for approval
of ignition interlock de-
vices under this section, the secretary of revenue shall
insure that those
devices approved do not impede the safe operation of a
motor vehicle
and have the fewest opportunities to be bypassed so as to
render them
ineffective. require that the manufacturer or
the manufacturer's repre-
sentatives calibrate and maintain the devices at intervals not
to exceed 60
days. Calibration and maintenance shall include but not be
limited to
physical inspection of the device, the vehicle and wiring of the
device to
the vehicle for signs of tampering, calibration of the device
and down-
loading of all data contained within the device's memory and
reporting
of any violation or noncompliance to the division.
(4) The division shall adopt by rules
and regulations participant
requirements for proper use and maintenance of a certified
ignition in-
terlock device during any time period the person's license is
restricted by
the division to only operating a motor vehicle with an ignition
interlock
device installed and by rules and regulations the reporting
requirements
of the approved manufacturer to the division relating to the
person's
proper use and maintenance of a certified ignition interlock
device.
(5) The division shall require that
each manufacturer provide a credit
of at least 2% of the gross program revenues in the state as a
credit for
those persons who have otherwise qualified to obtain an ignition
interlock
restricted license under this act who are indigent as evidenced
by quali-
fication and eligibility for the federal food stamp
program.
(b) If the division approves an ignition
interlock device in accordance
with rules and regulations adopted under this section, the division
shall
give written notice of the approval to the manufacturer of the
device.
Such notice shall be admissible in any civil or criminal proceeding
in this
state.
(c) The manufacturer of an ignition
interlock device shall reimburse
the division for any cost incurred in approving or disapproving
such device
under this section.
(d) Neither the state nor any agency,
officer or employee thereof shall
be liable in any civil or criminal proceeding arising out of the
use of an
ignition interlock device approved under this section.
Sec. 8. K.S.A. 2000 Supp. 8-1567a
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, but less than .08, on
the person's
first occurrence, the person's driving privileges will be
suspended for 30
days and on the person's second or subsequent occurrence, the
person's
driving privileges shall be suspended for 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, on the person's first occurrence, the person's driving
privileges
shall be suspended for 30 days and then restricted as provided
by K.S.A.
8-1015, and amendments thereto, for an additional 330 days, and
on the
person's second or subsequent occurrence, 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. 9. K.S.A. 41-727 is hereby
amended to read as follows: 41-727.
(a) Except with regard to serving of alcoholic liquor or cereal
malt bev-
erage as permitted by K.S.A. 41-308a, 41-308b, 41-727a, 41-2610,
41-
2652, 41-2704 and 41-2727, and amendments thereto, and subject to
any
rules and regulations adopted pursuant to such statutes, no person
under
21 years of age shall possess, consume, obtain, purchase or attempt
to
obtain or purchase alcoholic liquor or cereal malt beverage except
as
authorized by law.
(b) Violation of this section by a person
18 or more years of age but
less than 21 years of age is a class C misdemeanor for which the
minimum
fine is $200.
(c) Any person less than 18 years of age
who violates this section is a
juvenile offender under the Kansas juvenile justice code. Upon
adjudi-
cation thereof and as a condition of disposition, the court shall
require
the offender to pay a fine of not less than $200 nor more than
$500.
(d) In addition to any other penalty
provided for a violation of this
section, the: (1) The court may order the
offender to do either or both of
the following:
(1) (A) Perform
40 hours of public service; or
(2) (B) attend
and satisfactorily complete a suitable educational or
training program dealing with the effects of alcohol or other
chemical
substances when ingested by humans.;
and
(2) the court shall order the division
of vehicles to suspend the driving
privilege of such offender for 30 days. The court shall order
that for any
offender who has not been issued a driver's license by the
division prior
to sentencing of the offender for a violation of this section,
the division
shall not issue such offender a driver's license for 30
days.
(e) This section shall not apply to the
possession and consumption of
cereal malt beverage by a person under the legal age for
consumption of
cereal malt beverage when such possession and consumption is
permitted
and supervised, and such beverage is furnished, by the person's
parent
or legal guardian.
(f) Any city ordinance or county
resolution prohibiting the acts pro-
hibited by this section shall provide a minimum penalty which is
not less
than the minimum penalty prescribed by this section.
(g) This section shall be part of and
supplemental to the Kansas liquor
control act.
Sec. 10. K.S.A. 2000 Supp. 8-241 as
amended by section 31 of 2001
Senate Bill No. 15 is hereby amended to read as follows: 8-241. (a)
Except
as provided in K.S.A. 8-2,125 through 8-2,142, and amendments
thereto,
any person licensed to operate a motor vehicle in this state shall
submit
to an examination whenever: (1) The division of vehicles has good
cause
to believe that such person is incompetent or otherwise not
qualified to
be licensed; or (2) the division of vehicles has suspended such
person's
license pursuant to K.S.A. 8-1014, and amendments thereto, as the
result
of a test refusal, test failure or conviction for a violation of
K.S.A. 8-1567,
and amendments thereto, or a violation a of city ordinance
or county
resolution prohibiting the acts prohibited by K.S.A. 8-1567, and
amend-
ments thereto, except that no person shall have to submit to and
suc-
cessfully complete an examination more than once as the result of
sepa-
rate suspensions arising out of the same occurrence.
(b) When a person is required to submit
to an examination pursuant
to subsection (a)(1), the fee for such examination shall be in the
amount
provided by K.S.A 8-240, and amendments thereto. When a person
is
required to submit to an examination pursuant to subsection (a)(2),
the
fee for such examination shall be $5 $25.
In addition, any person required
to submit to an examination pursuant to subsection (a)(2): (1)
As the result
of a test failure, a conviction for a violation of K.S.A.
8-1567, and amend-
ments thereto, or a violation of a city ordinance or county
resolution
prohibiting the acts prohibited by K.S.A. 8-1567, and
amendments
thereto, shall be required, at the time of examination, to
pay a reinstate-
ment fee of $50 $100 after the first
occurrence, $200 after the second
occurrence, $300 after the third occurrence and $400 after the
fourth
occurrence; and (2) as a result of a test refusal shall be
required, at the
time of examination, to pay a reinstatement fee of $400 after
the first
occurrence, $600 after the second occurrence, $800 after the
third occur-
rence and $1,000 after the fourth occurrence. No reinstatement
shall be
allowed after the fifth or subsequent occurrence under either
subsection
(b)(1) or (b)(2). All examination fees collected pursuant to
this section
shall be remitted to the state treasurer, in accordance with the
provisions
of K.S.A. 75-4215, and amendments thereto, who shall deposit the
entire
amount in the state treasury and credit 80% to the state highway
fund
and 20% shall be disposed of as provided in K.S.A. 8-267,
and amend-
ments thereto. All reinstatement fees collected pursuant to this
section
shall be remitted to the state treasurer, in accordance with the
provisions
of K.S.A. 75-4215, and amendments thereto, who shall deposit the
entire
amount in the state treasury and credit 50% to the community
alcoholism
and intoxication programs fund created pursuant to K.S.A. 41-1126,
and
amendments thereto, 20% to the juvenile detention facilities fund
created
by K.S.A. 79-4803, and amendments thereto, 20% to the forensic
labo-
ratory and materials fee fund cited in K.S.A. 28-176, and
amendments
thereto, and 10% to the driving under the influence equipment
fund
created by K.S.A. 75-5660, and amendments thereto. Moneys credited
to
the forensic laboratory and materials fee fund as provided herein
shall be
used to supplement existing appropriations and shall not be used to
sup-
plant general fund appropriations to the Kansas bureau of
investigation.
(c) When an examination is required
pursuant to subsection (a), at
least five days' written notice of the examination shall be given
to the
licensee. The examination administered hereunder shall be at least
equiv-
alent to the examination required by subsection (e) of K.S.A.
8-247, and
amendments thereto, with such additional tests as the division
deems
necessary. Upon the conclusion of such examination, the division
shall
take action as may be appropriate and may suspend or revoke the
license
of such person or permit the licensee to retain such license, or
may issue
a license subject to restrictions as permitted under K.S.A. 8-245,
and
amendments thereto.
(d) Refusal or neglect of the licensee to
submit to an examination as
required by this section shall be grounds for suspension or
revocation of
the license.
Sec. 11. K.S.A. 8-2,145 is hereby
amended to read as follows: 8-
2,145. (a) Prior to requesting a test or tests pursuant to K.S.A.
8-2,137,
and amendments thereto, in addition to any notices provided
pursuant to
paragraph (1) of subsection (f) of K.S.A. 8-1001,
and amendments
thereto, the following notice shall be provided orally and in
writing:
Whenever a law enforcement officer has reasonable grounds to
believe a
person has been driving a commercial motor vehicle while having
alcohol
or other drugs in such person's system and the person refuses to
submit
to and complete a test or tests requested by a law enforcement
officer or
submits to and completes a test requested by a law enforcement
officer
which determines that the person's alcohol concentration is .04 or
greater,
the person will be disqualified from driving a commercial motor
vehicle
for at least one year, pursuant to Kansas law.
(b) It shall not be a defense that the
person did not understand the
notices required by this section.
(c) Upon completion of the notices set
out in paragraph (1) of sub-
section (f) of K.S.A. 8-1001, and amendments
thereto, and the notices in
subsection (a), the law enforcement officer shall proceed to
request a test
or tests. In addition to the completion of any certification
required under
K.S.A. 8-1002, and amendments thereto, a law enforcement officer's
cer-
tification shall be prepared and signed by one or more officers to
certify:
(1) There existed 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, while having alcohol or other drugs in such
person's
system;
(2) the person had been placed under
arrest, was in custody or had
been involved in a motor vehicle accident or collision;
(3) a law enforcement officer had
presented the person with the no-
tices required by this section; and
(4) the person refused to submit to and
complete a test or the test
result for alcohol content of blood or breath was .04 or
greater.
(d) For purposes of this section,
certification shall be complete upon
signing, and no additional acts of oath, affirmation,
acknowledgment or
proof of execution shall be required. The signed certification or a
copy
or photostatic reproduction thereof shall be admissible in evidence
in all
proceedings brought pursuant to this act, and receipt of any such
certi-
fication, copy or reproduction shall accord the division authority
to pro-
ceed as set forth herein. Any person who signs a certification
submitted
to the division knowing it contains a false statement is guilty of
a class B
misdemeanor.
(e) Upon completing a certification under
subsection (c), the officer
shall serve upon the person notice of disqualification of the
privilege to
drive a commercial motor vehicle pursuant to K.S.A. 8-2,142, and
amend-
ments thereto, together with a copy of the certification. In cases
where a
.04 or greater test result is established by a subsequent analysis
of a breath
or blood sample, the officer shall serve notice of such suspension
in per-
son or by another designated officer or by mailing the notice to
the person
at the address provided at the time of the test. If the
determination of a
test refusal or .04 or greater test result is made while the person
is still
in custody, service shall be made in person by the officer on
behalf of the
division of vehicles.
(f) The notice shall contain the
following information:
(1) The person's name, driver's license
number and current address
pursuant to K.S.A. 8-248, and amendments thereto;
(2) the reason and statutory grounds for
the disqualification;
(3) the date notice is being served and
the effective date of the dis-
qualification, which shall be the 20th day after the date of
service;
(4) the right of the person to request an
administrative hearing; and
(5) the procedure the person must follow
to request an administrative
hearing. The notice of disqualification shall also inform the
person that
all correspondence will be mailed to the person at the address
contained
in the notice of disqualification unless the person notifies the
division in
writing of a different address or change of address. The address
provided
will be considered a change of address for purposes of K.S.A.
8-248, and
amendments thereto, if the address furnished is different from that
on
file with the division.
(g) If the person mails a written request
which is postmarked within
10 calendar days after service of the notice, if by personal
service, or 13
calendar days after service, if by mail, the division shall
schedule a hearing
in the county where the alleged violation occurred, or in a county
adjacent
thereto. The licensee may request that subpoenas be issued in
accordance
with the notice provided pursuant to subsection (d). Any request
made
by the licensee to subpoena witnesses must be made in writing at
the
time the hearing is requested and must include the name and
current
address of such witness and, except for the certifying law
enforcement
officer or officers, a statement of how the testimony of such
witness is
relevant. Upon receiving a timely request for a hearing, the
division shall
mail to the person notice of the time, date and place of hearing in
ac-
cordance with subsection (i) and extend the person's temporary
driving
privileges until the date set for the hearing by the division,
unless oth-
erwise disqualified, suspended, revoked or canceled.
(h) The law enforcement officer shall
forward the certification re-
quired under subsection (c) to the director within five days of the
date
of certification. Upon receipt of the certification, the division
shall review
the certification to determine that it meets the requirements of
subsection
(c). Upon so determining, the director shall proceed to disqualify
the
driver from driving a commercial motor vehicle in accordance with
the
notice of disqualification previously served.
(i) All notices of disqualification under
this section and all notices of
a hearing held under this section shall be sent by first-class mail
and a
United States post office certificate of mailing shall be obtained
therefor.
All notices so mailed shall be deemed received three days after
mailing.
(j) 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.
(k) The rules regarding evidence and
procedure at hearings held un-
der K.S.A. 8-1002 section 1, and amendments
thereto, shall be applicable
to hearings held under this section. At the hearing on a
disqualification
of commercial driving privileges, the issues shall be limited to
those set
out in the certification.
(l) The division shall prepare and
distribute forms for use by law
enforcement officers in giving the notice required by this
section.
Sec. 12. K.S.A. 2000 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, or was under
the
age of 21 years while having alcohol or other drugs in such
person's sys-
tem; and one of the following conditions exists: (1) The person has
been
arrested or otherwise taken into custody for any offense involving
oper-
ation or attempted operation of a vehicle while under the influence
of
alcohol or drugs, or both, or for a violation of K.S.A. 8-1567a,
and amend-
ments thereto, 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
avail-
able to law enforcement officers 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 constitu-
tional right;
(C) there is no constitutional right to
consult with an attorney re-
garding 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 for the
first occurrence, two years for the second occurrence, three
years for the
third occurrence, 10 years for the fourth occurrence and
permanently
revoked for a fifth or subsequent offense;
(E) if the person submits to and
completes the test or tests and the
test results show an alcohol concentration of .08 or greater, the
person's
driving privileges will be suspended for at least
30 days for the first oc-
currence, one year for the second, third or fourth occurrence
and per-
manently revoked for a fifth or subsequent offense;
(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
suspended for at
least one year;
(G) (F) 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 person's
driving priv-
ileges will be suspended up to one year;
(H) (G) 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;
(I) (H) 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
(J) (I) after the
completion of the testing, the person has the right to
consult with an attorney and may secure additional testing, which,
if de-
sired, should be done as soon as possible and is customarily
available from
medical care facilities and physicians.
(g) 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
shall 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
amendments
thereto shall not invalidate any action taken as a result of the
requirements
of this section. If a law enforcement officer has reasonable
grounds to believe
that the person has been driving or attempting to drive a
vehicle while
having alcohol or other drugs in such person's system and such
person was
under 21 years of age, the person also shall be given the
notices required by
K.S.A. 8-1567a, and amendments thereto. Any failure to give the
notices
required by K.S.A. 8-1567a, and amendments thereto, shall not
invalidate
any action taken as a result of the requirements of this
section.
(h) 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 be-
lieve 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 without a search
warrant
under the authority of K.S.A. 22-2501, and amendments
thereto. If the
test results show a blood or breath alcohol concentration of .08 or
greater,
the person's driving privileges shall be subject to suspension, or
suspen-
sion and restriction, as provided in K.S.A. 8-1002 and 8-1014, and
amend-
ments thereto.
(i) The person's refusal shall be
admissible 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.
(j) 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 .04 or greater, the person shall be
dis-
qualified from driving a commercial motor vehicle, pursuant to
K.S.A. 8-
2,142, and amendments thereto. If a law enforcement officer had
rea-
sonable 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 suspension, 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.
(k) An 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
without a
search warrant under the authority of K.S.A. 22-2501, and
amendments
thereto.
(2) (l) Failure
of a person to provide an adequate breath sample or
samples as directed shall constitute a refusal unless the person
shows that
the failure was due to physical inability caused by a medical
condition
unrelated to any ingested alcohol or drugs.
(3) (m) It shall
not be a defense that the person did not understand
the written or oral notice required by this section.
(4) (n) No test
results shall be suppressed because of technical irreg-
ularities in the consent or notice required pursuant to
K.S.A. 8-2,145, and
amendments thereto this act.
(g) (o) Nothing
in this section shall be construed to limit the admis-
sibility at any trial of alcohol or drug concentration testing
results obtained
pursuant to a search warrant.
(h) (p) 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) (q) This act
is remedial law and shall be liberally construed to
promote public health, safety and welfare.
Sec. 13. K.S.A. 2000 Supp. 8-1002
is hereby amended to read as
follows: 8-1002. (a) Whenever a test is requested pursuant to this
act and
results in either a test failure or test refusal, a law enforcement
officer's
certification shall be prepared. If the person had been driving a
com-
mercial motor vehicle, as defined in K.S.A. 8-2,128, and
amendments
thereto, a separate certification pursuant to K.S.A. 8-2,145 and
amend-
ments thereto shall be prepared in addition to any certification
required
by this section. The certification required by this section shall
be signed
by one or more officers to certify:
(1) With regard to a test refusal, that:
(A) There existed 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 be-
lieve that the person had been driving a commercial motor vehicle,
as
defined in K.S.A. 8-2,128, and amendments thereto, or is under
21 years
of age 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 (D) the person refused
to
submit to and complete a test as requested by a law enforcement
officer.
(2) With regard to a test failure, that:
(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 vehicle, as defined in K.S.A.
8-2,128,
and amendments thereto, or is under 21 years of age 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 (D) the result of the test showed that the person had
an
alcohol concentration of .08 or greater in such person's blood or
breath.
(3) With regard to failure of a breath
test, in addition to those matters
required to be certified under subsection (a)(2), 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 requirements set out by the Kansas department of health and
envi-
ronment; and (C) the person who operated the testing equipment
was
certified by the Kansas department of health and environment to
operate
such equipment.
(b) For purposes of this section,
certification shall be complete upon
signing, and no additional acts of oath, affirmation,
acknowledgment or
proof of execution shall be required. The signed certification or a
copy
or photostatic reproduction thereof shall be admissible in evidence
in all
proceedings brought pursuant to this act, and receipt of any such
certi-
fication, copy or reproduction shall accord the department
authority to
proceed as set forth herein. Any person who signs a certification
submit-
ted to the division knowing it contains a false statement is guilty
of a class
B nonperson misdemeanor.
(c) When the officer directing
administration of the testing deter-
mines that a person has refused a test and the criteria of
subsection (a)(1)
have been met or determines that a person has failed a test and the
criteria
of subsection (a)(2) have been met, the officer shall serve upon
the person
notice of suspension of driving privileges pursuant to K.S.A.
8-1014, and
amendments thereto. If the determination is made while the person
is
still in custody, service shall be made in person by the officer on
behalf
of the division of vehicles. In cases where a test failure is
established by
a subsequent analysis of a breath, blood or urine sample, the
officer shall
serve notice of such suspension in person or by another designated
officer
or by mailing the notice to the person at the address provided at
the time
of the test.
(d) In addition to the information
required by subsection (a), the law
enforcement officer's certification and notice of suspension shall
contain
the following information: (1) The person's name, driver's license
number
and current address; (2) the reason and statutory grounds for the
suspen-
sion; (3) the date notice is being served and a statement that the
effective
date of the suspension shall be the 30th calendar day after the
date of
service; (4) the right of the person to request an administrative
hearing;
and (5) the procedure the person must follow to request an
administrative
hearing. The law enforcement officer's certification and notice of
suspen-
sion shall also inform the person that all correspondence will be
mailed
to the person at the address contained in the law enforcement
officer's
certification and notice of suspension unless the person notifies
the di-
vision in writing of a different address or change of address. The
address
provided will be considered a change of address for purposes of
K.S.A.
8-248, and amendments thereto, if the address furnished is
different from
that on file with the division.
(e) If a person refuses a test or if a
person is still in custody when it
is determined that the person has failed a test, the officer shall
take any
license in the possession of the person and, if the license is not
expired,
suspended, revoked or canceled, shall issue a temporary license
effective
until the 30th calendar day after the date of service set out in
the law
enforcement officer's certification and notice of suspension. If
the test
failure is established by a subsequent analysis of a breath or
blood sample,
the temporary license shall be served together with the copy of the
law
enforcement officer's certification and notice of suspension. A
temporary
license issued pursuant to this subsection shall bear the same
restrictions
and limitations as the license for which it was exchanged. Within
five days
after the date of service of a copy of the law enforcement
officer's certi-
fication and notice of suspension the officer's certification and
notice of
suspension, along with any licenses taken, shall be forwarded to
the di-
vision.
(f) Upon receipt of the law enforcement
officer's certification, the
division shall review the certification to determine that it meets
the
requirements of subsection (a). Upon so determining, the division
shall
proceed to suspend the person's driving privileges in accordance
with the
notice of suspension previously served. If the requirements of
subsection
(a) are not met, the division shall dismiss the administrative
proceeding
and return any license surrendered by the person.
(g) If the person mails a written
request which is postmarked within
10 days after service of the notice, if by personal
service, or 13 days after
service, if by mail, the division shall schedule a hearing
in the county
where the alleged violation occurred, or in a county
adjacent thereto. The
licensee may request that subpoenas be issued in accordance
with the
notice provided pursuant to subsection (d). Any request
made by the
licensee to subpoena witnesses must be made in writing at
the time the
hearing is requested and must include the name and current
address of
such witnesses and, except for the law enforcement officer
or officers
certifying refusal or failure, a statement of how the
testimony of such
witness is relevant. Upon receiving a timely request for a
hearing, the
division shall mail to the person notice of the time, date
and place of
hearing in accordance with subsection (l) and extend the
person's tem-
porary driving privileges until the date set for the
hearing by the division.
(h) (1) If the officer
certifies that the person refused the test, the
scope of the hearing shall be limited to whether: (A) A law
enforcement
officer had 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 had been
driving a com-
mercial 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; (B)
the person was in custody or arrested for an alcohol or
drug related of-
fense or was involved in a vehicle accident or collision
resulting in prop-
erty damage, personal injury or death; (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 (D) the person refused
to submit
to and complete a test as requested by a law enforcement
officer.
(2) If the officer certifies that
the person failed the test, the scope of
the hearing shall be limited to whether: (A) 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 amendments thereto, while having
alcohol or other
drugs in such person's system; (B) the person was in
custody or arrested
for an alcohol or drug related offense or was involved in a
vehicle accident
or collision resulting in property damage, personal injury
or death; (C) a
law enforcement officer had presented the person with the
oral and writ-
ten notice required by K.S.A. 8-1001, and amendments
thereto; (D) the
testing equipment used was reliable; (E) the person who
operated the
testing equipment was qualified; (F) the testing procedures
used were
reliable; (G) the test result determined that the person
had an alcohol
concentration of .08 or greater in such person's blood or
breath; and (H)
the person was operating a vehicle.
(i) At a hearing pursuant to this
section, or upon court review of an
order entered at such a hearing, an affidavit of the
custodian of records
at the Kansas department of health and environment stating
that the
breath testing device was certified and the operator of
such device was
certified on the date of the test shall be admissible into
evidence in the
same manner and with the same force and effect as if the
certifying officer
or employee of the Kansas department of health and
environment had
testified in person. Such affidavit shall be admitted to
prove such relia-
bility without further foundation requirement. A certified
operator of a
breath testing device shall be competent to testify
regarding the proper
procedures to be used in conducting the test.
(j) At a hearing pursuant to this
section, or upon court review of an
order entered at such hearing, in which the report of blood
test results
have been prepared by the Kansas bureau of investigation or
other fo-
rensic laboratory of a state or local law enforcement
agency are to be
introduced as evidence, the report, or a copy of the
report, of the findings
of the forensic examiner shall be admissible into evidence
in the same
manner and with the same force and effect as if the
forensic examiner
who performed such examination, analysis, comparison or
identification
and prepared the report thereon had testified in
person.
(k) If no timely request for
hearing is made, the suspension period
imposed pursuant to this section shall begin upon the
expiration of the
temporary license granted under subsection (e). If a timely
request for
hearing is made, the hearing shall be held within 30 days
of the date the
request for hearing is received by the division, except
that failure to hold
such hearing within 30 days shall not be cause for
dismissal absent a
showing of prejudice. At the hearing, the director or the
representative
of the director, shall either affirm the order of
suspension or suspension
and restriction or dismiss the administrative action. If
the division is un-
able to hold a hearing within 30 days of the date upon
which the request
for hearing is received, the division shall extend the
person's temporary
driving privileges until the date set for the hearing by
the division. No
extension of temporary driving privileges shall be issued
for continuances
requested by or on behalf of the licensee. If the person
whose privileges
are suspended is a nonresident licensee, the license of the
person shall
be forwarded to the appropriate licensing authority in the
person's state
of residence if the result at the hearing is adverse to
such person or if no
timely request for a hearing is received.
(l) All notices affirming or
canceling a suspension under this section,
all notices of a hearing held under this section and all
issuances of tem-
porary driving privileges pursuant to subsection (k) shall
be sent by first-
class mail and a U.S. post office certificate of mailing
shall be obtained
therefor. All notices so mailed shall be deemed received
three days after
mailing.
(m) (g) The
division shall prepare and distribute forms for use by law
enforcement officers in giving the notice required by this
section.
(n) This section and the
applicable provisions contained in subsec-
tions (d) and (e) of K.S.A. 8-255 and amendments thereto
constitute the
administrative procedures to be used for all administrative
hearings held
under this act. To the extent that this section and any
other provision of
law conflicts, this section prevails.
(o) (h) The
provisions of K.S.A. 60-206 and amendments thereto re-
garding the computation of time shall not be applicable in
determining
the effective date of suspension set out in subsection (d)
or the time for
requesting an administrative hearing set out in subsection
(g). ``Calendar
day'' when used in this section shall mean that every day shall be
included
in computations of time whether a week day, Saturday, Sunday or
holiday.
Sec. 14. K.S.A. 2000 Supp. 8-1567
is hereby amended to read as
follows: 8-1567. (a) No person shall operate or attempt to operate
any
vehicle within this state while:
(1) The alcohol concentration in the
person's blood or breath as
shown by any competent evidence, including other competent
evidence,
as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and
amend-
ments thereto, is .08 or more;
(2) the alcohol concentration in the
person's blood or breath, as meas-
ured within two hours of the time of operating or attempting to
operate
a vehicle, is .08 or more;
(3) under the influence of alcohol to a
degree that renders the person
incapable of safely driving a vehicle;
(4) under the influence of any drug or
combination of drugs to a
degree that renders the person incapable of safely driving a
vehicle; or
(5) under the influence of a combination
of alcohol and any drug or
drugs to a degree that renders the person incapable of safely
driving a
vehicle.
(b) No person shall operate or attempt to
operate any vehicle within
this state if the person is a habitual user of any narcotic,
hypnotic, som-
nifacient or stimulating drug.
(c) If a person is charged with a
violation of this section involving
drugs, the fact that the person is or has been entitled to use the
drug
under the laws of this state shall not constitute a defense against
the
charge.
(d) Upon a first conviction of a
violation of this section, a person shall
be guilty of a class B, nonperson misdemeanor and sentenced to not
less
than 48 consecutive hours nor more than six months' imprisonment,
or
in the court's discretion 100 hours of public service, and fined
not less
than $200 $500 nor more than
$500 $1,000. The person convicted must
serve at least 48 consecutive hours' imprisonment or 100 hours of
public
service either before or as a condition of any grant of probation
or sus-
pension, reduction of sentence or parole. In addition, the court
shall enter
an order which requires that the person enroll in and successfully
com-
plete an alcohol and drug safety action education program or
treatment
program as provided in K.S.A. 8-1008, and amendments thereto, or
both
the education and treatment programs.
(e) On a second conviction of a violation
of this section, a person shall
be guilty of a class A, nonperson misdemeanor and sentenced to not
less
than 90 days nor more than one year's imprisonment and fined not
less
than $500 $1,000 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. Except
as provided in subsection (g), $1,500. 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. 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 court may place the person
convicted un-
der a house arrest program pursuant to K.S.A. 21-4603b, and
amend-
ments thereto, to serve the remainder of the minimum sentence
only after
such person has served 48 consecutive hours' imprisonment.
As a condi-
tion of any grant of probation, suspension of sentence or parole or
of any
other release, the person shall be required to enter into and
complete a
treatment program for alcohol and drug abuse as provided in K.S.A.
8-
1008, and amendments thereto.
(f) On the third or a
subsequent conviction of a violation of this sec-
tion, a person shall be guilty of a nonperson felony and sentenced
to not
less than 90 days nor more than one year's imprisonment and fined
not
less than $1,000 $1,500 nor more than
$2,500. Except as provided in
subsection (g), 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 alcohol and drug abuse as provided by K.S.A. 8-1008,
and
amendments thereto. The 90 days' imprisonment mandated by this
sub-
section may be served in a work release program only after such
person
has served 48 consecutive hours' imprisonment, provided such work
re-
lease program requires such person to return to confinement at the
end
of each day in the work release program. The court may place the
person
convicted under a house arrest program pursuant to K.S.A.
21-4603b,
and amendments thereto, to serve the remainder of the minimum
sentence
only after such person has served 48 consecutive hours'
imprisonment.
(g) On a second or subsequent
conviction of a violation of this section,
the court may place the person convicted under a house
arrest program,
pursuant to K.S.A. 21-4603b, and amendments thereto, to
serve the re-
mainder of the minimum sentence only after such person has
served 48
consecutive hours' imprisonment. On the fourth
or subsequent conviction
of a violation of this section, a person shall be guilty of a
nonperson felony
and sentenced to not less than 90 days nor more than one year's
impris-
onment and fined $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 90
days' im-
prisonment mandated by this subsection may be served in a work
release
program only after such person has served 72 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.
After the term of imprisonment imposed by the court, the person
shall be
placed in the custody of the secretary of corrections and shall
be required
to participate in an inpatient or outpatient program for alcohol
and drug
abuse as determined by the secretary. Upon completion of the
term of
imprisonment and the required treatment program for alcohol and
drug
abuse, the person shall be released to a mandatory one-year
period of
postrelease supervision, which such period of postrelease
supervision shall
not be reduced. During such postrelease supervision, the person
shall be
required to participate in an approved aftercare plan as
determined by
the Kansas parole board as a condition of release. Any violation
of the
conditions of such postrelease supervision may subject such
person to
revocation of postrelease supervision pursuant to K.S.A.
75-5217 et seq.,
and amendments thereto and as otherwise provided by
law.
(h) Any person convicted of violating
this section or an ordinance
which prohibits the acts that this section prohibits who had a
child under
the age of 14 years in the vehicle at the time of the offense
shall have such
person's punishment enhanced by one month of imprisonment. This
im-
prisonment must be served consecutively to any other penalty
imposed
for a violation of this section or an ordinance which prohibits
the acts
that this section prohibits. During the service of the one month
enhanced
penalty, the judge may order the person on house arrest, work
release or
other conditional release.
(h) (i) The court
may establish the terms and time for payment of
any fines, fees, assessments and costs imposed pursuant to this
section.
Any assessment and costs shall be required to be paid not later
than 90
days after imposed, and any remainder of the fine shall be paid
prior to
the final release of the defendant by the court.
(i) (j) In lieu
of payment of a fine imposed pursuant to this section,
the court may order that the person perform community service
specified
by the court. The person shall receive a credit on the fine imposed
in an
amount equal to $5 for each full hour spent by the person in the
specified
community service. The community service ordered by the court shall
be
required to be performed not later than one year after the fine is
imposed
or by an earlier date specified by the court. If by the required
date the
person performs an insufficient amount of community service to
reduce
to zero the portion of the fine required to be paid by the person,
the
remaining balance of the fine shall become due on that date.
(j) (k) The court
shall report every conviction of a violation of this
section and every diversion agreement entered into in lieu of
further
criminal proceedings or a complaint alleging a violation of this
section to
the division. Prior to sentencing under the provisions of this
section, the
court shall request and shall receive from the division a record of
all prior
convictions obtained against such person for any violations of any
of the
motor vehicle laws of this state.
(k) (l) For the
purpose of determining whether a conviction is a first,
second, third, fourth or subsequent conviction in sentencing
under this
section:
(1) ``Conviction'' includes being
convicted of a violation of this section
or entering into a diversion agreement in lieu of further criminal
pro-
ceedings on a complaint alleging a violation of this section;
(2) ``conviction'' includes being
convicted of a violation of a law of
another state or an ordinance of any city, or resolution of any
county,
which prohibits the acts that this section prohibits or entering
into a di-
version agreement in lieu of further criminal proceedings in a case
alleg-
ing a violation of such law, ordinance or resolution;
(3) only convictions occurring in
the immediately preceding five
years, including prior to the effective date of this act,
shall be taken into
account, but the court may consider other prior convictions
in determin-
ing the sentence to be imposed within the limits provided
for a first,
second, third or subsequent offender, whichever is
applicable; and any
convictions occurring during a person's lifetime shall be taken
into ac-
count when determining the sentence to be imposed for a first,
second,
third, fourth or subsequent offender;
(4) it is irrelevant whether an offense
occurred before or after con-
viction for a previous offense.;
and
(5) a person may enter into a
diversion agreement in lieu of further
criminal proceedings for a violation of this section, and
amendments
thereto, or an ordinance which prohibits the acts of this
section, and
amendments thereto, only once during the person's
lifetime.
(l) (m) Upon
conviction of a person of a violation of this section or a
violation of a city ordinance or county resolution prohibiting the
acts
prohibited by this section, the division, upon receiving a report
of con-
viction, shall suspend, restrict or suspend and restrict the
person's driving
privileges as provided by K.S.A. 8-1014, and amendments
thereto.
(m) (n) Nothing
contained in this section shall be construed as pre-
venting any city from enacting ordinances, or any county from
adopting
resolutions, declaring acts prohibited or made unlawful by this act
as
unlawful or prohibited in such city or county and prescribing
penalties
for violation thereof, but the minimum penalty prescribed by any
such
ordinance or resolution shall not be less than the minimum penalty
pre-
scribed by this act for the same violation, and the maximum penalty
in
any such ordinance or resolution shall not exceed the maximum
penalty
prescribed for the same violation. In addition, any such ordinance
or
resolution shall authorize the court to order that the convicted
person
pay restitution to any victim who suffered loss due to the
violation for
which the person was convicted.
(n) (o) No plea
bargaining agreement shall be entered into nor shall
any judge approve a plea bargaining agreement entered into for the
pur-
pose of permitting a person charged with a violation of this
section, or a
violation of any ordinance of a city or resolution of any county in
this state
which prohibits the acts prohibited by this section, to avoid the
mandatory
penalties established by this section or by the ordinance. For the
purpose
of this subsection, entering into a diversion agreement pursuant to
K.S.A.
12-4413 et seq. or 22-2906 et seq., and amendments
thereto, shall not
constitute plea bargaining.
(o) (p) The
alternatives set out in subsections (a)(1) (2) and
(3), (a)(2)
and (a)(3) may be pleaded in the alternative, and the state,
city or county,
but shall not be required to, may elect one or two of the three
prior to
submission of the case to the fact finder.
(p) (q) Upon a
fourth or subsequent conviction, the judge of any court
in which any person is convicted of violating this section, may
revoke the
person's license plate or temporary registration certificate of the
motor
vehicle driven during the violation of this section for a period of
one year.
Upon revoking any license plate or temporary registration
certificate pur-
suant to this subsection, the court shall require that such license
plate or
temporary registration certificate be surrendered to the court.
(q) (r) For the
purpose of this section: (1) ``Alcohol concentration''
means the number of grams of alcohol per 100 milliliters of blood
or per
210 liters of breath.
(2) ``Imprisonment'' shall include any
restrained environment in
which the court and law enforcement agency intend to retain custody
and
control of a defendant and such environment has been approved by
the
board of county commissioners or the governing body of a city.
(s) The amount of the increase in
fines as specified in this section shall
be remitted by the clerk of the district court to the state
treasurer in
accordance with the provisions of K.S.A. 75-4215, and
amendments
thereto. Upon receipt of remittance of the increase provided in
this act,
the state treasurer shall deposit the entire amount in the state
treasury
and the state treasurer shall credit 50% to the community
alcoholism and
intoxication programs fund and 50% to the department of
corrections
alcohol and drug abuse treatment fund, which is hereby created
in the
state treasury.
Sec. 15. K.S.A. 2000 Supp. 22-3717
is hereby amended to read as
follows: 22-3717. (a) Except as otherwise provided by this section,
K.S.A.
1993 Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through
21-
4638 and amendments thereto, and K.S.A. 8-1567, and
amendments
thereto, an inmate, including an inmate sentenced pursuant
to K.S.A. 21-
4618 and amendments thereto, shall be eligible for parole after
serving
the entire minimum sentence imposed by the court, less good time
cred-
its.
(b) (1) Except as provided by
K.S.A. 21-4635 through 21-4638 and
amendments thereto, an inmate sentenced to imprisonment for the
crime
of capital murder, or an inmate sentenced for the crime of murder
in the
first degree based upon a finding of premeditated murder, committed
on
or after July 1, 1994, shall be eligible for parole after serving
25 years of
confinement, without deduction of any good time credits.
(2) Except as provided by subsection
(b)(1) or (b)(4), K.S.A. 1993
Supp. 21-4628 prior to its repeal and K.S.A. 21-4635 through
21-4638,
and amendments thereto, an inmate sentenced to imprisonment for
an
off-grid offense committed on or after July 1, 1993, but prior to
July 1,
1999, shall be eligible for parole after serving 15 years of
confinement,
without deduction of any good time credits and an inmate sentenced
to
imprisonment for an off-grid offense committed on or after July 1,
1999,
shall be eligible for parole after serving 20 years of confinement
without
deduction of any good time credits.
(3) Except as provided by K.S.A. 1993
Supp. 21-4628 prior to its
repeal, an inmate sentenced for a class A felony committed before
July
1, 1993, including an inmate sentenced pursuant to K.S.A. 21-4618
and
amendments thereto, shall be eligible for parole after serving 15
years of
confinement, without deduction of any good time credits.
(4) An inmate sentenced to imprisonment
for a violation of subsec-
tion (a) of K.S.A. 21-3402 and amendments thereto committed on or
after
July 1, 1996, but prior to July 1, 1999, shall be eligible for
parole after
serving 10 years of confinement without deduction of any good time
cred-
its.
(c) Except as provided in subsection (e),
if an inmate is sentenced to
imprisonment for more than one crime and the sentences run
consecu-
tively, the inmate shall be eligible for parole after serving the
total of:
(1) The aggregate minimum sentences, as
determined pursuant to
K.S.A. 21-4608 and amendments thereto, less good time credits for
those
crimes which are not class A felonies; and
(2) an additional 15 years, without
deduction of good time credits,
for each crime which is a class A felony.
(d) (1) Persons sentenced for
crimes, other than off-grid crimes,
committed on or after July 1, 1993, will not be eligible for
parole, but will
be released to a mandatory period of postrelease supervision upon
com-
pletion of the prison portion of their sentence as follows:
(A) Except as provided in subparagraphs
(D) and (E), persons sen-
tenced for nondrug severity level 1 through 4 crimes and drug
severity
levels 1 and 2 crimes must serve 36 months, plus the amount of
good
time earned and retained pursuant to K.S.A. 21-4722 and
amendments
thereto, on postrelease supervision.
(B) Except as provided in subparagraphs
(D) and (E), persons sen-
tenced for nondrug severity levels 5 and 6 crimes and drug severity
level
3 crimes must serve 24 months, plus the amount of good time
earned
and retained pursuant to K.S.A. 21-4722, and amendments thereto,
on
postrelease supervision.
(C) Except as provided in subparagraphs
(D) and (E), persons sen-
tenced for nondrug severity level 7 through 10 crimes and drug
severity
level 4 crimes must serve 12 months, plus the amount of good time
earned
and retained pursuant to K.S.A. 21-4722 and amendments thereto,
on
postrelease supervision.
(D) (i) The sentencing judge shall
impose the postrelease supervi-
sion period provided in subparagraph (d)(1)(A), (d)(1)(B) or
(d)(1)(C),
unless the judge finds substantial and compelling reasons to impose
a
departure based upon a finding that the current crime of conviction
was
sexually violent or sexually motivated. In that event, departure
may be
imposed to extend the postrelease supervision to a period of up to
60
months.
(ii) If the sentencing judge departs from
the presumptive postrelease
supervision period, the judge shall state on the record at the time
of
sentencing the substantial and compelling reasons for the
departure. De-
partures in this section are subject to appeal pursuant to K.S.A.
21-4721
and amendments thereto.
(iii) In determining whether substantial
and compelling reasons exist,
the court shall consider:
(a) Written briefs or oral arguments
submitted by either the defend-
ant or the state;
(b) any evidence received during the
proceeding;
(c) the presentence report, the victim's
impact statement and any
psychological evaluation as ordered by the court pursuant to
subsection
(e) of K.S.A. 21-4714 and amendments thereto; and
(d) any other evidence the court finds
trustworthy and reliable.
(iv) The sentencing judge may order that
a psychological evaluation
be prepared and the recommended programming be completed by the
offender. The department of corrections or the parole board shall
ensure
that court ordered sex offender treatment be carried out.
(v) In carrying out the provisions of
subparagraph (d)(1)(D), the court
shall refer to K.S.A. 21-4718 and amendments thereto.
(vi) Upon petition, the parole board may
provide for early discharge
from the postrelease supervision period upon completion of court
or-
dered programs and completion of the presumptive postrelease
super-
vision period, as determined by the crime of conviction, pursuant
to sub-
paragraph (d)(1)(A), (d)(1)(B) or (d)(1)(C). Early discharge
from
postrelease supervision is at the discretion of the parole
board.
(vii) Persons convicted of crimes deemed
sexually violent or sexually
motivated, shall be registered according to the habitual sex
offender reg-
istration act, K.S.A. 22-4901 through 22-4910 and amendments
thereto.
(E) The period of postrelease supervision
provided in subparagraphs
(A) and (B) may be reduced by up to 12 months and the period of
post-
release supervision provided in subparagraph (C) may be
reduced by
up to six months based on the offender's compliance with conditions
of
supervision and overall performance while on postrelease
supervision.
The reduction in the supervision period shall be on an earned basis
pur-
suant to rules and regulations adopted by the secretary of
corrections.
(F) In cases where sentences for crimes
from more than one severity
level have been imposed, the offender shall serve the longest
period of
postrelease supervision as provided by this section available for
any crime
upon which sentence was imposed irrespective of the severity level
of the
crime. Supervision periods will not aggregate.
(2) As used in this section, ``sexually
violent crime'' means:
(A) Rape, K.S.A. 21-3502, and amendments
thereto;
(B) indecent liberties with a child,
K.S.A. 21-3503, and amendments
thereto;
(C) aggravated indecent liberties with a
child, K.S.A. 21-3504, and
amendments thereto;
(D) criminal sodomy, subsection (a)(2)
and (a)(3) of K.S.A. 21-3505
and amendments thereto;
(E) aggravated criminal sodomy, K.S.A.
21-3506, and amendments
thereto;
(F) indecent solicitation of a child,
K.S.A. 21-3510, and amendments
thereto;
(G) aggravated indecent solicitation of a
child, K.S.A. 21-3511, and
amendments thereto;
(H) sexual exploitation of a child,
K.S.A. 21-3516, and amendments
thereto;
(I) aggravated sexual battery, K.S.A.
21-3518, and amendments
thereto;
(J) any conviction for a felony offense
in effect at any time prior to
the effective date of this act, that is comparable to a sexually
violent crime
as defined in subparagraphs (A) through (I), or any federal or
other state
conviction for a felony offense that under the laws of this state
would be
a sexually violent crime as defined in this section;
(K) an attempt, conspiracy or criminal
solicitation, as defined in
K.S.A. 21-3301, 21-3302, 21-3303, and amendments thereto, of a
sexually
violent crime as defined in this section; or
(L) any act which at the time of
sentencing for the offense has been
determined beyond a reasonable doubt to have been sexually
motivated.
As used in this subparagraph, ``sexually motivated'' means that one
of the
purposes for which the defendant committed the crime was for the
pur-
pose of the defendant's sexual gratification.
(e) If an inmate is sentenced to
imprisonment for a crime committed
while on parole or conditional release, the inmate shall be
eligible for
parole as provided by subsection (c), except that the Kansas parole
board
may postpone the inmate's parole eligibility date by assessing a
penalty
not exceeding the period of time which could have been assessed if
the
inmate's parole or conditional release had been violated for
reasons other
than conviction of a crime.
(f) If a person is sentenced to prison
for a crime committed on or
after July 1, 1993, while on probation, parole, conditional release
or in a
community corrections program, for a crime committed prior to July
1,
1993, and the person is not eligible for retroactive application of
the
sentencing guidelines and amendments thereto pursuant to K.S.A.
21-
4724 and amendments thereto, the new sentence shall not be
aggregated
with the old sentence, but shall begin when the person is paroled
or
reaches the conditional release date on the old sentence. If the
offender
was past the offender's conditional release date at the time the
new of-
fense was committed, the new sentence shall not be aggregated with
the
old sentence but shall begin when the person is ordered released by
the
Kansas parole board or reaches the maximum sentence expiration
date
on the old sentence, whichever is earlier. The new sentence shall
then
be served as otherwise provided by law. The period of postrelease
su-
pervision shall be based on the new sentence, except that those
offenders
whose old sentence is a term of imprisonment for life, imposed
pursuant
to K.S.A. 1993 Supp. 21-4628 prior to its repeal, or an
indeterminate
sentence with a maximum term of life imprisonment, for which there
is
no conditional release or maximum sentence expiration date, shall
remain
on postrelease supervision for life or until discharged from
supervision
by the Kansas parole board.
(g) Subject to the provisions of this
section, the Kansas parole board
may release on parole those persons confined in institutions who
are el-
igible for parole when: (1) The board believes that the inmate
should be
released for hospitalization, for deportation or to answer the
warrant or
other process of a court and is of the opinion that there is
reasonable
probability that the inmate can be released without detriment to
the com-
munity or to the inmate; or (2) the secretary of corrections has
reported
to the board in writing that the inmate has satisfactorily
completed the
programs required by any agreement entered under K.S.A. 75-5210a
and
amendments thereto, or any revision of such agreement, and the
board
believes that the inmate is able and willing to fulfill the
obligations of a
law abiding citizen and is of the opinion that there is reasonable
proba-
bility that the inmate can be released without detriment to the
community
or to the inmate. Parole shall not be granted as an award of
clemency and
shall not be considered a reduction of sentence or a pardon.
(h) The Kansas parole board shall hold a
parole hearing at least the
month prior to the month an inmate will be eligible for parole
under
subsections (a), (b) and (c). At least the month preceding the
parole hear-
ing, the county or district attorney of the county where the inmate
was
convicted shall give written notice of the time and place of the
public
comment sessions for the inmate to any victim of the inmate's crime
who
is alive and whose address is known to the county or district
attorney or,
if the victim is deceased, to the victim's family if the family's
address is
known to the county or district attorney. Except as otherwise
provided,
failure to notify pursuant to this section shall not be a reason to
postpone
a parole hearing. In the case of any inmate convicted of a class A
felony
the secretary of corrections shall give written notice of the time
and place
of the public comment session for such inmate at least one month
pre-
ceding the public comment session to any victim of such inmate's
crime
or the victim's family pursuant to K.S.A. 74-7338 and
amendments
thereto. If notification is not given to such victim or such
victim's family
in the case of any inmate convicted of a class A felony, the board
shall
postpone a decision on parole of the inmate to a time at least 30
days
after notification is given as provided in this section. Nothing in
this sec-
tion shall create a cause of action against the state or an
employee of the
state acting within the scope of the employee's employment as a
result
of the failure to notify pursuant to this section. If granted
parole, the
inmate may be released on parole on the date specified by the
board, but
not earlier than the date the inmate is eligible for parole under
subsec-
tions (a), (b) and (c). At each parole hearing and, if parole is
not granted,
at such intervals thereafter as it determines appropriate, the
Kansas parole
board shall consider: (1) Whether the inmate has satisfactorily
completed
the programs required by any agreement entered under K.S.A.
75-5210a
and amendments thereto, or any revision of such agreement; and (2)
all
pertinent information regarding such inmate, including, but not
limited
to, the circumstances of the offense of the inmate; the presentence
report;
the previous social history and criminal record of the inmate; the
conduct,
employment, and attitude of the inmate in prison; the reports of
such
physical and mental examinations as have been made; comments of
the
victim and the victim's family including in person comments,
contempo-
raneous comments and prerecorded comments made by any
technological
means; comments of the public; official comments; and
capacity of state
correctional institutions.
(i) In those cases involving inmates
sentenced for a crime committed
after July 1, 1993, the parole board will review the inmates
proposed
release plan. The board may schedule a hearing if they desire. The
board
may impose any condition they deem necessary to insure public
safety,
aid in the reintegration of the inmate into the community, or items
not
completed under the agreement entered into under K.S.A. 75-5210a
and
amendments thereto. The board may not advance or delay an
inmate's
release date. Every inmate while on postrelease supervision shall
remain
in the legal custody of the secretary of corrections and is subject
to the
orders of the secretary.
(j) Before ordering the parole of any
inmate, the Kansas parole board
shall have the inmate appear before either in person or via a video
con-
ferencing format and shall interview the inmate unless impractical
be-
cause of the inmate's physical or mental condition or absence from
the
institution. Every inmate while on parole shall remain in the legal
custody
of the secretary of corrections and is subject to the orders of the
secretary.
Whenever the Kansas parole board formally considers placing an
inmate
on parole and no agreement has been entered into with the inmate
under
K.S.A. 75-5210a and amendments thereto, the board shall notify the
in-
mate in writing of the reasons for not granting parole. If an
agreement
has been entered under K.S.A. 75-5210a and amendments thereto
and
the inmate has not satisfactorily completed the programs specified
in the
agreement, or any revision of such agreement, the board shall
notify the
inmate in writing of the specific programs the inmate must
satisfactorily
complete before parole will be granted. If parole is not granted
only
because of a failure to satisfactorily complete such programs, the
board
shall grant parole upon the secretary's certification that the
inmate has
successfully completed such programs. If an agreement has been
entered
under K.S.A. 75-5210a and amendments thereto and the secretary
of
corrections has reported to the board in writing that the inmate
has sat-
isfactorily completed the programs required by such agreement, or
any
revision thereof, the board shall not require further program
participa-
tion. However, if the board determines that other pertinent
information
regarding the inmate warrants the inmate's not being released on
parole,
the board shall state in writing the reasons for not granting the
parole. If
parole is denied for an inmate sentenced for a crime other than a
class A
or class B felony or an off-grid felony, the board shall hold
another parole
hearing for the inmate not later than one year after the denial
unless the
parole board finds that it is not reasonable to expect that parole
would
be granted at a hearing if held in the next three years or during
the interim
period of a deferral. In such case, the parole board may defer
subsequent
parole hearings for up to three years but any such deferral by the
board
shall require the board to state the basis for its findings. If
parole is denied
for an inmate sentenced for a class A or class B felony or an
off-grid
felony, the board shall hold another parole hearing for the inmate
not
later than three years after the denial unless the parole board
finds that
it is not reasonable to expect that parole would be granted at a
hearing if
held in the next 10 years or during the interim period of a
deferral. In
such case, the parole board may defer subsequent parole hearings
for up
to 10 years but any such deferral shall require the board to state
the basis
for its findings.
(k) Parolees and persons on postrelease
supervision shall be assigned,
upon release, to the appropriate level of supervision pursuant to
the cri-
teria established by the secretary of corrections.
(l) The Kansas parole board shall adopt
rules and regulations in ac-
cordance with K.S.A. 77-415 et seq., and amendments thereto,
not in-
consistent with the law and as it may deem proper or necessary,
with
respect to the conduct of parole hearings, postrelease supervision
reviews,
revocation hearings, orders of restitution, reimbursement of
expenditures
by the state board of indigents' defense services and other
conditions to
be imposed upon parolees or releasees. Whenever an order for parole
or
postrelease supervision is issued it shall recite the conditions
thereof.
(m) Whenever the Kansas parole board
orders the parole of an in-
mate or establishes conditions for an inmate placed on postrelease
su-
pervision, the board:
(1) Unless it finds compelling
circumstances which would render a
plan of payment unworkable, shall order as a condition of parole or
post-
release supervision that the parolee or the person on postrelease
super-
vision pay any transportation expenses resulting from returning the
pa-
rolee or the person on postrelease supervision to this state to
answer
criminal charges or a warrant for a violation of a condition of
probation,
assignment to a community correctional services program, parole,
con-
ditional release or postrelease supervision;
(2) to the extent practicable, shall
order as a condition of parole or
postrelease supervision that the parolee or the person on
postrelease su-
pervision make progress towards or successfully complete the
equivalent
of a secondary education if the inmate has not previously completed
such
educational equivalent and is capable of doing so;
(3) may order that the parolee or person
on postrelease supervision
perform community or public service work for local governmental
agen-
cies, private corporations organized not-for-profit or charitable
or social
service organizations performing services for the community;
(4) may order the parolee or person on
postrelease supervision to pay
the administrative fee imposed pursuant to K.S.A. 2000 Supp.
22-4529,
and amendments thereto, unless the board finds compelling
circum-
stances which would render payment unworkable; and
(5) unless it finds compelling
circumstances which would render a
plan of payment unworkable, shall order that the parolee or person
on
postrelease supervision reimburse the state for all or part of the
expend-
itures by the state board of indigents' defense services to provide
counsel
and other defense services to the person. In determining the amount
and
method of payment of such sum, the parole board shall take account
of
the financial resources of the person and the nature of the burden
that
the payment of such sum will impose. Such amount shall not exceed
the
amount claimed by appointed counsel on the payment voucher for
indi-
gents' defense services or the amount prescribed by the board of
indi-
gents' defense services reimbursement tables as provided in K.S.A.
22-
4522 and amendments thereto, whichever is less, minus any
previous
payments for such services.
(n) If the court which sentenced an
inmate specified at the time of
sentencing the amount and the recipient of any restitution ordered
as a
condition of parole or postrelease supervision, the Kansas parole
board
shall order as a condition of parole or postrelease supervision
that the
inmate pay restitution in the amount and manner provided in the
journal
entry unless the board finds compelling circumstances which would
ren-
der a plan of restitution unworkable.
(o) Whenever the Kansas parole board
grants the parole of an inmate,
the board, within 10 days of the date of the decision to grant
parole, shall
give written notice of the decision to the county or district
attorney of the
county where the inmate was sentenced.
(p) When an inmate is to be released on
postrelease supervision, the
secretary, within 30 days prior to release, shall provide the
county or
district attorney of the county where the inmate was sentenced
written
notice of the release date.
(q) Inmates shall be released on
postrelease supervision upon the
termination of the prison portion of their sentence. Time served
while
on postrelease supervision will vest.
(r) An inmate who is allocated regular
good time credits as provided
in K.S.A. 22-3725 and amendments thereto may receive meritorious
good
time credits in increments of not more than 90 days per meritorious
act.
These credits may be awarded by the secretary of corrections when
an
inmate has acted in a heroic or outstanding manner in coming to
the
assistance of another person in a life threatening situation,
preventing
injury or death to a person, preventing the destruction of property
or
taking actions which result in a financial savings to the
state.
(s) The provisions of subsections
(d)(1)(A), (d)(1)(B), (d)(1)(C) and
(d)(1)(E) shall be applied retroactively as provided in subsection
(t).
(t) For offenders sentenced prior to the
effective date of this act who
are eligible for modification of their postrelease supervision
obligation,
the department of corrections shall modify the period of
postrelease su-
pervision as provided for by this section for offenders convicted
of severity
level 9 and 10 crimes on the sentencing guidelines grid for
nondrug
crimes and severity level 4 crimes on the sentencing guidelines
grid for
drug crimes on or before September 1, 2000; for offenders convicted
of
severity level 7 and 8 crimes on the sentencing guidelines grid for
nondrug
crimes on or before November 1, 2000; and for offenders convicted
of
severity level 5 and 6 crimes on the sentencing guidelines grid for
nondrug
crimes and severity level 3 crimes on the sentencing guidelines
grid for
drug crimes on or before January 1, 2001.
Sec. 16. K.S.A. 2000 Supp. 65-1,107
is hereby amended to read as
follows: 65-1,107. The secretary of health and environment may
adopt
rules and regulations establishing:
(a) The procedures, testing
protocols and qualifications of authorized
personnel, instruments and methods used in laboratories performing
tests
for the presence of controlled substances included in schedule I or
II of
the uniform controlled substances act or metabolites thereof;
(b) the procedures, testing
protocols, qualifications of personnel and
standards of performance in the testing of human breath for law
enforce-
ment purposes, including procedures for the periodic inspection of
ap-
paratus, equipment and devices, other than preliminary screening
de-
vices, approved by the secretary of health and environment for the
testing
of human breath for law enforcement purposes;
(c) the requirements for the training,
certification and periodic test-
ing of persons who operate apparatus, equipment or devices, other
than
preliminary screening devices, for the testing of human breath for
law
enforcement purposes;
(d) criteria for preliminary screening
devices for testing of breath for
law enforcement purposes, based on health and performance
considera-
tions; and
(e) a list of preliminary screening
devices which are approved for
testing of breath for law enforcement purposes and which law
enforce-
ment agencies may purchase and train officers to use as aids in
deter-
mining probable cause to arrest and grounds for requiring testing
pur-
suant to K.S.A. 8-1001 and amendments thereto.
Sec. 17. K.S.A. 2000 Supp. 21-4711
is hereby amended to read as
follows: 21-4711. In addition to the provisions of K.S.A. 21-4710
and
amendments thereto, the following shall apply in determining an
of-
fender's criminal history classification as contained in the
presumptive
sentencing guidelines grid for nondrug crimes and the presumptive
sen-
tencing guidelines grid for drug crimes:
(a) Every three prior adult convictions
or juvenile adjudications of
class A and class B person misdemeanors in the offender's criminal
his-
tory, or any combination thereof, shall be rated as one adult
conviction
or one juvenile adjudication of a person felony for criminal
history pur-
poses. Every three prior adult convictions or juvenile
adjudications of
assault as defined in K.S.A. 21-3408 and amendments thereto
occurring
within a period commencing three years prior to the date of
conviction
for the current crime of conviction shall be rated as one adult
conviction
or one juvenile adjudication of a person felony for criminal
history pur-
poses.
(b) A conviction of subsection (a)(1) of
K.S.A. 21-4204 and amend-
ments thereto, criminal possession of firearms by a person who is
both
addicted to and an unlawful user of a controlled substance,
subsection
(a)(4) of K.S.A. 21-4204 and amendments thereto, possession of a
firearm
on school grounds or K.S.A. 21-4218 and amendments thereto,
possession
of a firearm on the grounds or in the state capitol building, will
be scored
as a select class B nonperson misdemeanor conviction or
adjudication and
shall not be scored as a person misdemeanor for criminal history
pur-
poses.
(c) (1) If the current crime of
conviction was committed before July
1, 1996, and is for subsection (b) of K.S.A. 21-3404, involuntary
man-
slaughter in the commission of K.S.A. 8-1567 and amendments
thereto
driving under the influence, then, each prior adult conviction or
juvenile
adjudication for K.S.A. 8-1567 and amendments thereto shall count
as
one person felony for criminal history purposes.
(2) If the current crime of conviction
was committed on or after July
1, 1996, and is for involuntary manslaughter while driving under
the in-
fluence of alcohol and drugs, each prior adult conviction,
diversion in lieu
of criminal prosecution or juvenile adjudication for: (A) An
act described
in K.S.A. 8-1567 and amendments thereto; or (B) a violation of a
law of
another state or an ordinance of any city, or resolution of any
county,
which prohibits the act described in K.S.A. 8-1567 and
amendments
thereto shall count as one person felony for criminal
history purposes.
(d) Prior burglary adult convictions and
juvenile adjudications will be
scored for criminal history purposes as follows:
(1) As a prior person felony if the prior
conviction or adjudication
was classified as a burglary as described in subsection (a) of
K.S.A. 21-
3715 and amendments thereto.
(2) As a prior nonperson felony if the
prior conviction or adjudication
was classified as a burglary as described in subsection (b) or (c)
of K.S.A.
21-3715 and amendments thereto.
The facts required to classify prior burglary
adult convictions and ju-
venile adjudications must be established by the state by a
preponderance
of the evidence.
(e) Out-of-state convictions and juvenile
adjudications will be used in
classifying the offender's criminal history. An out-of-state crime
will be
classified as either a felony or a misdemeanor according to the
convicting
jurisdiction. If a crime is a felony in another state, it will be
counted as a
felony in Kansas. The state of Kansas shall classify the crime as
person or
nonperson. In designating a crime as person or nonperson
comparable
offenses shall be referred to. If the state of Kansas does not have
a com-
parable offense, the out-of-state conviction shall be classified as
a non-
person crime. Convictions or adjudications occurring within the
federal
system, other state systems, the District of Columbia, foreign,
tribal or
military courts are considered out-of-state convictions or
adjudications.
The facts required to classify out-of-state adult convictions and
juvenile
adjudications must be established by the state by a preponderance
of the
evidence.
(f) Except as provided in subsections
(4), (5) and (6) of K.S.A. 21-
4710 and amendments thereto, juvenile adjudications will be applied
in
the same manner as adult convictions. Out-of-state juvenile
adjudications
will be treated as juvenile adjudications in Kansas.
(g) A prior felony conviction of an
attempt, a conspiracy or a solici-
tation as provided in K.S.A. 21-3301, 21-3302 or 21-3303 and
amend-
ments thereto, to commit a crime shall be treated as a person or
non-
person crime in accordance with the designation assigned to the
underlying crime.
(h) Drug crimes are designated as
nonperson crimes for criminal his-
tory scoring.
Sec. 18. K.S.A. 2000 Supp. 74-7336
is hereby amended to read as
follows: 74-7336. (a) Of the remittances of fines, penalties and
forfeitures
received from clerks of the district court, at least monthly, the
state trea-
surer shall credit 22% 19.81% to the crime
victims compensation fund
and 4%, 3.6% to the crime victims
assistance fund, 4.98% to the com-
munity alcoholism and intoxication programs fund and 4.98% to
the de-
partment of corrections alcohol and drug abuse treatment
fund. The re-
mainder of the remittances shall be credited to the state general
fund.
(b) The county treasurer shall deposit
grant moneys as provided in
subsection (a), from the crime victims assistance fund, to the
credit of a
special fund created for use by the county or district attorney in
estab-
lishing and maintaining programs to aid witnesses and victims of
crime.
Sec. 19. K.S.A. 8-2,145 and 41-727 and K.S.A. 2000
Supp. 8-241, as
amended by section 31 of 2001 Senate Bill No. 15, 8-255, as
amended
[SGMLhdnf]200[cm
by section 32 of 2001 Senate Bill No. 15, 8-262, as amended by
section
4 of 2001 Senate Bill No. 56, 8-1001, 8-1002, 8-1008, as amended
by
section 35 of 2001 Senate Bill No. 15, 8-1014, 8-1015, 8-1016,
8-1567, 8-
1567a, 21-4711, 22-3717, 22-3717b, 65-1,107 and 74-7336 are
hereby
repealed.
Sec. 20. This act shall take effect
and be in force from and after its
publication in the statute book.
Approved May 22, 2001.
__________