CHAPTER 166 HOUSE Substitute for SENATE BILL No. 208 (Amends Chapter 50) An  Act concerning crimes, punishment and criminal procedure; relating to toxic vapors;
amending K.S.A. 8-1567, as amended by section 1 of 2002 Senate Bill No. 433, and
repealing the existing section.
Be it enacted by the Legislature of the State of Kansas:

      New Section  1. (a)  (1) Abusing toxic vapors is knowingly possessing,
buying, using, smelling or inhaling the fumes of toxic vapors with the
intent of causing a condition of euphoria, excitement, exhilaration, stu-
pefaction, or dulled senses of the nervous system.

      (2) This subsection shall not apply to the inhalation of anesthesia or
other substances for medical or dental purposes.

      (b) Abusing toxic vapors is a class B nonperson misdemeanor. In ad-
dition to any sentence or fine imposed, the court shall enter an order
which requires that the person enroll in and successfully complete 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 ed-
ucation and treatment programs.

      (c) For the purposes of this section, the term ``toxic vapors'' means
the following substances or products containing such substances:

      (1) Alcohols, including methyl, isopropyl, propyl or butyl;

      (2) Aliphatic acetates, including ethyl, methyl, propyl or methyl cel-
losolve acetate;

      (3) Acetone;

      (4) Benzene;

      (5) Carbon tetrachloride;

      (6) Cyclohexane;

      (7) Freons, including freon 11 and freon 12;

      (8) Hexane;

      (9) Methyl ethyl ketone;

      (10) Methyl isobutyl ketone;

      (11) Naptha;

      (12) Perchlorethylene;

      (13) Toluene;

      (14) Trichloroethane; or

      (15) Xylene.

      (d) In a prosecution for a violation of this section, evidence that a
container lists one or more of the substances described in subsection (c)
as one of its ingredients shall be prima facie evidence that the substance
in such container contains toxic vapors and emits the fumes thereof.

      Sec.  2. K.S.A. 8-1567, as amended by section 1 of 2002 Senate Bill
No. 433, 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 $500 nor more than $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 suspension,
reduction of sentence or parole. In addition, the court shall enter an order
which requires that the person enroll in and successfully complete 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 ed-
ucation 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 $1,000 nor more than $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
under 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
condition of any grant of probation, suspension of sentence or parole or
of any other release, the person shall be required to enter into and com-
plete a treatment program for alcohol and drug abuse as provided in
K.S.A. 8-1008, and amendments thereto.

      (f) On the third 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 imprisonment and fined not less than $1,500
nor more than $2,500. The person convicted shall not be eligible for
release on probation, suspension or reduction of sentence or parole until
the person has served at least 90 days' imprisonment. The court may also
require as a condition of parole that such person enter into and complete
a treatment program for alcohol and drug abuse as provided by K.S.A. 8-
1008, and amendments thereto. The 90 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 under a house arrest program pursuant to K.S.A.
21-4603b, and amendments thereto, to serve the remainder of the min-
imum sentence only after such person has served 48 consecutive hours'
imprisonment.

      (g) On the fourth or 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
$2,500. The person convicted shall not be eligible for release on proba-
tion, suspension or reduction of sentence or parole until the person has
served at least 90 days' imprisonment. The 90 days' imprisonment man-
dated by this subsection may be served in a work release program only
after such person has served 72 consecutive hours' imprisonment, pro-
vided such work release program requires such person to return to con-
finement at the end of each day in the work release program. At the time
of the filing of the judgment form or journal entry as required by K.S.A.
21-4620 or 22-3426, and amendments thereto, the court shall cause a
certified copy to be sent to the officer having the offender in charge. The
law enforcement agency maintaining custody and control of a defendant
for imprisonment shall cause a certified copy of the judgment form or
journal entry to be sent to the secretary of corrections within three busi-
ness days of receipt of the judgment form or journal entry from the court
and notify the secretary of corrections when the term of imprisonment
expires and upon expiration of the term of imprisonment shall deliver the
defendant to a location designated by the secretary. After the term of
imprisonment imposed by the court, the person shall be placed in the
custody of the secretary of corrections for 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 inpatient or outpatient program for
alcohol and drug abuse, including, but not limited to, an approved after-
care plan or mental health counseling, as determined by the secretary
and satisfy conditions imposed by the Kansas parole board as provided
by K.S.A. 22-3717, and amendments thereto. Any violation of the con-
ditions of such postrelease supervision may subject such person to revo-
cation 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
imprisonment 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.

      (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.

      (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.

      (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 di-
vision. 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.

      (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) any convictions occurring during a person's lifetime shall be taken
into account 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.

      (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.

      (n) Nothing contained in this section shall be construed as preventing
any city from enacting ordinances, or any county from adopting resolu-
tions, 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 prescribed by this
act for the same violation, and the maximum penalty in any such ordi-
nance 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.

      (o) No plea bargaining agreement shall be entered into nor shall any
judge approve a plea bargaining agreement entered into for the purpose
of permitting a person charged with a violation of this section, or a vio-
lation 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.

      (p) The alternatives set out in subsections (a)(1), (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.

      (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.

      (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.

      (3) ``Drug'' includes toxic vapors as such term is defined in section 1,
and amendments thereto.

      (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.  3. K.S.A. 8-1567, as amended by section 1 of 2002 Senate Bill
No. 433, is hereby repealed.
 Sec.  4. This act shall take effect and be in force from and after its
publication in the statute book.

Approved May 29, 2002.
__________