Session Law

Identifying Information:L. 2001 ch. 200
Other Identifying Information:2001 Senate Bill 67
Tax Type:Vehicles
Brief Description: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.
Keywords:


Body:

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, 2000.


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Date Composed: 09/25/2001 Date Modified: 09/25/2001