Session Law

Identifying Information:L. 2003 ch. 100
Other Identifying Information:2003 Senate Bill 33
Tax Type:Vehicles
Brief Description:(Amends Chapter 24)An Act regulating traffic; concerning driving under the influence of alcohol or drugs; con- cerning certain speed limits; amending K.S.A. 8-1558 and 8-1723 and K.S.A. 2002 Supp. 8-1567 and repealing the existing sections; also repealing K.S.A. 8-1723, as amended by section 1 of 2003 House Bill No. 2221.
Keywords:


Body:

CHAPTER 100

SENATE BILL No. 33

(Amends Chapter 24)


An Act regulating traffic; concerning driving under the influence of alcohol or drugs; con-

cerning certain speed limits; amending K.S.A. 8-1558 and 8-1723 and K.S.A. 2002 Supp.

8-1567 and repealing the existing sections; also repealing K.S.A. 8-1723, as amended by


section 1 of 2003 House Bill No. 2221.


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

Section 1. K.S.A. 2002 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 $500 nor more than $1,000. The person convicted must serve at

least 48 consecutive hours' imprisonment or 100 hours of public service

either before or as a condition of any grant of probation or suspension,

reduction of sentence or parole. In addition, the court shall enter an order

which requires that the person enroll in and successfully complete an

alcohol and drug safety action education program or treatment program

as provided in K.S.A. 8-1008, and amendments thereto, or both the ed-

ucation and treatment programs.

(e) On a second conviction of a violation of this section, a person shall

be guilty of a class A, nonperson misdemeanor and sentenced to not less

than 90 days nor more than one year's imprisonment and fined not less

than $1,000 nor more than $1,500. The person convicted must serve at

least five consecutive days' imprisonment before the person is granted

probation, suspension or reduction of sentence or parole or is otherwise

released. The five days' imprisonment mandated by this subsection may

be served in a work release program only after such person has served

48 consecutive hours' imprisonment, provided such work release program

requires such person to return to confinement at the end of each day in

the work release program. The court may place the person convicted

under a house arrest program pursuant to K.S.A. 21-4603b, and amend-

ments thereto, to serve the remainder of the minimum sentence only

after such person has served 48 consecutive hours' imprisonment. As a

condition of any grant of probation, suspension of sentence or parole or

of any other release, the person shall be required to enter into and com-

plete a treatment program for alcohol and drug abuse as provided in

K.S.A. 8-1008, and amendments thereto.

(f) On the third conviction of a violation of this section, a person shall

be guilty of a nonperson felony and sentenced to not less than 90 days

nor more than one year's imprisonment and fined not less than $1,500

nor more than $2,500. The person convicted shall not be eligible for

release on probation, suspension or reduction of sentence or parole until

the person has served at least 90 days' imprisonment. The court may also

require as a condition of parole that such person enter into and complete

a treatment program for alcohol and drug abuse as provided by K.S.A. 8-

1008, and amendments thereto. The 90 days' imprisonment mandated by

this subsection may be served in a work release program only after such

person has served 48 consecutive hours' imprisonment, provided such

work release program requires such person to return to confinement at

the end of each day in the work release program. The court may place

the person convicted under a house arrest program pursuant to K.S.A.

21-4603b, and amendments thereto, to serve the remainder of the min-

imum sentence only after such person has served 48 consecutive hours'

imprisonment.

(g) On the fourth or subsequent conviction of a violation of this sec-

tion, a person shall be guilty of a nonperson felony and sentenced to not

less than 90 days nor more than one year's imprisonment and fined

$2,500. The person convicted shall not be eligible for release on proba-

tion, suspension or reduction of sentence or parole until the person has

served at least 90 days' imprisonment. The 90 days' imprisonment man-

dated by this subsection may be served in a work release program only

after such person has served 72 consecutive hours' imprisonment, pro-

vided such work release program requires such person to return to con-

finement at the end of each day in the work release program. At the time

of the filing of the judgment form or journal entry as required by K.S.A.

21-4620 or 22-3426, and amendments thereto, the court shall cause a

certified copy to be sent to the officer having the offender in charge. The

law enforcement agency maintaining custody and control of a defendant

for imprisonment shall cause a certified copy of the judgment form or

journal entry to be sent to the secretary of corrections within three busi-

ness days of receipt of the judgment form or journal entry from the court

and notify the secretary of corrections when the term of imprisonment

expires and upon expiration of the term of imprisonment shall deliver the

defendant to a location designated by the secretary. After the term of

imprisonment imposed by the court, the person shall be placed in the

custody of the secretary of corrections for a mandatory one-year period

of postrelease supervision, which such period of postrelease supervision

shall not be reduced. During such postrelease supervision, the person

shall be required to participate in an inpatient or outpatient program for

alcohol and drug abuse, including, but not limited to, an approved after-

care plan or mental health counseling, as determined by the secretary

and satisfy conditions imposed by the Kansas parole board as provided

by K.S.A. 22-3717, and amendments thereto. Any violation of the con-

ditions of such postrelease supervision may subject such person to revo-

cation of postrelease supervision pursuant to K.S.A. 75-5217 et seq., and

amendments thereto and as otherwise provided by law.

(h) Any person convicted of violating this section or an ordinance

which prohibits the acts that this section prohibits who had a child under

the age of 14 years in the vehicle at the time of the offense shall have

such person's punishment enhanced by one month of imprisonment. This

imprisonment must be served consecutively to any other penalty imposed

for a violation of this section or an ordinance which prohibits the acts that

this section prohibits. During the service of the one month enhanced

penalty, the judge may order the person on house arrest, work release or

other conditional release.

(i) The court may establish the terms and time for payment of any

fines, fees, assessments and costs imposed pursuant to this section. Any

assessment and costs shall be required to be paid not later than 90 days

after imposed, and any remainder of the fine shall be paid prior to the

final release of the defendant by the court.

(j) In lieu of payment of a fine imposed pursuant to this section, the

court may order that the person perform community service specified by

the court. The person shall receive a credit on the fine imposed in an

amount equal to $5 for each full hour spent by the person in the specified

community service. The community service ordered by the court shall be

required to be performed not later than one year after the fine is imposed

or by an earlier date specified by the court. If by the required date the

person performs an insufficient amount of community service to reduce

to zero the portion of the fine required to be paid by the person, the

remaining balance of the fine shall become due on that date.

(k) (1) Except as provided in paragraph (5), in addition to any other

penalty which may be imposed upon a person convicted of a violation of

this section, the court may order that the convicted person's motor vehicle

or vehicles be impounded or immobilized for a period not to exceed one

year and that the convicted person pay all towing, impoundment and

storage fees or other immobilization costs.

(2) The court shall not order the impoundment or immobilization of

a motor vehicle driven by a person convicted of a violation of this section

if the motor vehicle had been stolen or converted at the time it was driven

in violation of this section.

(3) Prior to ordering the impoundment or immobilization of a motor

vehicle or vehicles owned by a person convicted of a violation of this

section, the court shall consider, but not be limited to, the following:

(A) Whether the impoundment or immobilization of the motor vehicle

would result in the loss of employment by the convicted person or a mem-

ber of such person's family; and

(B) whether the ability of the convicted person or a member of such

person's family to attend school or obtain medical care would be impaired.

(4) Any personal property in a vehicle impounded or immobilized

pursuant to this subsection may be retrieved prior to or during the period

of such impoundment or immobilization.

(5) As used in this subsection, the convicted person's motor vehicle

or vehicles shall include any vehicle leased by such person. If the lease on

the convicted person's motor vehicle subject to impoundment or immo-

bilization expires in less than one year from the date of the impoundment

or immobilization, the time of impoundment or immobilization of such

vehicle shall be the amount of time remaining on the lease.

(k) (l) 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.

(l) (m) For the purpose of determining whether a conviction is a first,

second, third, fourth or subsequent conviction in sentencing under this

section:

(1) ``Conviction'' includes being convicted of a violation of this section

or entering into a diversion agreement in lieu of further criminal pro-

ceedings on a complaint alleging a violation of this section;

(2) ``conviction'' includes being convicted of a violation of a law of

another state or an ordinance of any city, or resolution of any county,

which prohibits the acts that this section prohibits or entering into a di-

version agreement in lieu of further criminal proceedings in a case alleg-

ing a violation of such law, ordinance or resolution;

(3) any convictions occurring during a person's lifetime shall be taken

into account when determining the sentence to be imposed for a first,

second, third, fourth or subsequent offender;

(4) it is irrelevant whether an offense occurred before or after con-

viction for a previous offense; and

(5) a person may enter into a diversion agreement in lieu of further

criminal proceedings for a violation of this section, and amendments

thereto, or an ordinance which prohibits the acts of this section, and

amendments thereto, only once during the person's lifetime.

(m) (n) Upon conviction of a person of a violation of this section or

a violation of a city ordinance or county resolution prohibiting the acts

prohibited by this section, the division, upon receiving a report of con-

viction, shall suspend, restrict or suspend and restrict the person's driving

privileges as provided by K.S.A. 8-1014, and amendments thereto.

(n) (o) (1) Nothing contained in this section shall be construed as

preventing any city from enacting ordinances, or any county from adopt-

ing 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. Except as specifically provided by this subsec-

tion, the minimum penalty prescribed by any such ordinance or resolution

shall not be less than the minimum penalty prescribed by this act for the

same violation, and the maximum penalty in any such ordinance or res-

olution 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 suf-

fered loss due to the violation for which the person was convicted. Except

as provided in paragraph (5), any such ordinance or resolution may re-

quire or authorize the court to order that the convicted person's motor

vehicle or vehicles be impounded or immobilized for a period not to exceed

one year and that the convicted person pay all towing, impoundment and

storage fees or other immobilization costs.

(2) The court shall not order the impoundment or immobilization of

a motor vehicle driven by a person convicted of a violation of this section

if the motor vehicle had been stolen or converted at the time it was driven

in violation of this section.

(3) Prior to ordering the impoundment or immobilization of a motor

vehicle or vehicles owned by a person convicted of a violation of this

section, the court shall consider, but not be limited to, the following:

(A) Whether the impoundment or immobilization of the motor vehicle

would result in the loss of employment by the convicted person or a mem-

ber of such person's family; and

(B) whether the ability of the convicted person or a member of such

person's family to attend school or obtain medical care would be impaired.

(4) Any personal property in a vehicle impounded or immobilized

pursuant to this subsection may be retrieved prior to or during the period

of such impoundment or immobilization.

(5) As used in this subsection, the convicted person's motor vehicle

or vehicles shall include any vehicle leased by such person. If the lease on

the convicted person's motor vehicle subject to impoundment or immo-

bilization expires in less than one year from the date of the impoundment

or immobilization, the time of impoundment or immobilization of such

vehicle shall be the amount of time remaining on the lease.

(o) (p) 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.

(p) (q) The alternatives set out in subsections (a)(1), (a)(2) and (a)(3)

may be pleaded in the alternative, and the state, city or county, but shall

not be required to, may elect one or two of the three prior to submission

of the case to the fact finder.

(q) (r) Upon a fourth or subsequent conviction, the judge of any court

in which any person is convicted of violating this section, may revoke the

person's license plate or temporary registration certificate of the motor

vehicle driven during the violation of this section for a period of one year.

Upon revoking any license plate or temporary registration certificate pur-

suant to this subsection, the court shall require that such license plate or

temporary registration certificate be surrendered to the court.

(r) (s) For the purpose of this section: (1) ``Alcohol concentration''

means the number of grams of alcohol per 100 milliliters of blood or per

210 liters of breath.

(2) ``Imprisonment'' shall include any restrained environment in

which the court and law enforcement agency intend to retain custody and

control of a defendant and such environment has been approved by the

board of county commissioners or the governing body of a city.

(3) ``Drug'' includes toxic vapors as such term is defined in K.S.A. 65-

4165, and amendments thereto.

(s) (t) 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.

New Sec. 2. If the owner of a motor vehicle which has been im-

pounded pursuant to K.S.A. 8-1567 or section 3, and amendments

thereto, refuses to pay any towing, impoundment, storage or other fees

relating to the impoundment or immobilization of such vehicle or fails to

take possession of such vehicle within 30 days following the date of the

expiration of the impoundment period, such vehicle shall be deemed

abandoned and the vehicle may be disposed of by the person having

possession of such vehicle. If the person having possession of such vehicle

is a public agency, disposition of such vehicle shall be in compliance with

the procedures for notice and public auction provided by paragraph (2)

of subsection (a) of K.S.A. 8-1102, and amendments thereto. If the person

having possession of such vehicle is not a public agency, disposition of

such vehicle shall be in compliance with K.S.A. 8-1103 through 8-1108,

and amendments thereto.

New Sec. 3. (a) It shall be unlawful for the owner of a motor vehicle

to allow a person to drive such vehicle when such owner knows or rea-

sonably should have known such person was driving in violation of K.S.A.

8-1014, and amendments thereto.

(b) Violation of this section is an unclassified misdemeanor punisha-

ble by a fine of not less than $500 nor more than $1,000. In addition to

the fine imposed upon a person convicted of a violation of this section,

the court may order that the convicted person's motor vehicle or vehicles

be impounded or immobilized for a period not to exceed one year and

that the convicted person pay all towing, impoundment and storage fees

or other immobilization costs. Prior to ordering the impoundment or im-

mobilization of any such motor vehicle, the court shall consider the factors

established in subsection (k)(3) of K.S.A. 8-1567, and amendments

thereto. Any personal property in a vehicle impounded or immobilized

pursuant to this section may be retrieved prior to or during the period of

such impoundment or immobilization.

Sec. 4. K.S.A. 8-1558 is hereby amended to read as follows: 8-1558.

(a) Except as provided in subsections (b) and (e) subsection (b) and except

when a special hazard exists that requires lower speed for compliance

with K.S.A. 8-1557, and amendments thereto, the limits specified in this

subsection or established as authorized by law shall be maximum lawful

speeds, and no person shall operate a vehicle at a speed in excess of such

maximum limits:

(1) In any urban district, 30 miles per hour;

(2) on any separated multilane highway, as designated and posted by

the secretary of transportation, 70 miles per hour;

(3) on any county or township highway, 55 miles per hour; and

(4) on all other highways, 65 miles per hour.

(b) No person shall drive a school bus to or from school, or inter-

school or intraschool functions or activities, at a speed greater than 45

miles per hour on any roadway having a dirt, sand or gravel surface, and

in no event shall a school bus be driven to and from school, or functions

or activities, in excess of 55 miles per hour, notwithstanding any maximum

speed limit in excess thereof in excess of the maximum speed limits pro-

vided in subsection (a), except that the board of education of any school

district may establish by board policy lower maximum speed limits for

the operation of such district's school buses. The provisions of this sub-

section relating to school buses shall apply to buses used for the trans-

portation of students enrolled in community colleges or area vocational

schools, when such buses are transporting students to or from school, or

functions or activities.

(c) The secretary of transportation shall not be liable for any damage

or loss, asserted to have been sustained between the effective date of this

act and July 1, 1996, based on a claim of failure to post any speed limit,

or to erect signs or place markings in relation to any speed limit estab-

lished by this act, on any highway under the secretary's jurisdiction.

(d) (c) The maximum speed limits in this section may be altered as

authorized in K.S.A. 8-1559 and 8-1560, and amendments thereto.

(e) The speed limits established in paragraphs (2) and (4) of subsec-

tion (a) shall be effective 15 days following the effective date of this act.

During such interim fifteen-day period, the maximum speed limit under

paragraph (2) of subsection (a) shall be 65 miles per hour and the maxi-

mum speed limit under paragraph (4) of subsection (a) shall be 55 miles

per hour.

Sec. 5. K.S.A. 8-1723 is hereby amended to read as follows: 8-1723.

(a) Any motor vehicle may be equipped with not more than two side cowl

or fender lamps which shall emit an amber or white light without glare.

(b) Any motor vehicle may be equipped with not more than one run-

ning-board courtesy lamp on each side which shall emit a white or amber

light without glare.

(c) Any motor vehicle may be equipped with one or more back-up

lamps either separately or in combination with other lamps, but any such

back-up lamp or lamps shall not be lighted when the motor vehicle is in

forward motion.

(d) Any vehicle 80 inches or more in overall width, if not otherwise

required by K.S.A. 8-1710, and amendments thereto, may be equipped

with not more than three identification lamps showing to the front which

shall emit an amber light without glare and not more than three identi-

fication lamps showing to the rear which shall emit a red light without

glare. Such lamps shall be mounted as specified in subsection (g) of K.S.A.

8-1710, and amendments thereto.

(e) Any vehicle may be equipped with one or more side marker lamps

and any such lamp may be flashed in conjunction with turn or vehicular

hazard warning signals. Side marker lamps located toward the front of a

vehicle shall be amber and side marker lamps located toward the rear

shall be red.

(f) Any motor vehicle may be equipped with neon ground effect light-

ing, except that such lighting shall not flash, be any shade of red nor shall

any portion of the neon tubes be visible. ``Neon ground effect lighting''

means neon tubes placed underneath the motor vehicle for the purpose of

illuminating the ground below the motor vehicle creating a halo light

effect.

Sec. 6. K.S.A. 8-1558, 8-1723 and 8-1723, as amended by section 1

of 2003 House Bill No. 2221, and K.S.A. 2002 Supp. 8-1567 are hereby

repealed.

Sec. 7. This act shall take effect and be in force from and after its

publication in the statute book.

Approved April 21, 2002.


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Date Composed: 10/29/2003 Date Modified: 10/29/2003