Session Law

Identifying Information:L. 2001 ch. 208
Other Identifying Information:2001 House Bill 2176
Tax Type:Other
Brief Description:An Act concerning crimes, punishment and criminal procedure; amending K.S.A. 21-3701, 21-4614, 22-3303 and 38-1611 and K.S.A. 2000 Supp. 21-2511, 21-3106, 21-3520, 21- 3764, 22-4902, 22-4904, 22-4905, 22-4906, 22-4907, 22-4908 and 22-4909 and repealing the existing sections.
Keywords:


Body:

CHAPTER 208

HOUSE BILL No. 2176


An Act concerning crimes, punishment and criminal procedure; amending K.S.A. 21-3701,

21-4614, 22-3303 and 38-1611 and K.S.A. 2000 Supp. 21-2511, 21-3106, 21-3520, 21-

3764, 22-4902, 22-4904, 22-4905, 22-4906, 22-4907, 22-4908 and 22-4909 and repealing the existing sections.




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

Section 1. K.S.A. 2000 Supp. 21-3520 is hereby amended to read as

follows: 21-3520. (a) Unlawful sexual relations is engaging in consensual

sexual intercourse, lewd fondling or touching, or sodomy with a person

who is not married to the offender if:

(1) The offender is an employee of the department of corrections or

the employee of a contractor who is under contract to provide services in

a correctional institution and the person with whom the offender is en-

gaging in consensual sexual intercourse, lewd fondling or touching, or

sodomy is a person 16 years of age or older who is an inmate; or

(2) the offender is a parole officer and the person with whom the

offender is engaging in consensual sexual intercourse, lewd fondling or

touching, or sodomy is a person 16 years of age or older who is an inmate

who has been released on parole or conditional release or postrelease

supervision under the direct supervision and control of the offender; or

(3) the offender is a law enforcement officer, an employee of a jail,

or the employee of a contractor who is under contract to provide services

in a jail and the person with whom the offender is engaging in consensual

sexual intercourse, lewd fondling or touching, or sodomy is a person 16

years of age or older who is confined by lawful custody to such jail; or

(4) the offender is a law enforcement officer, an employee of a ju-

venile detention facility or sanctions house, or the employee of a con-

tractor who is under contract to provide services in such facility or sanc-

tions house and the person with whom the offender is engaging in

consensual sexual intercourse, lewd fondling or touching, or sodomy is a

person 16 years of age or older who is confined by lawful custody to such

facility or sanctions house; or

(5) the offender is an employee of the juvenile justice authority or

the employee of a contractor who is under contract to provide services in

a juvenile correctional facility and the person with whom the offender is

engaging in consensual sexual intercourse, lewd fondling or touching, or

sodomy is a person 16 years of age or older who is confined by lawful

custody to such facility; or

(6) the offender is an employee of the juvenile justice authority or

the employee of a contractor who is under contract to provide direct

supervision and offender control services to the juvenile justice authority

and the person with whom the offender is engaging in consensual sexual

intercourse, lewd fondling or touching, or sodomy is 16 years of age or

older and (A) released on conditional release from a juvenile correctional

facility under the direct supervision and control of the offender or (B)

placed in the custody of the juvenile justice authority under the direct

supervision and control of the offender;

(7) the offender is an employee of the department of social and re-

habilitation services or the employee of a contractor who is under contract

to provide services in a social and rehabilitation services institution and

the person with whom the offender is engaging in consensual sexual in-

tercourse, not otherwise subject to subsection (a)(1)(C) of K.S.A. 21-3502,

and amendments thereto, lewd fondling or touching, or sodomy, not oth-

erwise subject to subsection (a)(3)(C) of K.S.A. 21-3506, and amendments

thereto, is a person 16 years of age or older who is a patient in such

institution.; or

(8) the offender is a teacher or a person in a position of authority and

the person with whom the offender is engaging in consensual sexual in-

tercourse, lewd fondling or touching or sodomy is 16 or 17 years of age

and a student enrolled at the school where the offender is employed. If

the offender is the parent of the student, the provisions of K.S.A. 21-3603,

and amendments thereto, shall apply, not this subsection.

(b) For purposes of this act:

(1) ``Correctional institution'' means the same as prescribed by K.S.A.

75-5202, and amendments thereto;

(2) ``inmate'' means the same as prescribed by K.S.A. 75-5202, and

amendments thereto;

(3) ``parole officer'' means the same as prescribed by K.S.A. 75-5202,

and amendments thereto;

(4) ``postrelease supervision'' means the same as prescribed in the

Kansas sentencing guidelines act in K.S.A. 21-4703, and amendments

thereto;

(5) ``juvenile detention facility'' means the same as prescribed by

K.S.A. 38-1602, and amendments thereto;

(6) ``juvenile correctional facility'' means the same as prescribed by

K.S.A. 38-1602, and amendments thereto;

(7) ``sanctions house'' means the same as prescribed by K.S.A. 38-

1602, and amendments thereto;

(8) ``institution'' means the same as prescribed by K.S.A. 76-12a01,

and amendments thereto.; and

(9) ``teacher'' means and includes teachers, supervisors, principals,

superintendents and any other professional employee in any public or

private school.

(c) Unlawful sexual relations is a severity level 10 person felony.

Sec. 2. K.S.A. 2000 Supp. 21-2511 is hereby amended to read as

follows: 21-2511. (a) Any person convicted as an adult or adjudicated as

a juvenile offender because of the commission of any offense which re-

quires such person to register as an offender pursuant to the Kansas

offender registration act, K.S.A. 22-4901 et seq., any off-grid felony, any

nondrug severity level 1 through 6 felony, or a violation of subsection

(a)(1) of K.S.A. 21-3505, 21-3508, 21-3602 or 21-3609, 21-3715, 21-4310,

subsections (e)(2), (e)(3) and (e)(4) of K.S.A. 65-4142 or K.S.A. 65-4159,

and amendments thereto, including an attempt, conspiracy or criminal

solicitation, as defined in K.S.A. 21-3301, 21-3302 or 21-3303 and amend-

ments thereto, of any such offenses provided in this subsection regardless

of the sentence imposed, shall be required to submit specimens of blood

and saliva to the Kansas bureau of investigation in accordance with the

provisions of this act, if such person is:

(1) Convicted as an adult or adjudicated as a juvenile offender be-

cause of the commission of a crime specified in subsection (a) on or after

the effective date of this act;

(2) ordered institutionalized as a result of being convicted as an adult

or adjudicated as a juvenile offender because of the commission of a crime

specified in subsection (a) on or after the effective date of this act; or

(3) convicted as an adult or adjudicated as a juvenile offender because

of the commission of a crime specified in this subsection before the ef-

fective date of this act and is presently confined as a result of such con-

viction or adjudication in any state correctional facility or county jail or is

presently serving a sentence under K.S.A. 21-4603, 22-3717 or 38-1663,

and amendments thereto.

(b) Notwithstanding any other provision of law, the Kansas bureau of

investigation is authorized to obtain fingerprints and other identifiers for

all persons, whether juveniles or adults, covered by this act.

(c) Any person required by paragraphs (a)(1) and (a)(2) to provide

specimens of blood and saliva shall be ordered by the court to have spec-

imens of blood and saliva collected within 10 days after sentencing or

adjudication:

(1) If placed directly on probation, that person must provide speci-

mens of blood and saliva, at a collection site designated by the Kansas

bureau of investigation. Failure to cooperate with the collection of the

specimens and any deliberate act by that person intended to impede,

delay or stop the collection of the specimens shall be punishable as con-

tempt of court and constitute grounds to revoke probation;

(2) if sentenced to the secretary of corrections, the specimens of

blood and saliva will be obtained immediately upon arrival at the Topeka

correctional facility; or

(3) if a juvenile offender is placed in the custody of the commissioner

of juvenile justice, in a youth residential facility or in a juvenile correc-

tional facility, the specimens of blood and saliva will be obtained imme-

diately upon arrival.

(d) Any person required by paragraph (a)(3) to provide specimens of

blood and saliva shall be required to provide such samples prior to final

discharge or conditional release at a collection site designated by the

Kansas bureau of investigation.

(e) The Kansas bureau of investigation shall provide all specimen vi-

als, mailing tubes, labels and instructions necessary for the collection of

blood and saliva samples. The collection of samples shall be performed

in a medically approved manner. No person authorized by this section to

withdraw blood and collect saliva, and no person assisting in the collection

of these samples shall be liable in any civil or criminal action when the

act is performed in a reasonable manner according to generally accepted

medical practices. The withdrawal of blood for purposes of this act 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 amendments thereto, or

a phlebotomist. The samples shall thereafter be forwarded to the Kansas

bureau of investigation for analysis and categorizing into genetic marker

groupings.

(f) The genetic marker groupings shall be maintained by the Kansas

bureau of investigation. The Kansas bureau of investigation shall establish,

implement and maintain a statewide automated personal identification

system capable of, but not limited to, classifying, matching and storing

analysis of DNA (deoxyribonucleic acid) and other biological molecules.

The genetic marker grouping analysis information and identification sys-

tem as established by this act shall be compatible with the procedures

specified by the federal bureau of investigation's combined DNA index

system (CODIS). The Kansas bureau of investigation may participate in

the CODIS program by sharing data and utilizing compatible test pro-

cedures, laboratory equipment, supplies and computer software.

(g) The genetic marker grouping analysis information obtained pur-

suant to this act shall be confidential and shall be released only to law

enforcement officers of the United States, of other states or territories,

of the insular possessions of the United States, or foreign countries duly

authorized to receive the same, to all law enforcement officers of the state

of Kansas and to all prosecutor's agencies.

(h) The Kansas bureau of investigation shall be the state central re-

pository for all genetic marker grouping analysis information obtained

pursuant to this act. The Kansas bureau of investigation may promulgate

rules and regulations for the form and manner of the collection of blood

and saliva samples and other procedures for the operation of this act. The

provisions of the Kansas administrative procedure act shall apply to all

actions taken under the rules and regulations so promulgated.

Sec. 3. K.S.A. 2000 Supp. 21-3106 is hereby amended to read as

follows: 21-3106. (1) A prosecution for murder may be commenced at

any time.

(2) Except as provided by subsection subsections (7) and (8) (9), a

prosecution for any of the following crimes must be commenced within

five years after its commission if the victim is less than 16 years of age:

(a) Indecent liberties with a child as defined in K.S.A. 21-3503 and

amendments thereto; (b) aggravated indecent liberties with a child as

defined in K.S.A. 21-3504 and amendments thereto; (c) enticement of a

child as defined in K.S.A. 21-3509 and amendments thereto; (d) indecent

solicitation of a child as defined in K.S.A. 21-3510 and amendments

thereto; (e) aggravated indecent solicitation of a child as defined in K.S.A.

21-3511 and amendments thereto; (f) sexual exploitation of a child as

defined in K.S.A. 21-3516 and amendments thereto; or (g) aggravated

incest as defined in K.S.A. 21-3603 and amendments thereto.

(3) Except as provided in subsection (8) (9), a prosecution for any

crime must be commenced within 10 years after its commission if the

victim is the Kansas public employees retirement system.

(4) Except as provided by subsection (8) subsections (7) and (9), a

prosecution for rape, as defined in K.S.A. 21-3502 and amendments

thereto, or aggravated criminal sodomy, as defined in K.S.A. 21-3506 and

amendments thereto, must be commenced within five years after its com-

mission.

(5) Except as provided in subsection (8) (9), a prosecution for any

crime found in the Kansas medicaid fraud control act must be com-

menced within five years after its commission.

(6) Except as provided by subsection (8) (9), a prosecution for the

crime of arson, as defined in K.S.A. 21-3718 and amendments thereto,

or aggravated arson, as defined in K.S.A. 21-3719 and amendments

thereto, must be commenced within five years after its commission.

(7) (a) Except as provided in subsection (9), a prosecution for any

offense provided in subsection (2) or a sexually violent offense as defined

in K.S.A. 22-3717, and amendments thereto, must be commenced within

the limitation of time provided by the law pertaining to such offense or

one year from the date on which the identity of the suspect is conclusively

established by DNA testing, whichever is later.

(b) For purposes of this section, ``DNA'' means deoxyribonucleic acid.

(8) Except as provided by subsection (8) (9), a prosecution for any

crime not governed by subsections (1), (2), (3), (4), (5) and, (6) and (7)

must be commenced within two years after it is committed.

(8) (9) The period within which a prosecution must be commenced

shall not include any period in which:

(a) The accused is absent from the state;

(b) the accused is concealed within the state so that process cannot

be served upon the accused;

(c) the fact of the crime is concealed;

(d) a prosecution is pending against the defendant for the same con-

duct, even if the indictment or information which commences the pros-

ecution is quashed or the proceedings thereon are set aside, or are re-

versed on appeal;

(e) an administrative agency is restrained by court order from inves-

tigating or otherwise proceeding on a matter before it as to any criminal

conduct defined as a violation of any of the provisions of article 41 of

chapter 25 and article 2 of chapter 46 of the Kansas Statutes Annotated

which may be discovered as a result thereof regardless of who obtains

the order of restraint; or

(f) whether or not the fact of the crime is concealed by the active act

or conduct of the accused, there is substantially competent evidence to

believe two or more of the following factors are present: (i) The victim

was a child under 15 years of age at the time of the crime; (ii) the victim

was of such age or intelligence that the victim was unable to determine

that the acts constituted a crime; (iii) the victim was prevented by a parent

or other legal authority from making known to law enforcement author-

ities the fact of the crime whether or not the parent or other legal au-

thority is the accused; and (iv) there is substantially competent expert

testimony indicating the victim psychologically repressed such witness'

memory of the fact of the crime, and in the expert's professional opinion

the recall of such memory is accurate and free of undue manipulation,

and substantial corroborating evidence can be produced in support of the

allegations contained in the complaint or information but in no event may

a prosecution be commenced as provided in this section later than the

date the victim turns 28 years of age. Corroborating evidence may in-

clude, but is not limited to, evidence the defendant committed similar

acts against other persons or evidence of contemporaneous physical man-

ifestations of the crime. ``Parent or other legal authority'' shall include

but not be limited to natural and stepparents, grandparents, aunts, uncles

or siblings.

(9) (10) An offense is committed either when every element occurs,

or, if a legislative purpose to prohibit a continuing offense plainly appears,

at the time when the course of conduct or the defendant's complicity

therein is terminated. Time starts to run on the day after the offense is

committed.

(10) (11) A prosecution is commenced when a complaint or infor-

mation is filed, or an indictment returned, and a warrant thereon is de-

livered to the sheriff or other officer for execution. No such prosecution

shall be deemed to have been commenced if the warrant so issued is not

executed without unreasonable delay.

New Sec. 4. (a) Notwithstanding any other provision of law, a person

in state custody, at any time after conviction for murder as defined by

K.S.A. 21-3401, and amendments thereto, or for rape as defined by K.S.A.

21-3502, and amendments thereto, may petition the court that entered

the judgment for forensic DNA testing (deoxyribonucleic acid testing) of

any biological material that:

(1) Is related to the investigation or prosecution that resulted in the

conviction;

(2) is in the actual or constructive possession of the state; and

(3) was not previously subjected to DNA testing, or can be subjected

to retesting with new DNA techniques that provide a reasonable likeli-

hood of more accurate and probative results.

(b) (1) The court shall notify the prosecuting attorney of a petition

made under subsection (a) and shall afford the prosecuting attorney an

opportunity to respond.

(2) Upon receiving notice of a petition made under subsection (a),

the prosecuting attorney shall take such steps as are necessary to ensure

that any remaining biological material that was secured in connection with

the case is preserved pending the completion of proceedings under this

section.

(c) The court shall order DNA testing pursuant to a petition made

under subsection (a) upon a determination that testing may produce non-

cumulative, exculpatory evidence relevant to the claim of the petitioner

that the petitioner was wrongfully convicted or sentenced.

(d) The cost of DNA testing ordered under subsection (c) shall be

borne by the state or the petitioner, as the court may order in the interests

of justice, if it is shown that the petitioner is not indigent and possesses

the means to pay.

(e) The court may at any time appoint counsel for an indigent appli-

cant under this section.

(f) (1) If the results of DNA testing conducted under this section are

unfavorable to the petitioner, the court:

(A) Shall dismiss the petition; and

(B) in the case of a petitioner who is not indigent, may assess the

petitioner for the cost of such testing.

(2) If the results of DNA testing conducted under this section are

favorable to the petitioner, the court shall:

(A) order a hearing, notwithstanding any provision of law that would

bar such a hearing; and

(B) enter any order that serves the interests of justice, including, but

not limited to, an order:

(i) Vacating and setting aside the judgment;

(ii) discharging the petitioner if the petitioner is in custody;

(iii) resentencing the petitioner; or

(iv) granting a new trial.

(3) If the results of DNA testing conducted under this section are

inconclusive, the court may order a hearing to determine whether there

is a substantial question of innocence. If the petitioner proves by a pre-

ponderance of the evidence that there is a substantial question of inno-

cence, the court shall proceed as provided in subsection (f)(2).

(g) Nothing in this section shall be construed to limit the circum-

stances under which a person may obtain DNA testing or other postcon-

viction relief under any other provision of law.

Sec. 5. K.S.A. 21-3701 is hereby amended to read as follows: 21-

3701. (a) Theft is any of the following acts done with intent to deprive

the owner permanently of the possession, use or benefit of the owner's

property:

(1) Obtaining or exerting unauthorized control over property;

(2) obtaining by deception control over property;

(3) obtaining by threat control over property; or

(4) obtaining control over stolen property knowing the property to

have been stolen by another.

(b) (1) Theft of property of the value of $25,000 or more is a severity

level 7, nonperson felony.

(2) Theft of property of the value of at least $500 but less than

$25,000 is a severity level 9, nonperson felony.

(3) Theft of property regardless of the value from three separate mer-

cantile establishments within a period of 72 hours as part of the same act

or transaction or in two or more acts or transactions connected together

or constituting parts of a common scheme or course of conduct is a severity

level 9, nonperson felony.

(3) (4) Theft of property of the value of less than $500 is a class A

nonperson misdemeanor.

(4) (5) Theft of property of the value of less than $500 is a severity

level 9, nonperson felony if committed by a person who has, within five

years immediately preceding commission of the crime, been convicted of

theft two or more times.

Sec. 6. K.S.A. 2000 Supp. 21-3764 is hereby amended to read as

follows: 21-3764. (a) Unlawful manufacturing or selling of a theft detec-

tion shielding device is intentionally manufacturing, selling, offering for

sale or distributing in any way a laminated or coated bag or device par-

ticular to and intentionally marketed for shielding and intended to shield

merchandise from detection by electronic or magnetic theft alarm sensor.

(b) Unlawful possession of a theft detection shielding device is inten-

tionally possessing any laminated or coated bag or device particular to

and designed for shielding and intended to shield merchandise from de-

tection by an electronic or magnetic theft alarm sensor, with the intent

to commit theft.

(c) Unlawful possession of a theft detection device remover is inten-

tionally possessing any tool or device designed to allow the removal of

any theft detection device from any merchandise with the intent to use

such tool to remove any theft detection device from any merchandise

without the permission of the merchant or person owning or holding such

merchandise.

(d) Unlawful removal of a theft detection device is intentionally re-

moving the device from merchandise prior to purchase.

(e) Unlawful possession of a sales receipt or universal product code

label is possessing 15 or more fraudulent retail sales receipts or universal

product code labels, or any combination thereof, or possessing the device

which manufactures fraudulent retail sales receipts or universal product

code labels. A person having possession, custody or control of 15 or more

such receipts or labels or such device shall be presumed to possess such

items with the intent to cheat or defraud a retailer.

(e) (f) Violation of this section is a severity level 9, nonperson felony.

(f) (g) This section shall be part of and supplemental to the Kansas

criminal code.

Sec. 7. K.S.A. 21-4614 is hereby amended to read as follows: 21-

4614. In any criminal action in which the defendant is convicted upon a

plea of guilty or no contest or trial by court or jury or upon completion

of an appeal, the judge, if he or she the judge sentences the defendant to

confinement, shall direct that for the purpose of computing defendant's

sentence and his or her parole eligibility and conditional release dates

thereunder, that such sentence is to be computed from a date, to be

specifically designated by the court in the sentencing order of the journal

entry of judgment or the judgment form, whichever is delivered with the

defendant to the correctional institution, such date shall be established

to reflect and shall be computed as an allowance for the time which the

defendant has spent incarcerated pending the disposition of the defend-

ant's case. In recording the commencing date of such sentence the date

as specifically set forth by the court shall be used as the date of sentence

and all good time allowances as are authorized by the Kansas adult au-

thority parole board are to be allowed on such sentence from such date

as though the defendant were actually incarcerated in any of the insti-

tutions of the state correctional system. Such jail time credit is not to be

considered to reduce the minimum or maximum terms of confinement

as are authorized by law for the offense of which the defendant has been

convicted.

Sec. 8. K.S.A. 22-3303 is hereby amended to read as follows: 22-

3303. (1) A defendant who is charged with a felony and is found to be

incompetent to stand trial shall be committed for evaluation and treat-

ment to the state security hospital or any appropriate county or private

institution. A defendant who is charged with a misdemeanor and is found

to be incompetent to stand trial shall be committed for evaluation and

treatment to any appropriate state, county or private institution. Any such

commitment shall be for a period of not to exceed 90 days. Within 90

days after the defendant's commitment to such institution, the chief med-

ical officer of such institution shall certify to the court whether the de-

fendant has a substantial probability of attaining competency to stand trial

in the foreseeable future. If such probability does exist, the court shall

order the defendant to remain in an appropriate state, county or private

institution until the defendant attains competency to stand trial or for a

period of six months from the date of the original commitment, whichever

occurs first. If such probability does not exist, the court shall order the

secretary of social and rehabilitation services to commence involuntary

commitment proceedings pursuant to article 29 of chapter 59 of the Kan-

sas Statutes Annotated, and any amendments thereto. When a defendant

is charged with any off-grid felony, any nondrug severity level 1 through

3 felony, or a violation of K.S.A. 21-3504, 21-3511, 21-3518, 21-3603 or

21-3719, and amendments thereto, and commitment proceedings have

commenced, for such proceeding, ``mentally ill person subject to invol-

untary commitment for care and treatment'' means a mentally ill person,

as defined in subsection (e) of K.S.A. 2000 Supp. 59-2946, and amend-

ments thereto, who is likely to cause harm to self and others, as defined

in subsection (f)(3) of K.S.A. 2000 Supp. 59-2946, and amendments

thereto. The other provisions of subsection (f) of K.S.A. 2000 Supp. 59-

2946, and amendments thereto, shall not apply.

(2) If a defendant who was found to have had a substantial probability

of attaining competency to stand trial, as provided in subsection (1), has

not attained competency to stand trial within six months from the date

of the original commitment, the court shall order the secretary of social

and rehabilitation services to commence involuntary commitment pro-

ceedings pursuant to article 29 of chapter 59 of the Kansas Statutes An-

notated, and any amendments thereto. When a defendant is charged with

any off-grid felony, any nondrug severity level 1 through 3 felony, or a

violation of K.S.A. 21-3504, 21-3511, 21-3518, 21-3603 or 21-3719, and

amendments thereto, and commitment proceedings have commenced, for

such proceeding, ``mentally ill person subject to involuntary commitment

for care and treatment'' means a mentally ill person, as defined in sub-

section (e) of K.S.A. 2000 Supp. 59-2946, and amendments thereto, who

is likely to cause harm to self and others, as defined in subsection (f)(3)

of K.S.A. 2000 Supp. 59-2946, and amendments thereto. The other pro-

visions of subsection (f) of K.S.A. 2000 Supp. 59-2946, and amendments

thereto, shall not apply.

(3) When reasonable grounds exist to believe that a defendant who

has been adjudged incompetent to stand trial is competent, the court in

which the criminal case is pending shall conduct a hearing in accordance

with K.S.A. 22-3302 and amendments thereto to determine the person's

present mental condition. Reasonable notice of such hearings shall be

given to the prosecuting attorney, the defendant and the defendant's at-

torney of record, if any. If the court, following such hearing, finds the

defendant to be competent, the proceedings pending against the defend-

ant shall be resumed.

(4) A defendant committed to a public institution under the provi-

sions of this section who is thereafter sentenced for the crime charged at

the time of commitment may be credited with all or any part of the time

during which the defendant was committed and confined in such public

institution.

New Sec. 9. The secretary of social and rehabilitation services shall

convene a task force to study current programs and laws for alleged of-

fenders with disabilities that render such offenders potentially incompe-

tent to stand trial, but who do not meet the criteria for involuntary com-

mitment under Kansas law. The task force shall review and make

recommendations on the adequacy of Kansas programs and services, and

current Kansas law, in protecting public safety and in providing services

and support to such alleged offenders. The secretary shall report to the

judiciary committee during the 2001 interim and shall make a final report

including programmatic and statutory recommendations to the 2002 leg-

islature.

Sec. 10. K.S.A. 2000 Supp. 22-4902 is hereby amended to read as

follows: 22-4902. As used in this act, unless the context otherwise re-

quires:

(a) ``Offender'' means: (1) A sex offender as defined in subsection (b);

(2) a violent offender as defined in subsection (d);

(3) a sexually violent predator as defined in subsection (f);

(4) any person who, on and after the effective date of this act, is

convicted of any of the following crimes when the victim is less than 18

years of age:

(A) Kidnapping as defined in K.S.A. 21-3420 and amendments

thereto, except by a parent;

(B) aggravated kidnapping as defined in K.S.A. 21-3421 and amend-

ments thereto; or

(C) criminal restraint as defined in K.S.A. 21-3424 and amendments

thereto, except by a parent;

(4) (5) any person convicted of any of the following criminal sexual

conduct if one of the parties involved is less than 18 years of age:

(A) Adultery as defined by K.S.A. 21-3507, and amendments thereto;

(B) criminal sodomy as defined by subsection (a)(1) of K.S.A. 21-

3505, and amendments thereto;

(C) promoting prostitution as defined by K.S.A. 21-3513, and amend-

ments thereto;

(D) patronizing a prostitute as defined by K.S.A. 21-3515, and

amendments thereto;

(E) lewd and lascivious behavior as defined by K.S.A. 21-3508, and

amendment thereto; or

(F) unlawful sexual relations as defined by K.S.A. 21-3520, and

amendments thereto;

(5) any conviction for (6) any person who is a resident of this state

who has been required to register under any federal, military or other

state's law;

(7) any person who has been convicted of an offense in effect at any

time prior to the effective date of this act, that is comparable to any crime

defined in subsection (3) or (4) (4) or (5), or any federal, military or other

state conviction for an offense that under the laws of this state would be

an offense defined in subsection (3) or (4) (4) or (5); or

(6) (8) any person who has been convicted of an attempt, conspiracy

or criminal solicitation, as defined in K.S.A. 21-3301, 21-3302 or 21-3303

and amendments thereto, of an offense defined in subsection (3) or (4)

(4) or (5).

Convictions which result from or are connected with the same act, or

result from crimes committed at the same time, shall be counted for the

purpose of this section as one conviction. Any conviction set aside pur-

suant to law is not a conviction for purposes of this section. A conviction

from another state shall constitute a conviction for purposes of this sec-

tion.

(b) ``Sex offender'' includes any person who, after the effective date

of this act, is convicted of any sexually violent crime set forth in subsection

(c).

(c) ``Sexually violent crime'' means:

(1) Rape as defined in K.S.A. 21-3502 and amendments thereto;

(2) indecent liberties with a child as defined in K.S.A. 21-3503 and

amendments thereto;

(3) aggravated indecent liberties with a child as defined in K.S.A. 21-

3504 and amendments thereto;

(4) criminal sodomy as defined in subsection (a)(2) and (a)(3) of

K.S.A. 21-3505 and amendments thereto;

(5) aggravated criminal sodomy as defined in K.S.A. 21-3506 and

amendments thereto;

(6) indecent solicitation of a child as defined by K.S.A. 21-3510 and

amendments thereto;

(7) aggravated indecent solicitation of a child as defined by K.S.A.

21-3511 and amendments thereto;

(8) sexual exploitation of a child as defined by K.S.A. 21-3516 and

amendments thereto;

(9) sexual battery as defined by K.S.A. 21-3517 and amendments

thereto;

(10) aggravated sexual battery as defined by K.S.A. 21-3518 and

amendments thereto;

(11) aggravated incest as defined by K.S.A. 21-3603 and amendments

thereto; or

(12) any conviction for a an 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 (1) through (11), or any federal, military or

other state conviction for a felony an offense that under the laws of this

state would be a sexually violent crime as defined in this section;

(13) an attempt, conspiracy or criminal solicitation, as defined in

K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of a sex-

ually violent crime, as defined in this section; or

(14) 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.

(d) ``Violent offender'' includes any person who, after the effective

date of this act, is convicted of any of the following crimes:

(1) Capital murder as defined by K.S.A. 21-3439 and amendments

thereto;

(2) murder in the first degree as defined by K.S.A. 21-3401 and

amendments thereto;

(3) murder in the second degree as defined by K.S.A. 21-3402 and

amendments thereto;

(4) voluntary manslaughter as defined by K.S.A. 21-3403 and amend-

ments thereto;

(5) involuntary manslaughter as defined by K.S.A. 21-3404 and

amendments thereto; or

(6) any conviction for an offense in effect at any time prior to the

effective date of this act, that is comparable to any crime defined in this

subsection, or any federal, military or other state conviction for an offense

that under the laws of this state would be an offense defined in this

subsection; or

(7) an attempt, conspiracy or criminal solicitation, as defined in

K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of an of-

fense defined in this subsection.

(e) ``Law enforcement agency having jurisdiction'' means the sheriff

of the county in which the offender expects to reside upon the offender's

discharge, parole or release.

(f) ``Sexually violent predator'' means any person who, on or after

July 1, 2001, is found to be a sexually violent predator pursuant to K.S.A.

59-29a01 et seq. and amendments thereto.

(g) ``Nonresident student or worker'' includes any offender who

crosses into the state or county for more than 14 days, or for an aggregate

period exceeding 30 days in a calender year, for the purposes of employ-

ment, with or without compensation, or to attend school as a student.

(h) ``Aggravated offenses'' means engaging in sexual acts involving

penetration with victims of any age through the use of force or the threat

of serious violence, or engaging in sexual acts involving penetration with

victims less than 14 years of age, and includes the following offenses:

(1) Rape as defined in subsection (a)(1)(A) and subsection (a)(2) of

K.S.A. 2000 Supp. 21-3502, and amendments thereto;

(2) aggravated criminal sodomy as defined in subsection (a)(1) and

subsection (a)(3)(A) of K.S.A. 21-3506, and amendments thereto; and

(3) any attempt, conspiracy or criminal solicitation, as defined in

K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, of an of-

fense defined in subsection (f).

Sec. 11. K.S.A. 2000 Supp. 22-4904 is hereby amended to read as

follows: 22-4904. (a) (1) Except as provided in subsection (a)(2), within

10 days of the offender coming into any county in which the offender

resides or is temporarily domiciled for more than 10 days, the offender

shall register with the sheriff of the county.

(2) Within 10 days of the offender coming into any county in which

the offender resides or temporarily resides for more than 10 days, any

offender who has provided the information and completed and signed

the registration form as required in K.S.A. 22-4905 and amendments

thereto, shall verify with the sheriff of the county that the sheriff has

received such offender's information and registration form.

(3) Upon registration with a school or educational institution, a non-

resident student attending such school or educational institution shall reg-

ister with the sheriff within 10 days of the commencement of the school

term.

(4) Upon commencement of employment, a nonresident worker shall

register with the sheriff within 10 days of the commencement date of

employment.

(3) (5) For persons required to register as provided in subsection

subsections (a)(1), (a)(3) and (a)(4), the sheriff shall: (A) Explain the duty

to register and the procedure for registration;

(B) obtain the information required for registration as provided in

K.S.A. 22-4907 and amendments thereto;

(C) inform the offender that the offender must give written notice of

any change of address within 10 days of a change in residence to the law

enforcement agency where last registered and the Kansas bureau of in-

vestigation;

(D) inform the nonresident student offender that the offender must

give written notice to the sheriff and the Kansas bureau of investigation

of any change or termination of attendance at the school or educational

institution the offender is attending, within 10 days of such change or

termination;

(E) inform the nonresident worker offender that the offender must

give written notice to the sheriff and the Kansas bureau of investigation

of any termination of employment at the offender's place of employment,

within 10 days of such termination;

(F) inform the offender that if the offender changes residence to

another state, the offender must inform the law enforcement agency

where last registered and the Kansas bureau of investigation of such

change in residence and must register in the new state within 10 days of

such change in residence; and

(G) inform the offender that the offender must also register in any

state or county where the offender is employed, carries on a vocation or

is a student; and

(E) (H) require the offender to read and sign the registration form

which shall include a statement that the requirements provided in this

subsection have been explained to the offender.

(4) (6) Such sheriff, within three days of receipt of the initial regis-

tration shall forward this information to the Kansas bureau of investiga-

tion.

(5) (7) Notwithstanding any other provision of law, if a diversionary

agreement or probation order, either adult or juvenile, or a juvenile of-

fender sentencing order, requires registration under the Kansas offender

registration act then all provisions of that act shall apply, except that the

term of registration shall be controlled by such diversionary agreement,

probation order or juvenile offender sentencing order.

(b) (1) If any person required to register as provided in this act

changes the address of the person's residence, the offender, within 10

days, shall inform in writing the Kansas bureau of investigation of the new

address.

(2) After receipt of the change of address, the Kansas bureau of in-

vestigation shall forward this information to the law enforcement agency

having jurisdiction of the new place of residence within 10 days of such

receipt of the change of address.

(c) For any person required to register as provided in this act, every

90 days after the person's initial registration date during the period the

person is required to register, the following applies:

(1) The Kansas bureau of investigation shall mail a nonforwardable

verification form to the last reported address of the person.

(2) The person shall mail the verification form to the Kansas bureau

of investigation within 10 days after receipt of the form.

(3) The verification form shall be signed by the person, and shall state

provide that the person still resides at the address last reported to the

Kansas bureau of investigation the following information, as applicable,

to the Kansas bureau of investigation: (A) Whether the person still resides

at the address last reported; (B) whether the person still attends the school

or educational institution last reported; (C) whether the person is still

employed at the place of employment last reported; and (D) whether the

person's vehicle registration information is the same as last reported.

(4) If the person fails to mail the verification form to the Kansas

bureau of investigation within 10 days after receipt of the form, the person

shall be in violation of the Kansas offender registration act.

(5) Nothing contained in this section shall be construed to alleviate

any person required to register as provided in this act from meeting the

requirements prescribed in subsection subsections (a)(1), (a)(2) and

(b)(1).

Sec. 12. K.S.A. 2000 Supp. 22-4905 is hereby amended to read as

follows: 22-4905. (a) (1) Any offender, who is discharged or paroled from

a prison, hospital or other institution or facility involving a violation of any

crime or confinement as provided in subsection (a), (b) or, (d) or (f) of

K.S.A. 22-4902 and amendments thereto, prior to discharge, parole or

release, shall be informed by the staff of the facility in which the offender

was confined of the duty to register as provided in this act.

(2) (A) The staff of the facility shall: (i) Explain the duty to register

and the procedure for registration;

(ii) obtain the information required for registration as provided in

K.S.A. 22-4907 and amendments thereto;

(iii) inform the offender that the offender must give written notice

of any change of address within 10 days of a change in residence to the

law enforcement agency where last registered and the Kansas bureau of

investigation;

(iv) inform the offender that if the offender changes residence to

another state, the offender must inform the law enforcement agency

where last registered and the Kansas bureau of investigation of such

change in residence and must register in the new state within 10 days of

such change in residence; and

(v) inform the offender that the offender must also register in any

state or county where the offender is employed, carries on a vocation or

is a student; and

(vi) require the offender to read and sign the registration form which

shall include a statement that the requirements provided in this subsec-

tion have been explained to the offender.

(B) The staff of the facility shall give one copy of the form to the

person, within three days, and shall send two copies of the form provided

by subsection (2)(A)(v) to the Kansas bureau of investigation, which shall

then forward one copy to the law enforcement agency having jurisdiction

where the person expects to reside upon discharge, parole or release. The

Kansas bureau of investigation must immediately ensure that such infor-

mation is entered in the state law enforcement record system. The Kansas

bureau of investigation shall transmit such conviction data and finger-

prints to the federal bureau of investigation.

(b) (1) Any offender who is released on probation, receives a sus-

pended sentence, sentenced to community corrections or released on

postrelease supervision because of the commission of any crime as pro-

vided in subsection (a), (b) or (d) of K.S.A. 22-4902 and amendments

thereto, prior to release, shall be informed of the offenders duty to reg-

ister as provided in this act by the court in which the offender is convicted.

(2) (A) The court shall: (i) Explain the duty to register and the pro-

cedure for registration;

(ii) obtain the information required for registration as provided in

K.S.A. 22-4907 and amendments thereto;

(iii) inform the offender that the offender must give written notice

of any change of address within 10 days of a change in residence to the

law enforcement agency where last registered and the Kansas bureau of

investigation;

(iv) inform the offender that if the offender changes residence to

another state, the offender must inform the law enforcement agency

where last registered and the Kansas bureau of investigation of such

change in residence and must register in the new state within 10 days of

such change in residence; and

(v) inform the offender that the offender must also register in any

state or county where the offender is employed, carries on a vocation or

is a student; and

(vi) require the offender to read and sign the registration form which

shall include a statement that the requirements provided in this subsec-

tion have been explained to the offender.

(B) The court shall give one copy of the form to the person and,

within three days, shall send two copies of the form provided by subsec-

tion (2)(A)(v) to the Kansas bureau of investigation which shall then for-

ward one copy to the law enforcement agency having jurisdiction where

the person expects to reside upon release. The Kansas bureau of inves-

tigation must immediately ensure that such information is entered in the

state law enforcement record system. The Kansas bureau of investigation

shall transmit such conviction data and fingerprints to the federal bureau

of investigation.

Sec. 13. K.S.A. 2000 Supp. 22-4906 is hereby amended to read as

follows: 22-4906. (a) Any person required to register as provided in this

act shall be required to register: (1) Upon the first conviction of a sexually

violent crime as defined in subsection (c) of K.S.A. 22-4902 and amend-

ments thereto, any offense as defined in subsection (a) of K.S.A. 22-4902

and amendments thereto or any offense as defined in subsection (d) of

K.S.A. 22-4902 and amendments thereto, if not confined, for a period of

10 years after conviction, or, if confined, for a period of 10 years after

paroled, discharged or released; or (2) upon a second or subsequent con-

viction for such person's lifetime.

(b) Upon the first conviction, liability for registration terminates, if

not confined, at the expiration of 10 years from the date of conviction,

or, if confined, at the expiration of 10 years from the date of parole,

discharge or release, if the convicted offender does not again become

liable to register as provided by this act during that period.

(c) On and after July 1, 1999, Any person who has been convicted of

an aggravated offense shall be required to register for such person's life-

time. The provisions of this subsection shall expire on June 30, 2009.

(d) Any person who has been declared a sexually violent predator

pursuant to K.S.A. 59-29a01 et seq., and amendments thereto, shall reg-

ister for such person's lifetime.

(e) Any nonresident worker shall register for the duration of such

person's employment. The provisions of this subsection are in addition to

subsections (a) and (b).

(f) Any nonresident student shall register for the duration of such

person's attendance at a school or educational institution as provided in

this act. The provisions of this subsection are in addition to subsections

(a) and (b).

Sec. 14. K.S.A. 2000 Supp. 22-4907 is hereby amended to read as

follows: 22-4907. (a) Registration as required by this act shall consist of a

form prepared by the Kansas bureau of investigation, which shall include

a statement that the requirements provided in this section have been

explained to the person, and shall be signed by the person. Such regis-

tration form shall include the following:

(1) Name;

(2) date and place of birth;

(3) offense or offenses committed, date of conviction or convictions

obtained;

(4) city or county of conviction or convictions obtained;

(5) sex and age of victim;

(6) current address;

(7) social security number;

(8) identifying characteristics such as race, skin tone, sex, age, hair

and eye color, scars, tattoos and blood type;

(9) occupation and, name of employer and place of employment;

(10) drivers license and vehicle information;

(11) documentation of any treatment received for a mental abnor-

mality or personality disorder of the offender; for purposes of docu-

menting the treatment received, sheriffs, prison officials and courts may

rely on information that is readily available to them from existing records

and the offender.

(12) anticipated future residence;

(13) a photograph; and

(14) fingerprints; and

(15) school.

(b) (1) The offender shall also provide to the registering law enforce-

ment agency DNA exemplars, unless already on file.

(2) If the exemplars to be taken require the withdrawal of blood, such

withdrawal may be performed only by: (A) A person licensed to practice

medicine and surgery or a person acting under the supervision of any

such licensed person;

(B) a registered nurse or a licensed practical nurse;

(C) any qualified medical technician; or

(D) a licensed phlebotomist.

(c) Unless the person has provided the information and completed

and signed the registration form as provided in K.S.A. 22-4905 and

amendments thereto within three days, the registering law enforcement

agency shall forward the registration form to the Kansas bureau of inves-

tigation.

(d) The Kansas bureau of investigation may participate in the federal

bureau of investigation's NCIC 2000.

Sec. 15. K.S.A. 2000 Supp. 22-4908 is hereby amended to read as

follows: 22-4908. (a) Any offender registered as provided in this act may

apply to the sentencing court for an order relieving the offender of the

duty of registration, except that no offender may apply as provided in this

section for an order relieving the offender of the duty of registration until

such offender has registered for a period of at least 10 years for each

conviction for which an offender must register as provided by this act.

The court shall hold a hearing on the application at which the applicant

and any interested persons may present witnesses and other evidence.

(b) At such hearing, if the person is a person who is required to

register due to a conviction of a sexually violent crime as defined in K.S.A.

22-4902 and amendments thereto, the court shall receive and consider a

report by a board composed of experts in the field of the behavior and

treatment of sexual offenders. Such board shall be appointed as provided

by rules and regulations promulgated by the attorney general. If, after

the hearing involving such person, the court finds by a preponderance of

the evidence that the sex offender is rehabilitated and that the sex of-

fender, does not suffer from a mental abnormality or personality disorder

that would make the person likely to engage in a predatory sexually violent

crime, the court shall grant an order relieving the offender of the duty of

further registration under this act. For purposes of this act, ``mental ab-

normality'' means a congenital or acquired condition affecting the emo-

tional or volitional capacity which predisposes the person to commit a

sexually violent crime in a degree constituting such person a menace to

the health and safety of others.

(c) If, after the hearing involving a person who is an offender who

was not required to register due to a conviction of a sexually violent crime

as defined in K.S.A. 22-4902 and amendments thereto, the court finds by

a preponderance of the evidence that the offender is rehabilitated, the

court shall grant an order relieving the offender of the duty of further

registration under this act.

(d) Any person registered as provided in this act may apply to the

sentencing court for an order relieving such person of the duty of regis-

tration for any conviction which has been set aside. The court shall hold

a hearing on the application at which the applicant shall present evidence

verifying that such applicant's conviction was set aside. If the court finds

that the person's conviction was set aside, the court shall grant an order

relieving the person of the duty of further registration under this act for

any conviction which has been set aside. Such court granting such an

order shall forward a copy of such order to the sheriff of the county in

which such person has registered and to the Kansas bureau of investi-

gation. Upon receipt of such copy of the order, such sheriff and the Kan-

sas bureau of investigation shall remove such person's name from the

registry for any conviction which has been set aside. Nothing contained

in this subsection shall relieve any person of the duty to register or any

other duty prescribed under this act for any conviction which has not

been set aside.

(e) Any No person required to register as an offender pursuant to the

Kansas offender registration act, K.S.A. 22-4901 et seq., and amendments

thereto, who has a second or subsequent conviction for an offense which

requires registration pursuant to such act, and any person who has been

convicted of an aggravated offense, shall not be granted an order relieving

the offender of further registration under this act. The provisions of this

subsection shall expire on June 30, 2009.

Sec. 16. K.S.A. 2000 Supp. 22-4909 is hereby amended to read as

follows: 22-4909. The statements or any other information required by

this act shall be open to inspection in the sheriff's office by the public at

the sheriff's office, at the headquarters of the Kansas bureau of investi-

gation and on any internet website sponsored or created by a sheriff's

department or the Kansas bureau of investigation that contains such state-

ments or information, and specifically are subject to the provisions of the

Kansas open records act, K.S.A. 45-215 et seq., and amendments thereto,

except that the name, address, telephone number, or any other infor-

mation which specifically and individually identifies the victim of any of-

fender required to register as provided in this act shall not be disclosed

other than to law enforcement agencies.

Sec. 17. K.S.A. 38-1611 is hereby amended to read as follows: 38-

1611. (a) Fingerprints or photographs shall not be taken of any juvenile

who is taken into custody for any purpose, except that:

(1) Fingerprints or photographs of the juvenile may be taken if au-

thorized by a judge of the district court having jurisdiction;

(2) a juvenile's fingerprints shall be taken, and photographs of a ju-

venile may be taken, immediately upon taking the juvenile into custody

or upon first appearance or in any event before final sentencing, before

the court for an offense which, if committed by a person 18 or more years

of age, would make the person liable to be arrested and prosecuted for

the commission of a felony as defined by K.S.A. 21-3105 and amendments

thereto or, a class A or B misdemeanor or assault, as defined by K.S.A.

21-3408, and amendments thereto; and

(3) fingerprints or photographs of a juvenile may be taken under

K.S.A. 21-2501 and amendments thereto if the juvenile has been:

(A) Prosecuted as an adult by reason of 38-1636, and amendments

thereto; or

(B) convicted of aggravated juvenile delinquency as defined by K.S.A.

21-3611 and amendments thereto; or

(C) taken into custody for an offense described in subsection (b)(1)

or (2) of K.S.A. 38-1602 and amendments thereto.

(b) Fingerprints and photographs taken under subsection (a)(1) or

(2) shall be kept readily distinguishable from those of persons of the age

of majority. Fingerprints and photographs taken under subsection (a)(3)

may be kept in the same manner as those of persons of the age of majority.

(c) Fingerprints and photographs of a juvenile shall not be sent to a

state or federal repository, except that:

(1) Fingerprints and photographs may be sent to a state or federal

repository if authorized by a judge of the district court having jurisdiction;

(2) a juvenile's fingerprints shall, and photographs of a juvenile may,

be sent to a state or federal repository if taken under subsection (a)(2);

and

(3) fingerprints or photographs taken under subsection (a)(3) shall be

processed and disseminated in the same manner as those of persons of

the age of majority.

(d) Fingerprints or photographs of a juvenile may be furnished to

another juvenile justice agency, as defined by K.S.A. 38-1617 and amend-

ments thereto, if the other agency has a legitimate need for the finger-

prints or photographs.

(e) Any fingerprints or photographs of a juvenile taken under the

provisions of subsection (a)(2) as it existed before the effective date of

this act may be sent to a state or federal repository on or before December

31, 1984.

(f) Any law enforcement agency that willfully fails to make any report

required by this section shall be liable to the state for the payment of a

civil penalty, recoverable in an action brought by the attorney general, in

an amount not exceeding $500 for each report not made. Any civil penalty

recovered under this subsection shall be paid into the state general fund.

(g) The director of the Kansas bureau of investigation shall adopt any

rules and regulations necessary to implement, administer and enforce the

provisions of this section, including time limits within which fingerprints

shall be sent to a state or federal repository when required by this section.

(h) Nothing in this section shall preclude the custodian of a juvenile

from authorizing photographs or fingerprints of the juvenile to be used

in any action under the Kansas parentage act.

Sec. 18. K.S.A. 21-3701, 21-4614, 22-3303 and 38-1611 and K.S.A.

2000 Supp. 21-2511, 21-3106, 21-3520, 21-3764, 22-4902, 22-4904, 22-

4905, 22-4906, 22-4907, 22-4908 and 22-4909 are hereby repealed.

Sec. 19. 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