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A conviction for a Kansas DUI will have long lasting consequences. A
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personal freedom.
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Kansas DUI Laws and Drunk Driving Information
In the state of Kansas, it is against the law to drive or attempt to operate a motor vehicle while having a blood alcohol concentration (BAC) of .08 or above. If you are a first time offender and you are arrested for a DUI in Kansas you will receive 48 hours of mandatory imprisonment or you will have to perform 100 hours of community service. In addition to those punishments you must also complete a court ordered alcohol and drug safety education program. You will be fined anywhere from $500 to $1,000 plus any additional court costs, probation and evaluation fees you may incur. Your driving privileges will most probably be suspended for a mandatory 30 days and then restricted for an additional 330 days.
When a person is arrested for a DUI in Kansas there are two cases initiated: one is a criminal charge brought by the state of Kansas itself; the other is a civil lawsuit brought against your driver's license by the Kansas Department of Revenue, these proceedings will occur simultaneously. Kansas is an implied consent state which means that every person who operates a motor vehicle in the state of Kansas is deemed to have given their consent to any and all field sobriety tests. If you decide to not participate in the field sobriety tests the arresting officer will typically confiscate your license on the spot.
Article 10.--DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS; RELATED PROVISIONS
8-1001.
Tests for alcohol or drugs; request by officer, grounds; consent
implied; administration of tests, when; procedures; immunity from
liability; warning statement; search warrant, admissibility of test;
availability of test result; remedial nature of law. (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, including, but not limited to, a preliminary
screening test pursuant to K.S.A. 8-1012, and amendments thereto, 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 person'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 system; and one of the
following conditions exists: (1) The person has been arrested or
otherwise taken into custody for any offense involving operation 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 amendments
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 available 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 amendments thereto, or a
phlebotomist. When presented with a written statement 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 procedure used
and shall not require the person to sign any additional consent 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 impairment 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) 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
constitutional right;
(C)
there is no constitutional right to consult with an attorney
regarding 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 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 30 days for the first
occurrence, one year for the second, third or fourth occurrence and
permanently revoked for a fifth or subsequent offense;
(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 privileges will be suspended up to one year;
(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;
(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
(I)
after the completion of the testing, the person has the right to
consult with an attorney and may secure additional testing, which, if
desired, 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 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 believe 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. 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 suspension and
restriction, as provided in K.S.A. 8-1002 and 8-1014, and amendments
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 disqualified from driving a
commercial motor vehicle, pursuant to K.S.A. 8-2,142, and amendments
thereto. 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 .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.
(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.
(m) It shall not be a defense that the
person did not understand the written or oral notice required by this
section.
(n) No test results shall be suppressed
because of technical irregularities in the consent or notice required
pursuant to this act.
(o) Nothing in this section shall be
construed to limit the admissibility at any trial of alcohol or drug
concentration testing results obtained pursuant to a search
warrant.
(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.
(q) This act is remedial law and shall be
liberally construed to promote public health, safety and welfare.
History: L. 1955, ch. 61, § 1; L. 1967,
ch. 60, § 1; L. 1973, ch. 41, § 1; L. 1977, ch. 38, § 4; L. 1978, ch.
36, § 1; L. 1982, ch. 144, § 3; L. 1985, ch. 48, § 3; L. 1985, ch. 50,
§ 1; L. 1986, ch. 40, § 2; L. 1988, ch. 47, § 13; L. 1990, ch. 47, § 1;
L. 1991, ch. 36, § 18; L. 1993, ch. 259, § 1; L. 1993, ch. 275, § 1; L.
1994, ch. 353, § 9; L. 1999, ch. 169, § 1; L. 2001, ch. 200, § 12; L.
2005, ch. 172, § 2; July 1.
8-1002
Test refusal or failure; suspension of
license; notice; procedure. (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 commercial 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 amendments 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 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 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 environment; 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 certification, copy or reproduction shall
accord the department authority to proceed 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 nonperson
misdemeanor.
(c)
When the officer directing administration of the testing
determines 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 suspension; (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 suspension 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 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.
(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
certification and notice of suspension the officer's certification and
notice of suspension, along with any licenses taken, shall be forwarded
to the division.
(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)
The division shall prepare and distribute forms for use by law
enforcement officers in giving the notice required by this
section.
(h)
The provisions of K.S.A. 60-206 and amendments thereto regarding
the computation of time shall not be applicable in determining the
effective date of suspension set out in subsection (d). "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.
History: L. 1955, ch. 61, § 2; L. 1985,
ch. 48, § 4; L. 1985, ch. 50, § 2; L. 1986, ch. 40, § 3; L. 1988, ch.
47, § 14; L. 1989, ch. 38, § 35; L. 1989, ch. 38, § 36; L. 1990, ch.
44, § 3; L. 1991, ch. 36, § 19; L. 1993, ch. 259, § 2; L. 1993, ch.
275, § 2; L. 1995, ch. 208, § 2; L. 2001, ch. 200, § 13; July 1.
8-1004
Same; additional test by own physician; effect of denial.
Without limiting or affecting the provisions of K.S.A. 8-1001 and
amendments thereto, the person tested shall have a reasonable
opportunity to have an additional test by a physician of the person's
own choosing. In case the officer refuses to permit such additional
testing, the testing administered pursuant to K.S.A. 8-1001 and
amendments thereto shall not be competent in evidence.
History: L. 1955, ch. 61, § 4; L. 1985,
ch. 48, § 6; L. 1985, ch. 50, § 3; July 1.
8-1005
Evidence; test results admissible in
prosecutions; weight to be given evidence. Except as provided by K.S.A.
8-1012 and amendments thereto, in any criminal prosecution for
violation of the laws of this state relating to operating or attempting
to operate a vehicle while under the influence of alcohol or drugs, or
both, or the commission of vehicular homicide or manslaughter while
under the influence of alcohol or drugs, or both, or in any prosecution
for a violation of a city ordinance relating to the operation or
attempted operation of a vehicle while under the influence of alcohol
or drugs, or both, evidence of the concentration of alcohol or drugs in
the defendant's blood, urine, breath or other bodily substance may be
admitted and shall give rise to the following:
(a) If the alcohol concentration is less
than .08, that fact may be considered with other competent evidence to
determine if the defendant was under the influence of alcohol, or both
alcohol and drugs.
(b) If the alcohol concentration is .08 or
more, it shall be prima facie evidence that the defendant was under the
influence of alcohol to a degree that renders the person incapable of
driving safely.
(c) If there was present in the
defendant's bodily substance any narcotic, hypnotic, somnifacient,
stimulating or other drug which has the capacity to render the
defendant incapable of safely driving a vehicle, that fact may be
considered to determine if the defendant was under the influence of
drugs, or both alcohol and drugs, to a degree that renders the
defendant incapable of driving safely.
History: L. 1955, ch. 279, § 1; L. 1967,
ch. 60, § 2; L. 1970, ch. 51, § 3; L. 1973, ch. 42, § 1; L. 1976, ch.
49, § 1; L. 1982, ch. 144, § 4; L. 1985, ch. 48, § 7; L. 1986, ch. 40,
§ 4; L. 1986, ch. 41, § 1; L. 1988, ch. 47, § 15; L. 1993, ch. 259, §
16; L. 1993, ch. 291, § 269; July 1.
8-1006
Same; submission of other evidence;
preservation of samples not required.
(a) The provisions of K.S.A. 8-1005,
and amendments thereto, shall not be construed as limiting the
introduction of any other competent evidence bearing upon the question
of whether or not the defendant was under the influence of alcohol or
drugs, or both.
(b) Nothing in this act shall require any
samples of blood, breath or urine to be preserved for or furnished to
the person for independent testing.
History: L. 1955, ch. 279, § 2; L. 1985,
ch. 48, § 8; L. 1985, ch. 50, § 4; L. 1986, ch. 40, § 5; L. 1988, ch.
47, § 16; L. 1994, ch. 319, § 3; May 19.
8-1007
Same; act supplemental; invalidity of part. This
act shall be construed as supplemental to existing legislation; and if
any clause, paragraph, subsection or section of this act shall be held
invalid or unconstitutional, it shall be conclusively presumed that the
legislature would have enacted the remainder of this act without such
invalid or unconstitutional clause, paragraph, subsection or
section.
History: L. 1955, ch. 279, § 3; June
30.
8-1008
Alcohol and drug safety action program; evaluation and
supervision of persons convicted of violation of 8-1567 or comparable
city ordinance; certification of programs; reports of chief judge;
fees, disposition.
(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 considers 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 community-based alcohol and drug safety action program
shall be certified either by the chief judge of the judicial district
to be served by the program 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 qualifications
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
rehabilitation 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. Recertification 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 certification 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 secretary 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
community-based alcohol and drug safety action program meets the
qualifications established by the judge or secretary and is capable of
providing, within the judicial district:
(1) The evaluations,
supervision and monitoring required under subsection (a);
(2) the alcohol and
drug evaluation report required under subsection (c) or (d);
(3) the follow-up
duties specified 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 performing 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 amendments thereto, or the ordinance of a city in this
state which prohibits the acts prohibited by that statute. The
presentence alcohol and drug evaluation 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, characteristics and alcohol or
drug problems, or both, and a recommendation concerning the amenability
of the defendant to education and rehabilitation. The presentence
alcohol and drug evaluation report shall include a recommendation
concerning the alcohol and drug driving safety education and treatment
for the defendant. The presentence alcohol 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 presentence alcohol and drug evaluation report
may also include appearing at sentencing and probation hearings in
accordance with the orders of the court, monitoring defendants 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 required 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). 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 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. The alcohol and drug evaluation report
shall be made available to the prosecuting attorney and shall be
considered by the prosecuting 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 amenability 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 alcohol 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,
$150 shall be assessed against the person by the sentencing court or
under the diversion agreement. The $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 authority 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 administrative 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 period 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 certification 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 pursuant to vouchers approved by the secretary of
social and rehabilitation services or a person designated by the
secretary.
History: L. 1982, ch. 144, § 10; L. 1983,
ch. 37, § 1; L. 1985, ch. 51, § 1; L. 1990, ch. 94, § 2; L. 1994, ch.
350, § 1; L. 1995, ch. 208, § 3; L. 1999, ch. 57, § 1; L. 2001, ch. 5,
§ 35; L. 2001, ch. 200, § 4; July 1.
8-1009
Detmination by prosecuting attorney of
whether diversion agreement to be allowed.
(a) Upon the filing of a first complaint, indictment or information
alleging a person has violated K.S.A. 8-1567, and amendments thereto,
when the acts prohibited by K.S.A. 8-1567, and amendments thereto,[*]
occur concurrently with any such alleged violation, and prior to
conviction thereof, the district attorney or county attorney shall
determine whether the defendant shall be allowed to enter into a
diversion agreement in accordance with this act.
(b) Upon the filing of a first complaint, citation or notice to
appear alleging a person has violated a city ordinance which prohibits
the acts prohibited by K.S.A. 8-1567, and amendments thereto, and prior
to conviction thereof, the city attorney shall determine whether the
defendant shall be allowed to enter into a diversion agreement in
accordance with this act.
History: L. 1982, ch. 144, § 11; July
1.
8-1010
Severability of Laws of 1982, ch. 144. If any clause,
paragraph, subsection or section of this act shall be held invalid or
unconstitutional it shall be conclusively presumed that the legislature
would have enacted the remainder of this act without such invalid or
unconstitutional clause, paragraph, subsection or section.
History: L. 1982, ch. 144, § 21; July
1.
8-1011
Immunity from liability for damage to vehicle
operated by or in control of person arrested or in custody. A law
enforcement officer, and the state or any political subdivision of the
state that employs a law enforcement officer, arresting or taking
custody of a person for any offense involving the operation of or
attempt to operate a vehicle while under the influence of alcohol or
drugs, or both, shall have immunity from any civil or criminal
liability for the care and custody of the vehicle that was being
operated by or was in the physical control of the person arrested or in
custody if the law enforcement officer acts in good faith and exercises
due care.
History: L. 1985, ch. 48, § 5; L. 1993,
ch. 259, § 3; July 1.
8-1012
Preliminary screening test of breath for alcohol
concentration; request by officer, grounds; notice required; refusal to
take test is traffic infraction; use of results of test; additional
tests. A law enforcement officer may request a person who is operating
or attempting to operate a vehicle within this state to submit to a
preliminary screening test of the person's breath to determine the
alcohol concentration of the person's breath if the officer has
reasonable grounds to believe that the person:
(a) Has alcohol in the person's body;
(b) has committed a traffic infraction; or
(c) has been involved in a vehicle accident or collision.
At the time the test is requested, the person shall be given oral
notice that:
(1) There is no right to consult with an attorney regarding whether to
submit to testing;
(2) refusal to submit to testing is a traffic infraction; and
(3) further testing may be required after the preliminary screening
test.
Failure to provide the notice shall not be an issue or defense in any
action. The law enforcement officer then shall request the person to
submit to the test. Refusal to take and complete the test as requested
is a traffic infraction. If the person submits to the test, the results
shall be used for the purpose of assisting law enforcement officers in
determining whether an arrest should be made and whether to request the
tests authorized by K.S.A. 8-1001 and amendments thereto. A law
enforcement officer may arrest a person based in whole or in part upon
the results of a preliminary screening test. Such results shall not be
admissible in any civil or criminal action concerning the operation of
or attempted operation of a vehicle except to aid the court or hearing
officer in determining a challenge to the validity of the arrest or the
validity of the request to submit to a test pursuant to K.S.A. 8-1001
and amendments thereto. Following the preliminary screening test,
additional tests may be requested pursuant to K.S.A. 8-1001 and
amendments thereto.
History: L. 1986, ch. 40, § 1; L. 1993,
ch. 259, § 4; L. 2005, ch. 172, § 3; July 1.
8-1013
Definitions. As used in K.S.A. 8-1001
through 8-1010, 8-1011, 8-1012, 8-1014, 8-1015, 8-1016, 8-1017 and
8-1018, and amendments thereto, and this section:
(a) "Alcohol concentration" means the
number of grams of alcohol per 100 milliliters of blood or per 210
liters of breath.
(b) (1) "Alcohol or drug-related
conviction" means any of the following: (A) Conviction of vehicular
battery or aggravated vehicular homicide, if the crime is committed
while committing a violation of K.S.A. 8-1567 and amendments thereto or
the ordinance of a city or resolution of a county in this state which
prohibits any acts prohibited by that statute, or conviction of a
violation of K.S.A. 8-1567 and amendments thereto; (B) conviction of a
violation of a law of another state which would constitute a crime
described in subsection (b)(1)(A) if committed in this state; (C)
conviction of a violation of an ordinance of a city in this state or a
resolution of a county in this state which would constitute a crime
described in subsection (b)(1)(A), whether or not such conviction is in
a court of record; or (D) conviction of an act which was committed on a
military reservation and which would constitute a violation of K.S.A.
8-1567, and amendments thereto, or would constitute a crime described
in subsection (b)(1)(A) if committed off a military reservation in this
state.
(2) For the
purpose of determining whether an occurrence is a first, second or
subsequent occurrence: (A) "Alcohol or drug-related conviction" also
includes entering into a diversion agreement in lieu of further
criminal proceedings on a complaint alleging commission of a crime
described in subsection (b)(1), including a diversion agreement entered
into prior to the effective date of this act; and (B) it is irrelevant
whether an offense occurred before or after conviction or diversion for
a previous offense.
(c) "Division" means the division of
vehicles of the department of revenue.
(d) "Ignition interlock device" means a
device which uses a breath analysis mechanism to prevent a person from
operating a motor vehicle if such person has consumed an alcoholic
beverage.
(e) "Occurrence" means a test refusal,
test failure or alcohol or drug-related conviction, or any combination
thereof arising from one arrest, including an arrest which occurred
prior to the effective day of this act.
(f) "Other competent evidence" includes:
(1) Alcohol concentration tests obtained from samples taken two hours
or more after the operation or attempted operation of a vehicle; and
(2) readings obtained from a partial alcohol concentration test on a
breath testing machine.
(g) "Samples" includes breath supplied
directly for testing, which breath is not preserved.
(h) "Test failure" or "fails a test"
refers to a person's having results of a test administered pursuant to
this act, other than a preliminary screening test, which show an
alcohol concentration of .08 or greater in the person's blood or
breath, and includes failure of any such test on a military
reservation.
(i) "Test refusal" or "refuses a test"
refers to a person's failure to submit to or complete any test, other
than a preliminary screening test, in accordance with this act, and
includes refusal of any such test on a military reservation.
(j) "Law enforcement officer" has the
meaning provided by K.S.A. 21-3110, and amendments thereto, and
includes any person authorized by law to make an arrest on a military
reservation for an act which would constitute a violation of K.S.A.
8-1567, and amendments thereto, if committed off a military reservation
in this state.
History: L. 1988, ch. 47, § 6; L. 1993,
ch. 259, § 5; L. 2005, ch. 86, § 1; July 1.
8-1014
Suspension and restriction of driving privileges
for test refusal, test failure or alcohol or drug-related conviction;
ignition interlock device. (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:
(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 provided by K.S.A. 8-1015, and
amendments thereto, for an additional 330 days;
(2) on the person's second, third or
fourth occurrence, suspend the person's driving privileges for one year
and, commencing 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 driving 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 suspend the
person's driving privileges for one year.
(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 authorized 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 period of restriction, the person shall
receive credit for any period of suspension 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 temporary driving privileges are issued
pursuant to K.S.A. 8-1020, 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 section, the division shall issue a copy of
the order imposing the restrictions which is required to be carried by
the person 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 employer's vehicle without an ignition
interlock device installed during normal 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.
History: L. 1988, ch. 47, § 7; L. 1989,
ch. 38, § 37; L. 1990, ch. 48, § 2; L. 1990, ch. 47, § 2; L. 1993, ch.
259, § 6; L. 1993, ch. 275, § 3; L. 1994, ch. 353, § 10; L. 1999, ch.
125, § 18; L. 2001, ch. 200, § 5; July 1.
8-1015
Same; authorized restrictions of driving
privileges; ignition interlock device.
(a) When subsection (b)(1) of K.S.A.
8-1014, and amendments 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 subsections (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) When a person has completed 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 maintained
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 expiration.
History: L. 1988, ch. 47, § 12; L. 1989,
ch. 38, § 39; L. 1989, ch. 38, § 40; L. 1993, ch. 259, § 7; L. 1994,
ch. 353, § 11; L. 1996, ch. 216, § 2; L. 2001, ch. 200, § 6; July
1.
8-1016
Same; ignition interlock devices; approval by
division; immunity from civil and criminal liability; rules and
regulations. (a) The secretary of revenue 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;
(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 devices under this section, the secretary of revenue
shall require that the manufacturer or the manufacturer's
representatives 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 downloading 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 interlock 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 qualification 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.
History: L. 1988, ch. 48, § 1; L. 1988,
ch. 47, § 18; L. 1994, ch. 319, § 4; L. 2001, ch. 200, § 7; July
1.
8-1017
Same; circumvention of ignition interlock device;
penalty.
(a) No person shall:
(1) Tamper with an ignition interlock
device for the purpose of circumventing it or rendering it inaccurate
or inoperative;
(2) request or solicit another to blow
into an ignition interlock device, or start a motor vehicle equipped
with such device, for the purpose of providing an operable motor
vehicle to a person whose driving privileges have been restricted to
driving a motor vehicle equipped with such device;
(3) blow into or start a motor vehicle
equipped with an ignition interlock device for the purpose of providing
an operable motor vehicle to a person whose driving privileges have
been restricted to driving a motor vehicle equipped with such device;
or
(4) operate a vehicle not equipped with an
ignition interlock device during the restricted period.
(b) Violation of this section is a class A, nonperson
misdemeanor.
(c) In addition to any other penalties provided by law, upon
receipt of a conviction for a violation of this section, the division
shall suspend the person's driving privileges for a period of two
years.
History: L. 1988, ch. 48, § 2; L. 1994,
ch. 353, § 12; July 1.
8-1019
Victim impact statement and restitution
requirements.
(a) As used in this section, "alcohol or drug-related offense"
means:
(1) A violation of K.S.A. 8-1567, and amendments
thereto, or any ordinance of a city or resolution of a county
prohibiting the acts prohibited by that statute; or
(2) any other offense arising out of the operation
or attempted operation of a motor vehicle while under the influence of
alcohol or drugs, or both.
(b) Prior to the sentencing of a person convicted of an alcohol
or drug-related offense which resulted in serious bodily injury to a
person or the death of a person, the court shall cause reasonable
attempts to be made to notify the victim or the victim's family, who
shall be given an opportunity to make a victim impact statement as to
the impact of the offense on the victim's life or the lives of the
victim's family members.
(c) Any court sentencing a person convicted of an alcohol or
drug-related offense which resulted in personal injury to a person, the
death of a person or injury to a person's property may require, in
addition to any other penalty provided by law, that the convicted
person pay restitution as a condition of probation or parole.
History: L. 1988, ch. 47, § 4; L. 1994,
ch. 319, § 5; May 19.
8-1020
Administrative hearing; requirements;
procedure.
(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 received 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 received 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 hearing, any temporary license issued pursuant to K.S.A.
8-1002, and amendments 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. Except 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 department 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 reasonable 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
certification 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 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 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 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 written
notice required by K.S.A. 8-1001, and amendments thereto;
(D) the
testing equipment used was certified by the Kansas department 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 procedures set
out by the Kansas department of health and environment;
(G) the test
result determined that the person had an alcohol concentration 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
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 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
concentration 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 conducting 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 forensic 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
preponderance 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 dismissed.
(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 administrative 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
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.
(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 subsection (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 privileges 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 temporary license provided for in K.S.A. 8-1002, and amendments
thereto, and in this section. The temporary license also shall be
subject to restriction, 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 temporary 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,
regarding 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.
History: L. 2001, ch. 200, § 1; July
1.
8-1021
Impoundment of motor vehicle for 8-1567 violation;
failure to pay fees or take repossession; disposition of vehicle. If
the owner of a motor vehicle which has been impounded pursuant to
K.S.A. 8-1567 or K.S.A. 2005 Supp. 8-1022, 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.
History: L. 2003, ch. 100, § 2; July
1.
8-1022
Permitting driving in violation of 8-1014;
penalties.
(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 reasonably 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
punishable 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 immobilization 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.
History: L. 2003, ch. 100, § 3; July
1.
