Legal Bulletin 2006-03 2006 Legislative Update

use. Also, the court is directed to consider any evidence that alleged paraphernalia can or has been used to store a controlled substance or to introduce a controlled substance into the human body as opposed to any legitimate use for the alleged paraphernalia.

Driving Without License, Second and Subsequent Offenses, Habitual Violator

An unfunded mandate on cities, this bill would increase the penalties for third or subsequent convictions for driving while suspended and driving while habitual. Such persons shall be sentenced to not less than 90 days and fined not less than $1,500. The person shall not be eligible for release on probation, suspension, or reduction of sentence or parole until the person has served at least 90 days’ imprisonment. The 90 days’ imprisonment can be served in a work release program or house arrest program only after the person has served 48 consecutive hours’ imprisonment.

Battery Against a Law Enforcement Officer

The crimes of battery against a law enforcement officer and aggravated battery against a law enforcement officer are expanded and penalties increased. The bill expands coverage of both laws to uniformed campus police. Battery to a uniformed officer causing physical harm while in the course of the officer’s duties is a level 7 person felony. Aggravated battery of a law enforcement officer causing bodily harm with a deadly weapon or in a manner in which great bodily harm or death can be inflicted is raised from a level 6 to a level 5 person felony.

Warrantless Searches

The bill amends K.S.A. 22-2501(c) and brings Kansas in line with the rest of the world by allowing officers to search cars incident to arrest for evidence of "a" crime as opposed to evidence of "the" crime. The long-awaited legislative change does away with State v Anderson, 259 Kan. 16 (1996) and bring Kansas in line with New York v. Belton, 453 U.S. 454 (1980).

Preliminary Breath Test-Suspicion

The bill amends K.S.A. 8-1012 to clarify that an officer must have a reasonable "suspicion" rather than "grounds" to believe a person has been operating a motor vehicle under the influence of alcohol or drugs before requiring a person to submit a preliminary breath screening test.

SB 418 and HB 2118

These two bills adopt the personal and family protection act, also known as the concealed carry law. The bill authorize the Kansas Attorney General, beginning in January of 2007, to issue four-year licenses to certain persons to carry concealed handguns. The bill establishes qualifications for licensure and procedures and fees for obtaining a license. The bill specifically preempts local regulation of carrying concealed weapons.

Key provisions of the bill include:

Reciprocity

$ Concealed carry licenses issued by another state or the District of Columbia are valid in the State of Kansas if the Attorney General determines that standards for issuance, in other states and the District, are equal to or greater than, standards for concealed carry in Kansas. These standards only apply to licensees who are not residents of Kansas. The Attorney General is required to maintain and publish a list of states that meet, or exceed, Kansas standards.

Qualifications

In order to qualify for licensure a person has to:

$ Be a U.S. citizen who is a resident of the county where the application is filed, and for at least six months, a Kansas resident;

$ Be at least 21 years of age;

$ Be free from any physical infirmity that prevents safe handling of a weapon; and

$ Desire a legal means to carry a concealed weapon for lawful self-defense.

$ In addition, applicants for licensure would have to present evidence of completion of a "weapons safety and training course" approved by the Attorney General, law enforcement agency, or the National Rifle Association (NRA). Applicants must pay for their training course.

Disqualifications

The bill would disqualify from licensure anyone:

$ Who had ever been convicted, placed on diversion, or adjudicated for a felony (adult or juvenile) in any jurisdiction;

$ Who has during the five years immediately preceding the date the application is submitted: convicted or placed on diversion, in this or any other jurisdiction, for an act that constitutes a misdemeanor under the provisions of the uniform controlled substances act or adjudicated, in this or any other jurisdiction, of committing as a juvenile an act that would be a misdemeanor under such act if committed by an adult;

$ Who had been determined to be disabled under the Act for obtaining a guardian or conservator unless the person was ordered restored to capacity three or more years before applying for a license;

$ Subject to a restraining order under the Protection from Abuse Act or the Protection from Stalking Act;

$ Who is in contempt of court in a child support proceeding;

$ Who has been dishonorably discharged from military service; and

$ Who has been charged with a crime which would render the applicant, if convicted, ineligible for a license or, if so charged, final disposition of the charge has occurred and no other charges are pending which would cause the applicant to be ineligible for a license;

$ Placed on a diversion or convicted two or more times for driving under the influence of alcohol or drugs; or

$ Convicted, placed on diversion, or adjudicated (adult or juvenile) of a misdemeanor under any municipal ordinance or under Articles 34 (crimes against persons) or 35 (sex offenses) of Chapter 21 of Kansas law or a similar law in any jurisdiction. The Attorney General has access to expunged criminal records for purposes of determining a person’s qualification for licensure.

$ Who has been ordered by a court to receive treatment for mental illness pursuant to K.S.A. 59-2966, and amendments thereto, or for an alcohol or substance abuse problem pursuant to K.S.A. 59-29b66, and amendments thereto, or, if a court has ordered such treatment, has not been issued a certificate of restoration and amendments thereto, not less than five years before the date of the application.

Notifications

$ Failure to notify the Attorney General within 30 days of a change of permanent address, or the loss or destruction of a license, could result in imposition of a maximum $100 fine, or a maximum 180-day license suspension.

$ The Attorney General is required to notify licensees in writing at least 90 days prior to license expiration.

$ The sheriff of a county, where the issuance of a restraining order under the Protection from Abuse Act or the Protection from Stalking Act would prohibit the issuance of a license for concealed carry, is required to notify the Attorney General immediately upon receipt of such issuance, and the Attorney General is required to revoke the concealed carry license.

Training

Procedures and standards for the weapons safety and training course will be established in rules and regulations of the Attorney General. Those standards must include:

$ A requirement that trainees receive training in the actual firing and safe storage of weapons and instruction in state laws regarding the carrying of concealed weapons and the use of deadly force;

$ General guidelines for courses;

$ Qualifications of instructors; and

$ A requirement that the course be a weapons course:

$ Certified or sponsored by the Attorney General or the NRA; or

$ Certified or sponsored by a law enforcement agency, college, private or public institution or organization, or weapons training school and taught by instructors certified by the Attorney General or the NRA.

The following would constitute evidence of satisfactory completion of an approved weapons safety and training course:

$ Evidence of completion of the course in the form provided by rules and regulations adopted by the Attorney General; or

$ An affidavit from the instructor, school, club, organization or group that conducted or taught the course attesting to completion by the application.

Prohibited Places

Licensees could not carry concealed weapons into:

$ A place in which a common nuisance activity is maintained (illegal gambling, promotion of obscenity, promotion of prostitution, and violations of drug, alcohol, and tobacco laws);

$ A police, sheriff, or Highway Patrol station;

$ A detention facility, prison, or jail;

$ A courthouse;

$ A polling place on the day an election is held;

$ A meeting of the governing body of a county, city, or other subdivision;

$ Any city hall;

$ A courtroom (unless the licensee is a judge or unless authorized by the judge);

$ A school, community college, college, university, or professional athletic event not related to firearms;

$ Any portion of a drinking establishment, except that this shall not apply to a restaurant;

$ The State Fairgrounds;

$ Any state office building;

$ Any community college, college, or university facility;

$ Any elementary or secondary school attendance center, administrative office, services center or other facility;

$ Any athletic event not involving firearms sponsored by private and public schools and colleges (an athletic event is defined as athletic instruction, practice or competition held at any location

$ and including any number of athletes);

$ Any professional athletic event not involving firearms;

$ Any place where the carrying of firearms is prohibited by state or federal law;

$ Any public library operated by the State or by any political subdivision;

$ Any day care home or any group day care home as defined in Kansas Administrative regulation 28-4-113;

$ Any church or temple;

$ Any place in violation of K.S.A. 21-4218, and amendments thereto.

$ Any childcare center or preschool;

$ Any child exchange and visitation center; or

$ Any community mental health center or state hospital.

$ Any public or private business open to the public where a sign is posted stating that carrying a concealed weapon on the premises is prohibited.

Carrying concealed weapons in prohibited places is a class A misdemeanor.

Carrying While Intoxicated

$ A licensee carrying a concealed weapon while under the influence of alcohol or drugs, or both, is guilty of a class A nonperson misdemeanor. HB 2118 adds a provision for admission of breath, blood or urine tests to prove intoxication upon an officer's compliance with an implied consent advisory similar to K.S.A. 8-1001.

Fees

$ The initial license fee is up to $150. The license renewal fee is up to $100. A late fee of $15 applies to license renewals made up to six months after expiration of the license. The fee for replacement of a lost or destroyed license is$15.

$ Retired law enforcement are required to pay an original license fee of $100, which fee shall be in the form of two cashier checks or money orders, $40 payable to the sheriff of the county where the applicant resides and $60 payable to the attorney general, to be forwarded by the sheriff to the attorney general.

$ Fees received by the Attorney General are used for administration of the Act with any balance allocated to the county Law Enforcement Equipment Fund (20 percent) and the Forensic Laboratory and Materials Fee Fund (80 percent). The sheriff is required to forward to the Attorney General $110 of the original license fee, and $50 of the renewal fee. The cost of taking the applicant’s fingerprints would be included in the portion of the fee kept by the sheriff. All fees retained by the sheriff are credited to a special fund of the sheriff’s office which shall be used solely for law enforcement and criminal prosecution purposes and which shall not be used as a source of revenue to meet normal operating expenses of the sheriff’s office.

Information on Licensees

$ The Attorney General is required to maintain an automated listing of license holders and “pertinent information.” That information is available, upon request, at all times to all law enforcement agencies in Kansas, but no one else.

Documents Required

$ At the option of the licensee, they can either carry a separate concealed carry license, or have the concealed carry license noted on their drivers' licenses or state-issued ID card. Failure to carry the concealed weapon license when carrying a concealed weapon, or failure to display the license (and proper identification if the concealed carry license is not noted on the drivers' license or ID car) upon demand by a law enforcement officer is prohibited. The license of any person who violates this provision shall be suspended for not less than 30 days upon the first violation and shall be revoked for not less than five years upon the second or a subsequent violation.

SB 366

This bill makes several changes to the criminal code. Among them are:

Use of Force

The bill authorizes a person who is not engaged in an unlawful activity and who is attacked in a place where the person has the right to be, to stand his or her ground and fight back with no duty to retreat. The bill also amends the statutes on use of force in defense of a person, dwelling, or occupied vehicle by explicitly adding the authority for a person to use deadly force against another, if the person reasonably believes death or great bodily harm to the person or a third person is imminent. The bill contains statements that nothing in the bill should be construed to require that a person to retreat if the person is using force to protect themselves, a third person, their dwelling, or an occupied vehicle. The bill immunizes a person from criminal prosecution and civil action for the use of force, unless the force is used against a law enforcement officer and the law enforcement officer is in the act of performing his or her official duties and the officer identifies himself or herself in accordance with the law, or the person using force knew or reasonably should have known the person was an officer. Law enforcement agencies are permitted to use standard procedures to investigate the use of force, but are not permitted to arrest a person for using force unless it determines there is probable cause to arrest.

Gangs

The bill also establishes the Criminal Street Gang Prevention Act. It defines a criminal street gang and street gang activities, membership, and association. It creates the new severity level 6, person felony crime of recruiting criminal street gang membership That act constitutes "causing, encouraging, soliciting, or recruiting another person to join a criminal street gang." In addition, the bill defines criminal street gang intimidation as communicating, directly or indirectly, with another, any threat of person injury to another; or damage to property with the intent to deter a person from withdrawing from the gang or retaliation against an individual from having withdrawn from a criminal street gang. Criminal street gang intimidation is a severity level 5, person felony. The bill also would clarify the definition of criminal street gang now contained in the criminal common nuisance law.

Dollar Threshold-Misdemeanor Felony

The bill raises the dollar threshold level from $500 to $1,000 for 20 different criminal offenses to distinguish a misdemeanor from a felony. In 2004, this same threshold level distinction was made for the crime of theft.

Illegal Drug Manufacturing-Drug Paraphernalia

The bill amends the definition of "drug paraphernalia" in K.S.A. 65-4510 to exclude "products" from the definition. The amendment addresses the ruling in State v. Frazier, 30 Kan.App.2d 398 (2002), which held that persons convicted of possession of ephedrine or pseudoephedrine, ingredients used in the manufacture of methamphetamine (a drug severity level 1 crime) had to be sentenced for possession of drug paraphernalia (a drug severity level 4 crime). The bill provides that such a crime would be considered a drug severity level 2 crime.

Sentencing Guidelines

The bill amends the Kansas sentencing guidelines law dealing with upward departures to add a new aggravating factor when the crime involved two or more participants and the defendant played a major role in the crime as an organizer, leader, recruiter, manager or supervisor. The bill also adds a new mitigating factor for defendants who have provided substantial assistance in the investigation or prosecution of another person who is alleged to have committed an offense. In considering this mitigating factor, the court may consider the following: (1) The significance and usefulness of the defendant’s assistance; (2) The truthfulness, completeness and reliability of any information; (3) The nature and extent of the defendant’s assistance; (4) Any injury suffered, or any danger of risk of injury to the defendant or the defendant’s family; and (5) The timeliness of the assistance.

II - Bills Summaries by Subject

Adult Abuse, Neglect or Exploitation

HB 2105

In response to the Arlan and Linda Kaufman case involving the group home in Newton, this bill creates within the Office of the Attorney General the "Abuse, Neglect and Exploitation of Persons Unit" At the unit’s initiative, the unit would have access to all records of reports, investigation documents, and written reports of findings received or generated by the Department of Social and Rehabilitation Services, the Department on Aging, or the Department of Health and Environment related to confirmed cases of abuse, neglect, or exploitation of persons or cases in which there is reasonable suspicion to believe abuse, neglect, or exploitation of persons has

occurred.

Alcohol, Cigarettes & Tobacco

SB 297

This bill, among authorizing consumption of alcohol at the state fair and allowing internet wine sales, changes the club and drinking establishment act and the open container law contained in 8-1599 to allow drinking establishments to permit legal patrons to remove one or more opened containers of alcoholic liquor from the licensed premises, if such containers are the original containers and securely resealed, placed in a tamper-proof transparent bag and contains a dated receipt for the unfinished container. Under Kansas statutes, establishments may only sell by-the-drink, except wine may be sold by-the-bottle or by-the-carafe. This is the only exception. If the motor vehicle is not equipped with a trunk, then the unfinished container must be placed behind the last upright seat or in an area not normally occupied by the driver or the passenger.

HB 2916

This bill amends K.S.A. 8-2,144, 8-1014, 8-1015 and 65-1,107 and K.S.A. 2005 Supp. 8-1001,

8-1012, 21-3610c and 41-727, all dealing with alcohol-related violations. Key provisions of the bill do the following:

$ Change the time for suspension of a person’s driver’s license on a second, third or fourth occurrence of a DUI to not less than a year.

$ Proof of the installation of an ignition interlock device for one full year of the restriction period to the Division of Motor Vehicle is required before a person’s driving privileges could be restored.

$ The bill would amend the Driving Under the Influence (DUI) law regarding commercial driving licenses to be consistent with the penalties set out in K.S.A. 8-1567.

$ The bill would raise the penalty for unlawfully hosting minors consuming alcoholic liquor or cereal malt beverages from a class B person misdemeanor to a class A person misdemeanor. The minimum fine would be raised from the current $200 to $1,000.

$ The bill also amends K.S.A. 8-1012 to add an implied consent provision to the law dealing with preliminary testing for the presence of alcohol and drugs in a person. The bill amends the law to clarify that an officer must have reasonable grounds to believe a person has been operating a motor vehicle under the influence of alcohol or drugs before requiring a person to submit a preliminary breath screening test.

$ The bill also amends the law regarding cereal malt beverages so that a person, under 21, could be requested to submit to a preliminary screening breath test if a law enforcement officer has reasonable grounds to believe the person has alcohol in their body. The results of the test or a refusal to submit to the test would be admissible in court but would not be per se proof of a violation.

Animals

SB 408

This bill adopts "scruffy's law" and makes intentional and malicious killing, injuring, maiming, torturing, burning or mutilating of any animal an off grid nonperson felony subject to a penalty of not less than 30 days or more than one year imprisonment and a fine not less than $500 nor

more than $5,000. Persons convicted of this offense must have a psychological evaluation prepared by the court during the mandatory 30 days imprisonment and complete anger management. Other intentional acts of cruelty become a nonperson felony subject to five day's imprisonment on a second or subsequent offense. The bill also changes the penalty for harming a police dog to an off grid nonperson felony subject to a sentence of not less than 30 days or more than one year and a fine of not less than $500 to not more than $5,000. Psychological evaluation and anger management are also required for this crime. The crime of illegal ownership of a dog under K.S.A. 21-4317 is expanded to cover any animal, and to apply to persons convicted of cruelty to animals.

SB 578

This bill adopts new provisions regarding the keeping of dangerous regulated animals. "Dangerous regulated animals" are the live or slaughtered parts of lions, tigers, leopards, jaguars, cheetahs and mountain lions or any hybrid thereof; bears or any hybrid thereof; and non-native venomous snakes. The bill would make it unlawful to possess, slaughter, sell, purchase or otherwise acquire a dangerous regulated animal except under the guidelines set forth in the bill. Basically, only zoos and persons holding a USDA wildlife rehabilitator's or exhibitors licenses are authorized to have such animals.

Crimes and Criminal Procedure

SB 25

This bill creates the off grid person felonies of terrorism and illegal use of weapons of mass destruction. Terrorism is defined as: "the commission of, the attempt to commit or the conspiracy to commit any felony with the intent to intimidate or coerce the civilian population, influence government policy by intimidation or coercion or to affect the operation of any unit of government." Illegal use of weapons of mass destruction is: "(1) Intentionally, knowingly and without lawful authority, developing, producing, stockpiling, transferring, acquiring, retaining or possessing any:

(A) Biological agent, toxin or delivery system for use as a weapon;

(B) chemical weapon; or

(2) knowingly assisting a foreign state or any organization to do any such activities as specified in paragraph (1); or

(3) attempting, threatening or conspiring to do any such activities as specified in paragraph (1) or (2). There are exceptions for military operations, law enforcement purposes including any domestic riot control purpose and to use such an "individual self-defense device," including pepper spray or chemical mace. Those who aid or abet terrorists are guilty of a severity level one person felony. The new crimes do not have a statute of limitations, and have their own conspiracy and solicitation provisions. Both are inherently dangerous felonies for the purpose of the felony murder rule, and any money or property seized is subject to forfeiture. The bill also amends K.S.A. 21-3301, 21-3302, 21-3303, 22-2515 and 60-4104 and K.S.A. 2005 Supp. 21-3106, 21-4706 and 22-3101 to accommodate these new crimes.

SB 51

This bill creates the new crime of trafficking in counterfeit drugs, which is "intentionally manufacturing, distributing, dispensing, selling or delivering for consumption purposes, or holding or offering for sale, any counterfeit drug." The severity of the crime depends on the value of the counterfeit drugs: less than $500 is a class A nonperson misdemeanor, over $500 but less than $25,000 is a severity level 9, nonperson felony and over $25,000 is a severity level 7, nonperson felony.

SB 196

This bill amends K.S.A. 12-4516a, 50-702, 60-4104 and 60-4105 and K.S.A. 2005

Supp. 21-4018, 21-4603d and 22-2410 with the aim to protect to personal information. It creates new crimes for "knowingly and with the intent to defraud, possess or use a scanning device to access, read, obtain, memorize or store, temporarily or permanently, information encoded on the computer chip or magnetic strip or stripe of a payment card." The bill also prohibits possession of a "reencoder" to place encoded information on the computer chip or magnetic strip or stripe of a payment card or any electronic medium that allows an authorized transaction to occur. Such devices are subject to forfeiture. The bill also prohibits disclosure of an individual's social security number if included in a document that contains the individual's name, address, phone number or e-mail address or other personal identifiers unless required by federal law. There are several exceptions, including court records. Violation of this provision gives rise to civil cause of action and a penalty of up to $1000 per violation. The bill also requires notifications to affected persons when a security breach results in unauthorized disclosure of personal information. The bill also waives the filing fee for expungement if the petitioner was a victim of identity theft. The bill also increases the severity level of identity theft from a level 8 nonperson felony to a level 5 nonperson felony if the monetary loss to the victim or victims is more than $100,000.

SB 366

See the summary of this bill in Part I, above.

SB 431

See the summary of this bill in Part I, above.

SB 506

This bill amends several provisions of the Kansas Offender Registration Act. Among its provisions are:

Restrictions on Location of Sex Predator Release Facilities

$ The bill prohibits the location of transitional release or conditional release facilities for sexually violent predators within 2,000 feet of facilities where children are located. Transitional facilities and conditional release facilities for violent sex predators are be required to comply with local zoning, building code and subdivision regulations.

Prohibition of Local Restrictions on Sex Offender Residence

$ The bill restricts cities and counties from adopting residential restrictions on sex offenders (e.g. no sex offender may reside within 2,000 feet of a school). This provision would expire on June 30, 2008.

Sex Offender Annual ID Cards

$ The bill requires the Division of Vehicles of the Kansas Department of Revenue to issue "readily distinguishable" drivers’ licenses and identification cards to registered sex offenders on an annual basis. The bill requires sheriffs, prison staff and others including the court to inform sex offenders of their responsibility to obtain an annual identification card or drivers’ license.

Periodic Reporting of Sex Offenders to Sheriff

$ The offender is required to report in person during the month of his or her birthday, and during the six months following, to the sheriff’s office in the county where the offender resides for the purpose of updating information, including a photograph. On these occasions, the offender is required to pay $20 to the sheriff.

Lifetime Registration

The bill would add the following crimes where the victim is less than 14 years of age requiring lifetime registration for the offender:

$ Aggravated trafficking;

$ Rape;

$ Aggravated indecent liberties with a child;

$ Aggravated criminal sodomy;

$ Promoting prostitution; and

$ Sexual exploitation of a child.

Juvenile Sex Offender Registration

A juvenile offender adjudicated for sexually violent crimes and the crime is not an off grid felony or a severity level 1 felony, may be:

$ Required to register by the court;

$ Not be required to register by the court; or

$ Be required to register with the sheriff but the registration information would not be subject to inspection by the public or posted on the Internet.

$ The juvenile subject to registration would be required to provide a copy of the court order making the registration non-public to the sheriff’s office at registration. A copy of the judge’s order would then be sent by the sheriff to the Kansas Bureau of Investigation.

Registration Requirements For Crimes Committed with a Deadly Weapon

$ The bill adds a new registration requirement for persons who commit person felonies when a court makes a finding that a deadly weapon was used.

Registration Length–Offenders W ho Move to Kansas

$ The bill requires a person convicted of a crime and required to register from another state who moves to Kansas to register according to that other state or Kansas, whichever registration length of time is longer.

HB 2554

This bill makes it impossible to expunge DUI convictions and diversions on an after July 1, 2006. The bill also significantly expands collection of DNA samples by the KBI. On and after January 1, 2007 through June 30, 2008, any adult arrested or charged or juvenile placed in custody for or charged with the commission or attempted commission of any person felony or drug severity level 1 or 2 felony shall be required to submit a DNA sample at the same time such person is booked into jail. On and after July 1, 2008, except as provided further, any adult arrested or charged or juvenile placed in custody for or charged with the commission or attempted commission of any felony shall be required to submit a DNA sample at the same time such person is booked into jail.

HB 2555

This bill extends the Kansas Criminal Justice Recodification, Rehabilitation, and Restoration Committee (the 3-Rs Committee) until March 31, 2007. It also extends the time for submitting the final report of the 3-Rs Committee by one year to January 9, 2007.

HB 2576

This bill adopts significant changes regarding sex offenders. It establishes mandatory minimum sentences for first time sex offenders, makes a number of other changes regarding sex offenders, and limit diversions for the crime of domestic battery. The bill establishes a mandatory minimum sentence of 25 years without parole (Hard 25) on first-time sex offenders where the offender is an adult and the victim is a child. Downward departures can occur for substantial and compelling reasons. The bill establishes a minimum 40-year sentence (Hard 40) for second time sex offenders where the offender is an adult; and a life sentence without the possibility of parole for third-time and subsequent sex offenders i.e. aggravated habitual sex offenders. The bill also establishes life-time supervision for the sex offenders noted above who are released from prison by the Kansas Parole Board and life-time electronic monitoring of those offenders. Other provisions include:

Victim’s Rights and Prosecutor Duties

The bill would amend K.S.A. 22-3436 dealing with victims rights in regard to person, sex and family crimes and prosecutor duties to require a prosecutor to notify the victim or victim’s family of any proposed plea agreement and the right to attend any hearing where a plea agreement is reviewed or accepted and the right to make written arguments prior to the hearing.

Annual Reporting to Sheriff-New Photo

A registered sex offender is required to report to the local sheriff’s office annually during the offender’s birth month and pay a $20 registration fee each year to the sheriff. At this time, the sheriff would take an updated photograph of the offender. The offender then reports for the next six months on days and times determined by the local sheriff’s office.

New Crimes Created and More Severe Penalties For Existing Crimes

$ The bill would create the new crime of unlawfully tampering with electronic monitoring equipment as a level 6, nonperson felony. The bill would create the new crime of electronic solicitation defined to include communication conducted through the telephone, internet or by other electronic means which involves enticing or soliciting a person whom the offender believes to be a child to commit or submit to an unlawful sexual act. If the child is believed to be under 14 years of age, the penalty would be a level 1, person felony. If the child is believed to be 14 or 15 years of age, the penalty would be a level 3, person felony.

$ The penalty for the crime of failure to register or otherwise comply with the Kansas Offender Registration Act would be increased from a severity level 10 nonperson felony to a severity level 5 person felony and a new violation would occur after 31 days has elapsed.

$ The crime of aiding a felon would be amended to provide a more severe penalty, a level 5 person felony, for anyone who aids a person required to register under the Kansas Offender Registration Act. The crime would involve knowingly harboring, concealing, or otherwise aiding a person in avoiding compliance with the Kansas Offender Registration Act.

$ The sentence for an offender who commits the crimes related to the Registration Act and aiding a felon in regard to registration would be presumptive imprisonment unless the court finds on the record that an appropriate treatment program exists which would be more effective than prison or the nonprison sentence will serve community safety.

Domestic Battery-Other Changes

The crime of domestic battery would be amended to limit diversions to two during a five-year period. The bill also would require mandatory treatment for person convicted of three or subsequent domestic battery crimes and would require a person who does not enter into a treatment program to serve not less than 180 days nor more than a year of imprisonment.

HB 2617

This bill amends K.S.A. 21-3843 to expand the crime of violation of a protective order to violation of an order issued "at any . . . time during the criminal case." Prior law limited the possible orders to one issued "during pretrial release, diversion, probation, suspended sentence and postrelease supervision."

HB 2761

This bill amends K.S.A. 2005 Supp. 74-7305(3) to allow the crime victim's compensation board to reduce an award "because the victim was likely engaging in, or attempting to engage in, unlawful activity at the time of the crime upon which the claim for compensation is based." This reduction will not apply to a victim of domestic abuse or sexual assault.

HB 2928

This bill aims to protect domestic violence and stalking victims. The bill becomes effective on January 1, 2007. It allows bona fide victims, or persons acting on their behalf, to obtain a confidential address designated by the Secretary of State’s office to be used as a substitute mailing address. The Secretary of State shall not disclose the victim's true address except: (a) If requested by a law enforcement agency, to the law enforcement agency in accordance with procedures prescribed by rules and regulations; (b) if directed by a court order, to a person identified in the order; or (c) if requested by a state or local agency, to verify the participation of a specific program participant, in which case the secretary may only confirm participation in the program. Enrollment in the confidential address program will not be made directly to the Secretary of State, but through enrollment agents (possibly shelter workers, BWTF volunteers or police officer) designated by the Secretary.

The bill also prohibit an employer from discharging or in any manner discriminating or retaliating against an employee who is a victim of domestic violence or a victim of sexual assault for taking time off from work to obtain or attempt to obtain any relief. Relief would include: to seek a temporary restraining order, restraining order or other injunctive relief; to seek medical attention for injuries caused by domestic violence or sexual assault or to obtain services from a domestic violence shelter, program or rape crisis center or to settle matters, including, but not limited to court appearances, in the aftermath of domestic violence or sexual assault. The employee is subject to certain notification and documentation conditions.

Emergency Management

HB 2982

This bill creates the Kansas Intrastate Emergency Mutual Aid Act. The bill provides for a standardized system for mutual assistance among the participating political subdivisions, in the prevention of, response to, and recovery from, any disaster that results in a formal state of emergency. The Division of Emergency Management in the Adjutant General’s Office is required to develop comprehensive guidelines and procedures for implementation of the Act.

All political subdivisions in Kansas are part of the Act but have the option to opt out of the Act by resolution at any time. Preexisting, supplemental or subsequent agreements between a participating subdivision and another subdivision are not prohibited.

Firearms

SB 418 and HB 2118

See the summary in Part I, above.

Juveniles

SB 47

This bill amends several statutes regarding the juvenile justice system in an effort to reduce perceived racial, geographic and other biases in the juvenile justice system

SB 261

This bill recodifies and makes substantial changes to the juvenile justice code. A number of policy changes are contained in the recodification. A majority of the changes are technical, including changes in style, language, grammar, terminology, cross-references and other similar changes. Finally, the act contains a number of organizational changes which are intended to implement the goal of reorganizing the code in a more logical manner. The following is a brief description of the policy changes, with the section or sections of the code in which the policy changes are found.

Statute of Limitations

$ The statute of limitations would be changed generally to parallel the adult criminal code and to lengthen the statute of limitations in certain instances.

Restitution

$ Termination of jurisdiction would have no effect on the juvenile offenders continuing responsibility to pay restitution. (Section 4)

Court Records

As to court records of juveniles:

$ Court appointed special advocates and juvenile community corrections officers are added to the list of persons who may inspect the social file;

$ There are time and age changes with respect to records in the custody of the Kansas State Historical Society;

$ There are limitations on the victim’s records going to the Kansas Racing Commission. (Section 9)

$ Juvenile community correction officers are added to the list of persons who may obtain law enforcement and municipal court records of juveniles under 14 years of age. (Section 10)

$ Disclosure of diagnostic, treatment or medical facilities records of juvenile offenders by the Juvenile Justice Authority and the Department of Corrections are authorized to the extent necessary for treatment of the juvenile. (Section 11)

Rape-No Expungement

$ Rape would be added to the list for acts committed by a juvenile which may not be expunged. (Section 12)

Sexually Violent Crimes-School Attendance Center

$ If a juvenile commits a sexually violent offense, the juvenile may not attend the same school (attendance center) as the victim. In school districts where there is only one attendance center available for both the juvenile offender and the victim, a court hearing is required to determine what school the juvenile offender shall attend.

Fingerprinting and Photos

$ Fingerprinting and photographing of alleged juvenile offenders is allowed, but under more limited circumstances than under current law. (Section 13)

Care Reimbursement

$ Reimbursement of expenses of care or custody of juveniles is changed to state that when a county has paid expenses for an alleged or adjudicated juvenile offender, those expenses may be assessed to the person legally responsible for the care of the juvenile. The hearing for challenging such an assessment is no longer automatic, but must be requested. (Section 15)

Insurance Portability

$ Language is inserted to comply with the requirements of the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA). (Section 16)

AIDS Testing

$ Parents of minor victims are added to the list of persons who get notice of availability of AIDS testing and are given the right to request the person charged be tested. (Section 17)

Alibi or Mental Disease

$ The time requirement for giving notice of alibi or mental disease or defect is changed from within five days of the initial appearance, to not less than 10 days prior to the adjudicatory hearing. (Section 29)

Taking into Custody

$ Juvenile Justice Authority supervising officers are added to the list of persons who may take a juvenile into custody. (Section 30)

Adoption and Safe Families

$ Language implementing the Adoption and Safe Families Act of 1997 is inserted throughout the code. (Sections 31, 34, 35, 61, 67 and 68)

Self-Destructive Behavior

$ The current requirement that if a juvenile is taken into custody for exhibiting assaultive or destructive behavior, such behavior must continue after the juvenile is taken into custody for the juvenile to be placed in a detention facility, is removed and self-destructive behavior is added to the list of behaviors. (Section 31)

Service of Process

$ The service of process section is changed to refer to service of process under the Code of Civil Procedure. This would be a slight expansion of present authority but would simplify service and keep the code consistent with future changes in the Code of Civil Procedure. (Section 38)

Name of Hearing

$ The name of the hearing held under the current K.S.A. 38-1633 is changed from "pre-trial hearing" to "first-appearance." (Section 44)

Law Officer-Issue Summons

$ Law enforcement officers are allowed to issue a summons under the immediate intervention program statutes if the local prosecutor has adopted policies and guidelines giving that authority. (Section 46)

Prosecution as Adult

$ The designee of the county or district attorney (not just the county or district attorney) is authorized to file a motion for prosecution as an adult. If the juvenile is not convicted, the authorization for prosecution as an adult does not automatically apply to future prosecutions. (Section 47)

Competency

$ The court appoints one, rather than two, licensed psychiatrists or psychologists to examine a juvenile to determine competency and the court is allowed to excuse the alleged juvenile offender from the hearing if it would be injurious to his or her health to attend. (Section 48)

Best Interests of Victim

$ The best interests of the victim is added to factors to consider in deciding whether a hearing should be closed. Currently, only the best interests of the alleged juvenile offender are mentioned in the statute. (Section 53)

Sentencing Risk Assessment

$ The statutory requirement for designation of a statewide sentencing risk assessment tool is eliminated and the statute is changed to allow the court to address expenses with reference to all four information gathering tools, not just psychological evaluations. (Section 60)

Restitution Orders-Judgements

$ Several policy changes are made in the sentencing area. Restitution orders are declared to be judgements, which may be enforced by civil process, even after termination of the court’s jurisdiction over the juvenile; the maximum amount of a fine would be increased from $250 to $1000 and a fine would be considered a judgement against a juvenile offender that may be enforced by civil process, even after termination of the court’s jurisdiction. (Section 61)

Sanctions’ House

$ The term for the initial commitment to a sanctions’ house is increased from 7 to 28 days. (Section 61)

Foster Parents

$ The provisions relating to foster parent reporting is made discretionary. (Section 65)

Probation or Placement Violation Hearings

$ The requirement that a hearing automatically be held on an alleged probation or placement violation is changed. The hearing will be held only if requested by the commissioner, a parent, one of the parties or on the court’s own motion. (Section 68)

Prior Criminal History

$ Prior person or nonperson felonies are counted the same as two misdemeanors. (Section 69)

Rules and Regulations Required

$ The Juvenile Justice Authority is required, rather than authorized, to adopt rules and regulations relating to good time credits and good time credits would be limited to 20 percent of the sentence length. (Section 70)

Admission Date

$ The date of admission to a Juvenile Justice Authority facility is required to be no more than five days after the notice to the committing court. (Section 73)

Notification Changes

$ Non-drug crimes ranked a severity level 4 or 5 and drug crimes ranked at severity level 3 are added to the list of crimes which, if committed by the juvenile offender, would require the Commissioner to give notice to certain persons, if the juvenile is still required to attend school and his or her release is nearing. In addition, the victim would be added to the list of persons who are to receive notice of discharge. (Section 77)

Appeals from Magistrate

$ Appeals from district magistrate judges are by trial de novo unless parties agree to a de novo review on the record of the proceedings. The right of the juvenile to call witnesses on appeal would be eliminated. (Section 82)

Good Time Credits

$ Good time credit calculations are calculated according to procedures contained in rules and regulations adopted by the Commissioner

SB 62

This bill adopts the grandparents as caregivers act, which allows the secretary of social and rehabilitation services to offer public assistance to grandparents 50 years of age or older who are raising their grandchildren if they grandparent meets certain income guidelines.

HB 2352

This bill adopts wholesale revisions to the CINC code, also known as the "Kansas code for care of children," K.S.A. 38-1501, et. seq. The goals of this recodification are similar to amendments to the juvenile offender's code summarized in the discussion of SB 261.

Law Enforcement Standards and Training

HB 2122 & HB 2529

These bills will substantially increase court costs to raise money for the law enforcement training center fund. The bill also separates the education function of law enforcement (KLETC)

from the licensing function for law enforcement purposes (KCPOST), and make other technical amendments to the Kansas Law Enforcement Training Act.

HB 2329

This bill deletes all statutory references to the "capitol area security patrol" and changes them to the "capitol police.".

Miscellaneous

SB 35

This bill prohibits the placement of signs or other outdoor advertising, for an adult cabaret or sexually-oriented business. The signs cannot be located within one mile of any state highway unless the business is located within one mile of a state highway. Even then, the business can only have two exterior signs on the premises of the business, consisting of one identification sign and one sign solely giving notice that the premises are off limits to minors. Watch for a constitutional challenge to this bill shortly after July 1, 2006.

SB 180

This bill amends several statutes to provide that court cost fees established by legislative enactment shall be the only fees collected or moneys in the nature of a fee collected for court procedures. The bill states that fees shall only be established by an act of the legislature and that no other authority is established by law or otherwise to collect a fee. Court procedures shall include docket fees, filing fees or other fees related to access to court procedures. The impact of the bill would be to prohibit the continuance of the emergency docket fee surcharge imposed by the Supreme Court in 2002 to help fund court operations.

SB 243

This bill exercises the state’s option under federal law to allow convicted drug felons to receive public assistance upon release from prison if they meet the established eligibility criteria for such programs. To meet the requirements of the bill, the person must either be participating in a treatment program, have successfully completed a treatment program or have a determination by a licensed substance abuse treatment provider that they do not require treatment. The individual would be disqualified if drug use is confirmed while the individual is on probation, parole, conditional release or post-release supervision or during required substance abuse treatment. The individual could reapply for assistance after 30 days has elapsed. These provisions only apply to persons convicted of drug offenses and not to felons convicted of other more violent types of offenses.

SB 337

This bill, among other things, gives district judges a $9000 per year pay increase and establishes a 13-member Commission on Judicial Performance. It also increases docket fees to fund the pay increase and the Commission. The goals of the Commission are to improve judicial performance, help voters make more informed decisions, and promote public accountability of the Judiciary. The Commission would create, distribute, collect, and tabulate surveys in a confidential manner. Those surveyed would evaluate the judge’s ability, integrity, impartiality, communication skills, professionalism, temperament, and administrative capability. For judges who are not elected, it also would be used to assist voters in evaluating performance of judges subject to retention elections.

SB 486

This bill extends the existence of the Governor’s Task Force on Racial Profiling to July 1, 2009. The bill requires the task force to work with law enforcement agencies to review policies and make recommendations for statewide policies and procedures regarding racial profiling.

SB 505

Trumping the Kansas Supreme Court and their attempts to profit from http://www.shawneecourt.org, this bill allows district courts to provide electronic access to court records that are otherwise publicly available, with or without a reasonable fee for such access. The bill states, in part, "No statute, law, rule, regulation or supreme court rule shall authorize the charging of a fee in addition to a county fee, if any, for providing electronic access to district

court records.

HB 2284

This bill makes it legal for breast feeding mothers to feed their babies "in any place she has a right to be," and excuses breast feeding mothers from jury duty. A committee amendment that would have required breast feeding to be done "discreetly" was deleted from the bill before passage.

HB 2626

HB 2626 amends K.S.A. 75-712b, 75-712c and 75-712d regarding missing persons by expanding the Kansas Bureau of Investigation (KBI) database on missing persons to include an unidentified person database. The information would be maintained in order to improve the ability to locate and return missing persons, identify persons or human remains, and inform family members. Information in the database is available only to law enforcement officers, state coroners, and state agencies with the need to know. The bill outlines procedural guidelines and time frames related to reporting. The bill also provides that the law enforcement agency investigating the report shall not give information to the reporting party if the law enforcement agency has reason to believe the missing person is an adult or an emancipated minor and is staying at or has made contact with a domestic violence or sexual assault program or the missing person does not expressly consent to the release of this information.

HB 2893

This bill creates new law regarding medical treatment of persons in police custody. Key provisions of the bill provide:

$ A city shall be liable to pay a health care provider for health care services rendered to persons in the custody of [the agency] the lesser of the actual amount billed by such health care provider or the medicaid rate. The provisions of this section do not apply if the person in custody is covered under a current individual or group accident and health insurance policy, medical service plan contract, hospital service corporation contract, hospital and medical service corporation contract, fraternal benefit society or health maintenance organization contract.

$ City law enforcement agencies may enter into agreements with health care providers for the provision of health care services at terms, conditions and amounts which are different than the medicaid rate.

$ It shall be the responsibility of the city law enforcement agency such agencies’ agents, to determine, under agreement with the Kansas health policy authority, the amount payable for the services provided and to communicate that determination along with the remittance advice and payment for the services provided.

$ The bill also provides that a law enforcement officer having custody of a person shall not release such person from custody merely to avoid the cost of necessary medical treatment while the person is receiving treatment from a health care provider unless the health care provider consents to such release, or unless the release is ordered by a court of competent jurisdiction. When the law enforcement officer is satisfied that probable cause no longer exists to believe the suspect committed a crime based upon the ongoing investigation, or the prosecuting attorney gives notice that no prosecution will be forthcoming at this time, the law enforcement officer may release such person from custody. Upon the date of notification to the health care provider that the person is being released from custody because the ongoing investigation indicates that probable cause no longer exists or a decision by the prosecuting attorney that no charges will be filed, the law enforcement agency shall no longer be responsible for the cost of such person’s medical treatment.

The bill also amends existing laws on medicaid fraud and misuse of public funds.

Traffic and Vehicles

SB 76

This bill amends K.S.A. 2005 Supp. 8-126, 8-197, 8-198 and 79-3606 to create new category of vehicles, the "work-site utility vehicle." Such a vehicle is "any motor vehicle which is not

less than 48 inches in width, has an overall length, including the bumper, of not more than 135 inches, has an unladen weight, including fuel and fluids, of more than 800 pounds and is equipped with four or more low pressure tires, a steering wheel and bench or bucket-type seating allowing at least two people to sit side-by-side, and may be equipped with a bed or cargo box for hauling materials." Such vehicles are not required to be registered, but cannot be operated on streets or highways. On an after July 1, 2006, the owner of such a vehicle does not have to apply for a non-highway title to the vehicle unless the person transfers an interest in such a vehicle.

SB 278

This bill amends K.S.A. 8-1597 regarding motorcycle equipment. The bill deletes the prohibition on "ape hanger" handlebars formerly found in 8-1597(b). In other words, on an after July 1 it will be legal to have handlebars where the hands of the operator, when upon the grips, are at or above shoulder height when such person is sitting astride the seat with the vehicle in an upright position.

SB 344

This bill makes it unlawful for a person to willfully fail or refuse to comply with a lawful order or direction of any uniformed school crossing guard. A “school crossing guard” is any person 18 years of age or older or any person under 18 years of age who is being directly supervised by a person at least 18 years of age, acting with or without compensation and who is authorized by a school district, nonpublic school, city, or county. School crossing guards do not have the power to issue citations or the power to arrest provided to law enforcement officers. Violation of the provision is a traffic infraction and carries a $60.00 fine.

The bill also would allow that school districts, nonpublic schools, cities, or counties may provide training to volunteers as school crossing guards. The bill also requires the Secretary of Transportation to work in conjunction with the Board of Education of any school district having a school located adjacent to a rural school zone to determine the appropriate maximum speed limit in and the appropriate signage for any rural school zone. The bill defines a “rural school zone” as that portion of highway located outside of any city which provides entrances and exits to any school located adjacent to such highway.

SB 371

This bill amends the commercial driver's license act, K.S.A. 8-2,131, 8-2,138 and 8-2,141 and K.S.A. 2005 Supp. 8-2,128, 8-2,142 and 66-1,142b to create civil penalties for drivers and their employers who are convicted of violating an out-of-service order. The penalties range from not less than $1,100 nor more than $2,750, in addition to any disqualification under K.S.A. 8-2,142, and amendments thereto. The bill also makes any otherwise unspecified violation of the act a class B misdemeanor. Finally, the bill creates certain notifications for nonresident commercial drivers.

SB 372

This bill changes the allowable width of a motor home under K.S.A. 8-1902(f) if "appurtenances" such as factory installed awnings make the vehicle exceed 102 inches wide. But any appurtenance must fit within the rearview mirrors, and the mirrors can only extend the distance necessary to provide the required field of view before the appurtenances were attached.

SB 373

This bill amends K.S.A. 8-1,120 to implement the Performance and Registration Information Systems Management (PRISM) program. The bill allows the Kansas Department of Revenue to revoke or suspend the vehicle registration of commercial motor vehicles upon notice from PRISM that the motor carrier responsible for its safety has been prohibited from operating in interstate commerce by the Federal Motor Carrier Safety Administration.

SB 374

This bill clarifies the conditions under which self-propelled cranes are exempt from registration by specifying that they cannot be used to transport property, except when required for the operation of the crane itself. The bill also makes it an unclassified misdemeanor punishable by a fine of not less than $500 for a person to unlawfully claim that a motor vehicle is exempt from

registration as a self-propelled crane.

SB 411

This bill amends K.S.A. 8-1520a, 8-1531 and K.S.A. 2005 Supp. 8-2118 and 66-1,130 to give vehicles engaged in highway construction or maintenance operations similar protections to that given emergency vehicles when the construction or maintenance vehicles are displaying flashing lights flashing lights meeting the requirements of K.S.A. 8-1731, and amendments thereto. Law enforcement officers may only give warning citations for violation of this provision for offenses occurring on or before July 1, 2007.

HB 2513

Reviving a requirement from a few years ago, this bill amends K.S.A. 8-1730 to require that every new school bus put into initial service after July 1, 2007, be equipped with a white flashing strobe light mounted on the roof of such bus to afford optimum visibility. The bill also requires courts to electronically report certain events to the Kansas Department of Revenue.

HB 2611

This bill amends the child passenger safety act; K.S.A. 8-1344 and 8-1345. The bill establishes the following guidelines for child passenger restraints:

$ A child under the age of four years must have the most appropriate child passenger safety restraining system for the age of the child. The bill would use the federal motor vehicle safety standard number 213 for setting regulations.

$ A child four years of age through seven years of age, when the child weighs less than 80 pounds or is less than four feet nine inches in height, must have a child safety passenger restraining system that meets or exceeds the number 213 standard.

$ At the time of issuing a citation for the violation of the two previous items, the law enforcement officer shall notify the driver of the waiver provisions contained in the law. The fine will be waived if the driver can show proof to the court that the appropriate and approved child passenger safety restraining system has been purchased or acquired.

$ A child eight years of age up to 14 years of age, when the child weighs more than 80 pounds or is at least four feet nine inches in height, must have a standard passenger safety restraining system (seat belt).

$ If a vehicle is transporting more children passengers than the number of safety restraining systems, or if it has only lap restraining systems, a violation would not be charged to the driver. The bill also increases the child safety system traffic violation fine from $20 to $60; however, prior to July 1, 2007, a warning citation shall be given. Money from the increased fines will be paid into the Children’s Advocacy Center Fund administered by the Attorney General.

HB 2629

This bill amends K.S.A. 8-1904 to bring Kansas into compliance with federal law enacted in 2005 relating to length limitations of drive-away saddlemount combination vehicles. The length limitation for such vehicles is set at 97 feet, the shortest distance limitation authorized by the new federal law.

HB 2630

This bill amends K.S.A. 8-1909a to exempt from gross weight limits on the interstate highway system a truck tractor and dump semitrailer or truck trailer combination authorized under the provisions of subsection (a)(3) of K.S.A. 8-1909, and amendments thereto.

HB 2631

This bill amends K.S.A. 2005 Supp. 8-1,155 to allow firefighters to obtain distinctive firefighter license plates to for their motorcycles in addition to passenger cars and trucks.

HB 2748

This bill amends K.S.A. 8-1602 and 8-1606 to establish more severe penalties for leaving the scene of an accident involving "great bodily harm." The penalty increases to a severity level 10, person felony. If the accident results in death, the penalty increases to a severity level 9, person felony

The bill also amends K.S.A. 8-1703 regarding the use of headlights. It requires drivers to use their headlights during daylight hours:

$ When, due to insufficient light or unfavorable atmospheric conditions, including smoke or fog, persons and vehicles on the highway are not clearly discernible at a distance of 1,000 feet ahead; or

$ When windshield wipers are in continuous use as a result of rain, sleet, or snow.

A driver who violates the windshield wiper provision could not be stopped by a law enforcement officer unless the driver violates another law; nor could the law enforcement officer issue a citation unless the officer cites the violation that initially caused the officer to stop the driver.

The bill also amends K.S.A. 2005 Supp. 8-1,146 to allow veterans to obtain distinctive license plates for their travel trailers.

Please advise if you have any questions about these bills.

jjk

cc: Prosecution Staff