2007 Legislative Update
The purpose of this bulletin is to update you on new or amended laws passed by the Kansas Legislature during the 2007 legislative session.
The following summaries attempt to report on all bills that may be of interest to law enforcement. Please note these are brief summaries of the legislation and you should refer to the actual bill for questions about the language or effect of the provisions. The full text of any bill can be accessed on the Internet at http://www.kslegislature.org/legsrv-legisportal/index.do Unless otherwise indicated, all bills become effective July 1, 2007.
This session was low key for criminal law matters compared to the prior two years. Conveniently, most of the 200 bills that made their way through the legislative process this session were condensed into five or so bills in the Judiciary Conference Committee including HB 2062, the Omnibus Crime Bill. Some of the measures in these bills include new provisions for controlled substances regulation, clarification of district and municipal court jurisdiction, tougher penalties for repeat offenders, new crimes against unborn children, and corrections reform measures.
1. Alcohol
SB 30
This bill provides that a farm winery also licensed as a caterer may sell domestic wine, domestic fortified wine and other alcoholic liquor for consumption on the unlicensed premises. The bill also exempts qualified charitable fund-raising activities from the requirement to have a liquor license or a temporary permit to serve alcohol at charitable events. This bill became effective on May 24, 2007.
2. Corrections Reform
SB 14
This bill was intended to be an alternative to prison expansion by offering certain grants and incentives to reduce recidivism. The bill narrows the credits to inmates convicted of drug severity level 3 or 4 crimes or nondrug severity level 7 through 10 crimes. The bill provides for good time credits to be increased from the current 15 percent to 20 percent and provides certain grants to decrease revocation rates. Eligible inmates may also earn 60 days of good time credit on a one-time basis upon certain program completion (e.g. drug treatment or vocational training). The bill also creates the Kansas criminal code recodification commission by essentially extending the Recodification Subcommittee of the now expired 3-Rs Committee to allow them to complete their work in recodifying the criminal code. The final report of the commission would be due January 11, 2009. SB 14 took effect on May 24, 2007.
3. Crime and Punishment
HB 2035
This bill requires registration of regulated metals purchased by a scrap dealer. It requires the retention of such records for two years, including who the items were purchased from along with copy of identification document of seller.
HB 2062
This bill expands the definition of explosive to explicitly include materials that, when combined, cause a chemical reaction and explode. Violation of this section of the statute is a level 8, person felony. The penalty for a violation of this section is a level 6, person felony if the explosive is intended to be used for a crime, a public safety officer is placed at risk to defuse the explosive, or the explosive is placed in a building in which there is another person. The bill also makes the possession, creation, or construction of a simulated explosive device illegal. Violation of this section of the statute is a level 8, person felony. The bill excludes consumer fireworks, as defined in federal law, from the definition of explosive, except when the consumer fireworks are modified or assembled in a manner not intended by the manufacturer. The bill does not prohibit the construction or use of explosives or simulated explosive devices by authorized personnel for legitimate public safety training, demonstration, or exhibition.
The bill also contains "Alexa's Law" which deals with crimes against unborn children. "Unborn child" would be defined to mean a living individual organism of the species homo sapiens, in utero, at any stage of gestation from fertilization to birth. This law allows for prosecution of the following crimes when the victim is a fetus:
This bill also, at long last, specifies that the sentence for a third or subsequent conviction for burglary will be presumptive prison sentence. Additionally, a defendant convicted of burglary, with a prior criminal history of a burglary and an aggravated burglary, also would be presumptive prison. The sentence would not be considered a departure sentence and would not be subject to an appeal.
HB 2193
This bill amends the sentencing statute, K.S.A. 21-4603d, to make it clear that persons on parole for felonies from other states or on federal parole receive a consecutive sentence if they commit a new crime while on parole.
HB 2528
This gun bill was vetoed by the Governor, but the legislature overrode the veto. The bill provides that mental health records will be available to the Kansas Bureau of Investigation and the Attorney General for concealed carry weapon (CCW) license purposes. The bill requires all of the places listed as no carry areas to be posted. The bill also restricts cities and counties from regulating concealed carry licensees to some extent. Local jurisdictions can only impose personnel sanctions on licensees for carrying on a job site or at work, but local governments cannot impose a criminal sanction. The bill also allows those with CCW licenses to keep their firearms in their vehicle on an employer's parking lot. This bill took effect on May 3, 2007.
SB 244
This bill amends the funeral picketing statute, K.S.A. 21-4015. It clarifies the definition of "funeral," and makes it clear that the location of a funeral includes anywhere a ceremony is held. Sets the distance from the location of a funeral to where picketing is allowed at 150 feet. The bill prohibits blocking a public way while picketing a funeral or religious event. The bill also mandates the Attorney General to file an action causing a review of the constitutionality of the statute by the Kansas Supreme Court. The statute will not go into effect unless and until the Supreme Court upholds the constitutionality of the statute
4. Criminal Procedure
SB 54
This bill requires judges to sign warrants for misdemeanors and felonies, and prohibits the clerk from signing the warrants.
SB 103
This bill requires law enforcement agencies to get not only fingerprints, but one set of palm prints of each person wanted for the commission of a felony or a class A or B misdemeanor or Assault or their county resolution equivalents. Note: the bill does not place a similar requirement upon municipal courts prosecuting city ordinance violations.
HB 2068
This bill allows the adjutant general to appoint security officers and law enforcement officers (known as TAG Law Enforcement Officers). TAG officers must meet state law enforcement officer qualifications, and TAG officer's jurisdiction mirrors those of school police and campus police.
HB 2318
This bill amends the crime victim's compensation statutes to allow the crime victim's board to award up to $1000 for crime scene cleanup.
5. Driver's Licenses
SB 9
This bill is intended to prevent driver’s license fraud. It allows the department of revenue to conduct background checks on those hired to manufacture, produce or issue drivers’ licenses; to issue subpoenas and utilize law enforcement agents to investigate driver’s license fraud, and tweaks some of the documentation required to obtain a driver’s license. Licenses issued pursuant to this act will contain the full legal name, date of birth, gender, address of principal residence and a brief description of the licensee, along with a colored digital photograph of the licensee and a facsimile of the signature of the licensee.
6. Driving While
Suspended/Habitual
SB 35
This bill attempts to fix the third or subsequent Driving While Suspended penalty enacted last year by reserving the mandatory 90-day jail sentence to those suspended for one of the following reasons:
The bill also redefines what constitutes a "moving violation" for speeding, and states that speeding violations of 6 mph or less in a 30-54 mph zone and 10 mph or less in a 55-70 zone are not moving violations, are not reportable to insurance companies and cannot be used by insurance companies to determine insurability or rates.
7. Drugs
HB 2062
Portions of this bill reconcile the Matt Samuels Chemical Control Act with federal law, namely the USA Patriot Improvement and Reauthorization Act of 2005, which also contain measures restricting the sale of precursor chemicals. The bill amends K.S.A. 65-1643 to require the address of the person purchasing, receiving or otherwise acquiring ephedrine or pseudoephedrine to be properly recorded and verified by the seller in a log with the name and quantity of the controlled substance sold. Direct access to any ephedrine or pseudoephedrine and controlled substance is now prohibited and must be placed behind the counter or stored in a locked cabinet. The bill also amends K.S.A. 2006 Supp. 65-7006 to make it unlawful for any person to purchase, receive or otherwise acquire at retail any mixture containing more than 3.6 grams of pseudoephedrine base or ephedrine base in any single transaction or more than nine grams within any 30-day period.
This bill and SB 302 also create a Controlled Substances Monitoring Task Force to develop a plan for the creation and implementation of a controlled substances prescription monitoring program and an electronic purchase log. The bill also adopts certain federal definitions of drug paraphernalia by amending the definition of drug paraphernalia in K.S.A. 2006 Supp. 65-4150 to include all equipment and materials of any kind which are primarily intended and designed for use with a controlled substance, and adds to the non-exclusive list of examples of drug paraphernalia certain pipes, bongs, and other devices. The bill allows the courts to consider whether drug paraphernalia items were advertised to encourage, glorify, or advocate participation in illegal use, manufacture, sale, or cultivation of controlled substances, and states the fact that an item has not been used or did not contain a controlled substance will not be a defense to a charge of drug paraphernalia possession.
The bill also increases penalties for certain offenses regarding the sale, offering for sale, possession with intent to sell, delivering and possession with intent to deliver, manufacture with intent to deliver, or cause to be delivered controlled substances within 1,000 feet of a school.
HB 2062 took effect on May 17, 2007, upon publication in the Kansas Register.
8. DUI
SB 35
This bill amends K.S.A. 2006 Supp. 8-1567(h) to enhance the penalty for a person who had one or more children under the age of 14 years in the vehicle at the time of the offense. The enhancement is one month of imprisonment for each child, to be served consecutively to any other minimum mandatory penalty imposed not to exceed the maximum prescribed by law. During the service of the one month enhanced penalty, the judge may order the person on house arrest, work release, or other conditional release. The bill also allows the court to order that the term of imprisonment imposed for third or subsequent violations be served in a state facility in the custody of the secretary of corrections while participating in a substance abuse treatment program designated by the secretary. The bill also prohibits the issuance of a class "C" driver's license for the operation of a motorized bicycle. The "super-DUI" provision was watered down somewhat, and as passed requires a one-year suspension for an alcohol concentration of 0.15 or greater, as well as for second, third, or fourth occurrence for an alcohol concentration of .08 or greater and permanently revokes the license for a fifth or subsequent occurrence. The bill mandates ignition interlock devices for a year after the suspension period for the first DUI test refusal, two years after the suspension for a second refusal and so on. The bill also provides for a one-year suspension for anyone under 21 years of age driving with a concentration of .08 or more as well as interlock device requirements explained above. The bill also mandates that DL suspension hearings be by telephone unless the licensee requests an in-person hearing.
9. Jurisdiction
SB 31
This bill purports to overrule State v. Elliott, 281 Kan. 583, 133 P.3d 1253 (2006), and gives municipal courts concurrent jurisdiction to prosecute what would otherwise be the felony offenses of Driving Under the Influence of Alcohol or Drugs; Domestic Battery; Theft; Worthless Checks; or Possession of Marijuana. The grant of jurisdiction on DUI offenses is retroactive to July 1, 2006.
10. Juveniles
HB 2074
This bill undoes an ill-advised bill from last year that prohibited the fingerprinting and photographing of juvenile offenders without a court order. HB 2074 would only require fingerprinting and allow photographing of juveniles when taken into custody but before final sentencing for crimes that, if committed by an adult, would constitute a felony, a class A or B misdemeanor, or assault. The bill allows, but does not require photos to be taken at juvenile detention facilities and restricts their distribution. This bill took effect on March 29, 2007.
SB 166
This bill authorizes imprisonment of a juvenile offender with the Secretary of Corrections if a juvenile offender, incarcerated in a Juvenile Correctional Facility, commits a new felony. The offender will now be subject to a new sentence imposed as a consecutive sentence or as a new conviction subject to the discretion of the court, even when the new crime otherwise presumes a non-prison sentence. The offender would be discharged from the Juvenile Justice Authority's custody for the new conviction.
The bill also amends K.S.A. 2006 Supp. 21-3610c containing the crime of unlawfully hosting a minor to change the statutory language from "persons under the age of 18" to "a minor." SB 166 took effect on May 24, 2007.
SB 18
This bill adopts the uniform child abduction prevention act. The key provisions of the bill allow a district judge before whom a custody proceeding is pending to impose certain abduction prevention measures, including an ex parte warrant to take custody of a child.
SB 129
This bill defines a "school safety violation" as possessing a weapon or illegal drug "at school, upon school property or at a school-supervised activity; or (2) an act or behavior committed at school, upon school property or at a school-supervised activity which resulted in, or was substantially likely to have resulted in, serious bodily injury to others." Upon occurrence of a school safety violation, the chief administrative officer of the school from which the student was suspended or expelled shall notify the appropriate law enforcement agency of the suspension or expulsion within 10 days. The law enforcement agency must then, in turn, notify the director of revenue within 10 days, who will then suspend the student's driving privileges.
SB 201
This bill amends the requirements for the licensing of child care facilities. The bill prohibits certain persons from working, living or regularly volunteering in child care facilities and family day care homes, and gives the Secretary of Health and Environment the ability to conduct nationwide criminal record checks to verify qualifications. The bill contains the following features:
11. Offender Registration
SB 204
This bill amends K.S.A. 22-4902 to include offenders convicted of the following crimes:
The bill also clarifies that the jurisdiction for the prosecution of an offender's failure to register or report shall be held: (1) In the county in which the offender resides; (2) if the offender is temporarily domiciled in a county and is required to be registered, in such county; or (3) in the county in which the offender is required to be registered under the act. An offender, convicted in another state, who is moving to Kansas, is required to register for the same length of time required by that state or Kansas, whichever length of time is longer. This provision applies to convictions prior to June 1, 2006 and to persons who moved to Kansas prior to June 1, 2006.
12. Retirement
HB 2457
This is a KPERS bill that includes the following items of direct interest:
This bill became effective on May 24, 2007.
SB 362
This bill completely rewrites the KPERS law. It will apply to persons hired after July 1, 2009, but only to KPERS and not to KP&F. It gives a one-time post retirement benefit of $300 for those retired prior to July 1, 1997.
13. Sex Offenses
SB 166
This bill amends K.S.A. 2006 Supp. 21-4643 by expanding the list of sex offenses that would qualify as a second-time sex offender for a "hard 40" sentence. The new list of sex offenses that qualify a second-time sex offender for a life sentence with a mandatory minimum term of imprisonment of not less than 40 years (hard 40) now includes aggravated trafficking (if the victim is less than 14 years of age); rape of a child who is under 14 years of age; aggravated indecent liberties with a child under 14 years of age; aggravated criminal sodomy with a child who is under 14 years of age; promoting prostitution (if the prostitute is less than 14 years of age); sexual exploitation of a child who is under 14 years of age; or an attempt, conspiracy, or criminal solicitation of any of the above crimes. The "hard 40" provision of the bill does not apply to unlawful voluntary sexual relations.
The bill also clarifies that sexual exploitation of a child is a severity level 5 person felony, unless the child is under 14 years of age and the offender is 18 years of age or older. The latter is an off-grid personal felony. This bill took effect on May 24, 2007.
14. Traffic and Vehicles
SB 8
This bill amends several traffic statutes. Key features of the bill are:
This bill became effective on April 26, 2007.
SB 198
This bill allows for the issuance of distinctive breast cancer research and outreach license plates.
15. Use of Force
HB 2062
This bill amends K.S.A. 21-3219 (last years "stand and defend" bill) by adding a new section (c) authorizing a prosecutor to commence a criminal prosecution upon a determination of probable cause that the use of force was not justified. This bill took effect on May 17, 2007.
Please advise if you have questions about any of these bills.