2010
Legislative Summary
The
purpose of this bulletin is to update you on new or amended laws passed by the
Kansas Legislature during the 2010 legislative session. The following summaries attempt to report on
all bills that may be of interest to law enforcement. Please note these are only brief summaries of
the legislation. You should refer to the
actual bill for questions about the language or effect of the provisions. I have provided hyperlinks to each bill. Unless otherwise indicated, all bills become
effective
Alcohol and Tobacco
This bill amends several statutes regarding alcoholic beverages. There are two notable changes: (1) a prohibition on holding in jail anyone under 18 years of age who is arrested only for possessing, consuming, obtaining, purchasing or attempting to purchase alcoholic liquor, and (2) state licenses change from an annual term to a biennial (every two years) term. Licensees would still have the option of paying license fees on an annual basis, but failure to pay the balance when due results in automatic cancellation of the license for the remainder of the license term.
This is the smoking ban bill. It amends K.S.A. 21-4010 to basically prohibit smoking at any public meeting or in any enclosed area or within 10 feet of an access point (door, window or air intake) to an enclosed area. Violations are cigarette or tobacco infractions and subject to a increasing fines of $100, $200 and up to $500 for subsequent violations within a one-year period. The bill creates exceptions for following locations:
(1) The outdoor areas of any building or facility beyond the access points of such building or facility;
(2) private homes or residences, except when such home or residence is used as a day care home, as defined in K.S.A. 65-530, and amendments thereto;
(3) a hotel or motel room rented to one or more guests if the total percentage of such hotel or motel rooms in such hotel or motel does not exceed 20%;
(4) the gaming floor of a lottery gaming facility or racetrack gaming facility, as those terms are defined in K.S.A. 74-8702, and amendments thereto;
(5) that portion of an adult care home, as defined in K.S.A. 39-923, and amendments thereto, that is expressly designated as a smoking area by the proprietor or other person in charge of such adult care home pursuant to subsection (c) and that is fully enclosed and ventilated;
(6) that portion of a licensed long-term care unit of a medical care facility that is expressly designated as a smoking area by the proprietor or other person in charge of such medical care facility pursuant to subsection (c) and that is fully enclosed and ventilated and to which access is restricted to the residents and their guests;
(7) tobacco shops;
(8) a class A or class B club defined in K.S.A. 41-2601, and amendments thereto, which (A) held a license pursuant to K.S.A. 41-2606 et seq., and amendments thereto, as of January 1, 2009; and (B) notifies the secretary of health and environment in writing, not later than 90 days after the effective date of this act, that it wishes to continue to allow smoking on its premises; and
(9) a private club in designated areas where minors are prohibited.
Crimes and Punishment
This bill amends the statute dealing with mistreatment of a dependant adult, K.S.A. 21-3437, to make unreasonableness the standard rather than cruelty. It also generally increases the severity levels of the crime depending on the value of the financial resources mistreated. Section 2 of the bill revamps identity theft and identity fraud under K.S.A. 21-4018, doing away with the requirement that the thief or defrauder did not know that the personal identifying information belonged to another person or deceased person. The bill also amends the criminal possession of a weapon statute, K.S.A. 21-4204, to properly refer to certain drug crimes that make one ineligible to possess a firearm. The bill took effect on April 15, 2010.
This bill amends the human trafficking statute, K.S.A. 21-3446, to add two new ways of committing the crime. The following acts will now constitute human trafficking:
1. coercing employment by obtaining or maintaining labor or services that are performed or provided by another person through any of the following:
(A) Causing or threatening to cause physical injury to any person;
(B) physically restraining or threatening to physically restrain another person;
(C) abusing or threatening to abuse the law or legal process;
(D) threatening to withhold food, lodging or clothing; or
(E) knowingly destroying, concealing, removing, confiscating or possessing any actual or purported government identification document of another person; or
2. knowingly holding another person in a condition of peonage in satisfaction of a debt owed the person who is holding such other person. "Peonage" means a condition of involuntary servitude in which the victim is forced to work for another person by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process.
These theories do not apply to use of the labor of any person incarcerated in a state or county correctional facility or city jail. Offender's assets used for human trafficking are now forfeitable, and victims of human trafficking are authorized to use the safe at home program.
This bill broadens the application of the crime of having sexual relations with inmates (K.S.A. 21-3520), and increases the penalties. The bill also K.S.A. 21-3826 regarding trafficking in contraband, with new definitions and felony penalties.
This bill increases the severity level of crimes defined in the Kansas uniform securities act.
This bill amends the criminal use of weapons statute, K.S.A. 21-4201, to allow for possession of lock-blade knifes. The bill adds language to the statute stating that the following item is not prohibited: "an ordinary pocket knife which has a spring, detent or other device which creates a bias towards closure of the blade and which requires hand pressure applied to such spring, detent or device through the blade of the knife to overcome the bias towards closure to assist in the opening of the knife." This bill took effect on April 8, 2010.
This was the domestic violence bill. The bill allows for a domestic violence designation if the factfinder determines the defendant committed a domestic violence offense and additional fees of up to $100 per case to support domestic violence programs. The bill requires certain changes in agency policies, such as including the state-mandated definition of domestic violence. Two new definitions are provided:
"Domestic violence" means an act or threatened act of violence against a person with whom the offender is involved or has been involved in a dating relationship, or an act or threatened act of violence against a family or household member by a family or household member. Domestic violence also includes any other crime committed against a person or against property, or any municipal ordinance violation against a person or against property, when directed against a person with whom the of- fender is involved or has been involved in a dating relationship or when directed against a family or household member by a family or household member. For the purposes of this definition:
(A) "Dating relationship" means a social relationship of a romantic nature. In addition to any other factors the court deems relevant, the trier of fact may consider the following when making a determination of whether a relationship exists or existed: Nature of the relationship, length of time the relationship existed, frequency of interaction between the parties and time since termination of the relationship, if applicable.
Policies must also contain the following statements:
when a law enforcement officer determines that there is probable cause to believe that a crime or offense involving domestic violence, as defined in K.S.A. 21-3110, and amendments thereto, has been committed, the officer shall, without undue delay, arrest the person for which the officer has probable cause to believe committed the crime or offense if such person’s actions were not an act of defense of a person or property as provided in K.S.A. 21-3211, 21-3212, 21-3213, 21-3218 or 21-3219, and amendments thereto;
(2) a statement that nothing shall be construed to require a law enforcement officer to:
(A) Arrest either party involved in an alleged act of domestic violence when the law enforcement officer determines there is no probable cause to believe that a crime or offense has been committed; or
(B) arrest both parties involved in an alleged act of domestic violence when both claim to have been victims of such domestic violence;
(3) a statement directing that if a law enforcement officer receives complaints of domestic violence from two or more opposing persons, the officer shall evaluate each complaint separately to determine if there is probable cause that each accused person committed a crime or offense and their actions were not an act of defense of a person or property as provided in K.S.A. 21-3211, 21-3212, 21-3213, 21-3218 or 21-3219, and amendments thereto.
The bill was apparently made necessary by some police and prosecutors who still do not appear to get it. The Kansas Coalition Against Sexual and Domestic Violence presented testimony about a unnamed sheriff who told the Coalition that he only arrests the women because then the abusers get a taste of having to baby sit when she goes to jail. The sheriff believed that is why they have few repeat calls - he apparently believes abusers are no longer abusive because they had to baby sit while mom was in jail. The Coalition also stated a prosecutor believed that arresting and charging a victim, even if she is not a batterer, gets her out of the abusive relationship and "helps" her. Thus, again the legislature had to express its strong desire for a thorough investigation and arrest of the abuser, even though officers have to sort through often competing claims to determine who was the primary aggressor. The provisions of this bill requiring changes in law enforcement policies takes effect on July 1, 2011.
This bill authorizes work release for misdemeanor or felony DUI sentences other than work release programs under the control of the secretary of corrections, provided the program requires the defendant to return to confinement at the end of each day in the work release program.
This is the criminal code recodification bill. It does not make any significant changes, but will change some statute numbers. The provisions of the bill take effect on July 1, 2011.
Criminal Procedure
This bill attempts to pull courts more into the electronic age. It amends K.S.A. 8-2118 and K.S.A. 19-4716 to allow district courts to accept payments for traffic fines or county resolution violations "in any manner accepted by the court." This will allow payment of fines and fees by credit or debit cards, checks, or other methods. It also allows district courts to accept voluntary appearances, pleas of guilty or no contest and payment of fines by "other means as ordered by the court". This change will recognize appearance and payment of fines by email, website or other methods. The bill also amends K.S.A. 22-2502 and 22-2504 to allow submission of search warrant affidavits and transmission of search warrants by "electronic communications" instead of the more restrictive "facsimile communications."
This bill allows for electronic ticketing (eticketing) at the state and local level, and allows officers to electronically sign citations. The only significant difference from ordinance changes previously adopted in Overland Park is the state law still requires a defendant to sign the citation. However, state law deems a verbal acknowledgment of a promise to appear in court as a signature. In order to obtain such an acknowledgment, state officers will have to ask defendants "Do you agree to appear before the ______ court on or before ________ ?"
(date)
The officer then has to accurately record the defendant's response. The bill also allows for electronic transmissions of Insurance Verification Forms (DC-66) to the Kansas Department of Revenue.
This bill creates a duty for the secretary of corrections to notify victims of crimes committed under Chapters 33, 34, 35 or 36 of the Kansas Criminal Code upon the escape of the perpetrator and certain other occurrences.
This bill amends the offender registration statute, K.S.A. 22-4906, to require registration by those convicted of attempt, conspiracy or criminal solicitation of any crime that requires lifetime registration as provided in K.S.A. 22-4906 subsection (d).
This bill amends the criminal history scoring statute, K.S.A. 21-4710, to specify that prior convictions will not be counted in criminal history only if they enhance the severity level of the current offense. Previously such convictions were not counted if they enhance the severity level or applicable penalties." This bill struck the "applicable penalties" language. The bill took effect on April 8, 2010.
This bill added a court surcharge in the amount of $7.50 per case increased court costs to fund the costs of nonjudicial personnel. The bill took effect on April 15, 2010.
This bill amends the appearance bond statute, K.S.A. 22-2807, to state that issuance of an arrest warrant for violation of a bond condition revokes the appearance bond. The bill also provides that bond forfeitures can now be set aside if the bondsman asserts, under penalty of perjury, the defendant is incarcerated elsewhere.
This bill creates a journalists privilege, entitling reporters to keep their sources confidential unless and until a court finds, by a preponderance of the evidence, that the disclosure is (1) is material and relevant to the proceeding for which the disclosure is sought; (2) could not, after a showing of reasonable effort, be obtained by readily available alternative means; and (3) is of a compelling interest.
This is the laboratory analysis fee fund bill. It provides for the $400 fee for lab testing for each offense resulting in testing, and specifies that such funds will be used for forensic science or laboratory services; forensic computer examination services; purchase and maintenance of laboratory equipment and supplies; education, training and scientific development of personnel; and destruction of hazardous property and chemicals from the Kansas bureau of investigation forensic laboratory and materials fee fund, the destruction of seized property and chemicals from the KBI lab. The bill sets out an additional $200 charge for a DNA database fee. Such fees shall be imposed upon all those convicted unless the court has determined such person is indigent and the basis for the court’s determination is reflected in the court’s order. The bill also shifts the burden from the court to the offender to show they have previously paid the fee in another case. If the defendant makes such a showing, they do not have to pay the fee again.
This bill makes changes to the Kelsey Smith act, K.S.A. 22-4615. It relieves the Kansas Bureau of Investigation from having to obtain contact information for cell phone providers and instead requires such providers to register with the KBI and provide that information annually. The KBI will maintain a database and make the information available through their 24/7 dispatch center. This bill took effect on April 22, 2010.
Drugs
This bill amends the controlled substances act to prohibit the possession of K-2 and other compounds. The compounds prohibited include (6aR,10aR)-9-(hydroxymethyl)-6, 6-dimethyl-3-(2-methyloctan-2-yl)- 6a,7,10,10a-tetrahydrobenzo[c]chromen-1-ol - Some trade or other names: HU-210; 1-Pentyl-3-(1-naphthoyl)indole - Some trade or other names: JWH-018; 1-Butyl-3-(1-naphthoyl)indole - Some trade or other names: JWH-073; N-benzylpiperazine - Some trade or other names: BZP; and 1-(3-[trifluoromethylphenyl]) piperazine - Some trade or other names: TFMPP. This bill took effect on March 18, 2010.
This bill amends several statues regarding drug crimes. One provision splits the crimes of obtaining and distributing a prescription-only drug into two separate crimes: (1) unlawfully obtaining a prescription-only drug and (2) unlawfully selling a prescription-only drug, which is defined as unlawfully obtaining a prescription-only drug and: (1) Selling the prescription-only drug so obtained; (2) offering for sale the prescription-only drug so obtained; or (3) possessing with intent to sell the prescription-only drug. The bill also corrects drug distribution within 1000 feet of a school. A bill last year had a provision restricting the application to adult offenders, but it was left out of the statute. HB 2661 fixes that flaw. The bill also adds language to clarify violations of the act in chapter 65 prior to 7/1/09 as well as violations to the new drug act in chapter 21 on or after 7/1/09 apply where such convictions create prohibitions or sentencing enhancements. This bill took effect on April 15, 2010.
Juveniles
SB460 amends several statutes to clarify that custody orders, parenting time orders, or orders related to the best interests of a child issued pursuant to a child in need of care (CINC) or juvenile offenders (JO) action take priority over any other court orders.
This bill amends K.S.A. 38-2364 in the juvenile code to provide that when a juvenile under "extended jurisdiction" violates a condition of their juvenile sentencing provisions or commits a new crime, the court shall revoke the juvenile sentence and order the imposition of the adult sentence previously ordered. With the agreement of the state and the juvenile, the court may modify the adult sentence previously ordered. This bill allows a juvenile who has been adjudicated as an adult offender to be tried on new charges as a juvenile (rather than as an adult on all future cases), but only if both the prosecutor and defense attorney agree trying the matter as a juvenile is in the best interest of justice.
Miscellaneous
This bill amends several statutes dealing with the use of force and defines the threat to use force as a use of force and authorizes the threat under certain circumstances. The bill overturns a court case, State v. Hendrix, ___ Kan. ___, ___ P.3d ___ (No. filed 10/23/09) where the court held the defendant was not entitled to a self-defense jury instruction where he used no actual force. In Hendrix, defendant and his sister were visiting their mom in the hospital when an argument broke out. There were conflicting facts on how the threat was made. Under defendant's theory, his sister approached him "aggressively" and he threatened to "break her neck." According to the victim, Defendant pulled a knife on her and threatened to kill her. Both parties agreed on the complete absence of physical force by either. Defendant requested a jury instruction based on PIK Crim. 3d 54.17 (self defense) in his prosecution for criminal threat. The Supreme Court held that the self defense instruction should be given only where the defendant uses actual, not just threatened force. The bill also amends K.S.A. 22-3512 to creates a defense for use of force in a place of work when done to protect a person from death or serious injury. This bill took effect on April 29, 2010.
This bill authorizes district and municipal courts, in any hearing or trial with a forensic examination report, to use two-way interactive video technology to take testimony from the person who prepared the report. The bill clarifies that a prosecuting attorney is not required to provide unredacted vehicle identification numbers or personal identifiers to the defendant unless ordered by the court. This bill took effect on April 15, 2010.
This bill requires the Adjutant General's Office to affiliate with the Kansas police and firemen’s retirement system (KP&F) for firefighters employed by the 190th Kansas air national guard.
This bill allows the parole board to grant early release from prison to any person (except those convicted of off-grid felonies) deemed by a doctor licensed to practice medicine and surgery in Kansas to have a terminal medical condition likely to cause death within 30 days.
This bill amends several criminal statutes. Among the changes, attempts, conspiracies or criminal solicitations to commit certain sex crimes where the victim is a child less than 14 years of age are increased to an off-grid offense. This change is intended to fix State vs. Horn. Horn pled to attempted aggravated criminal sodomy and was sentence to a hard 25 life sentence. The Court of Appeals found conflicting penalty provisions and applied the rule of lenienty, resulting in vacating Horn's hard 25 life sentence under 21-4643 and remand for sentencing for a severity level 1 nondrug felony. The bill is also intended to fix State v. Trautloff on how multiple convictions on the same day count toward aggravated sex offenders. The bill also enhances sentences for crimes committed while wearing ballistic vests. The bill took effect on April 29, 2010.
This bill makes certain changes in the driver's license laws. The amendments include:
$ A person at least 16 years old with a class C or M license restricted under the graduated licensing provisions may drive "while going directly to or from any religious worship service held by a religious organization" during the first six months they have the license.
$ A person at least 16 years old with a farm permit may drive "while going directly to or from any religious worship service held by a religious organization" during the first six months they have the permit.
$ A motorcycle operator who is age 14-17 with an instruction permit, age 15 with a restricted license, or at least age 16 but in the first six months of having a restricted license may have the required licensed operator ride on the cycle with them. Currently they must be operating a motorcycle in the "proximity" of the permit holder. Now it can be either.
$ Prohibits diversion for CDL license holders from any state or local charge where the diversion avoids the violation appearing on their record.
$ Amends some of the DL renewal and expiration provisions including renewal of the license of a military dependant, stops the written open book test for renewal, requires the renewal application sent by MVD to have a summary of amended traffic laws.
The bill was published and took effect on May 27, 2010.
This bill creates a private, civil cause of action for victims of child pornography. The bill sets a minimum presumed dollar amount of $150,000 in damages, and provides for recovery of the cost of the suit, including reasonable attorney’s fees. Suit can be filed not only against the producer, but anyone that possesses the child pornography.
This bill amends the current wireless enhanced 911 law to extend the current law until July 1, 2011. The bill also prohibits the use of both landline 911 funds and E911 funds from being used to purchase subscriber radios. Finally, Public Safety Answering Points (PSAPS) will be required to provide an accounting of their 2010 landline receipts to the local collection point administrator (LKM and KAC) by January 1, 2011. The passage of this extension will allow LKM and KAC to work with the Legislature again next year to get a plan in place that will enable to cities and counties to move forward with next generation technology while providing a stable funding stream.
This bill creates a new police department for the horsethief reservoir benefit district (Hodgeman, Finney, Ford and Gray counties). The reservoir, located in Hodgeman county near Jetmore, is expected to open on June 30, 2010. The bill specifies the jurisdiction of the benefit district officers as similar to campus or university police officers, and allows such officers to attend the law enforcement training center.
Traffic and Vehicles
The texting while driving bill. The bill disallows the use of any wireless communication device that provides for voice or data communication between two or more parties. The bill specifically bans using text-based communication devices to write, send, or read a written communication while driving. There are exceptions for law enforcement officers, but after January 1, 2011, citizens may no longer text behind the wheel. The bill also contains amendments to the motorcycle helmet law for minors, a law enforcement exemption for window tinting, and amendments to more clearly prohibit license plate covers. The bill does not do anything about voice communication devices, just texting. In regards to motorcycles it makes it a violation to allow or permit a person under 18 to ride a motorcycle without a helmet or eye protection. Currently it only applies to helmets and only the person under 18 can be ticketed, not the adult operator. It will be illegal to have a license plate covered, in whole or in part, with any clear or opaque material or any other plastic-like material that affects the plate’s visibility or reflectivity.
This bill amends K.S.A. 8-1014 and 8-1015 regarding driver's license suspensions for test failures. It allows a person on a second occurrence to apply to the department of revenue for reinstatement of their driving privileges after serving 45 days of a one-year suspension subject to having an ignition interlock device installed. Such persons are restricted to driving to and from work, school, alcohol treatment or to their interlock provider. If they violate these restrictions, they will be suspended for an additional year. The bill also delays the effective date of the increased sentences for a third or fourth DUI conviction until July 1, 2011. The bill took effect upon publication in the Kansas Register, June 3, 2010.
The primary seat belt bill. The bill amends K.S.A. 8-2504 to require every occupant of a passenger vehicle to wear a safety belt and allows law enforcement officers to stop a vehicle for violations of safety belt requirements by anyone in the front seat. The bill would not change requirements for children under 14 covered under the Child Passenger Safety Act (K.S.A. 8-1343 et seq.). Warning tickets are to be issued between the effective date and June 30, 2010. Fines for tickets issued from and after June 30, 2010 and until July 1, 2011 are reduced to $ 5, including court costs and fines for tickets issued from and after July 1, 2011 will be $10, including court costs. Violations will not be reported to the Kansas Department of Revenue. This bill takes effect publication, on June 10, 2010.
This bill raised court costs $15 for most traffic violations. Five dollars of the increased fee will pay to upgrade the KCJIS line to each county to a T-1 line. The remainder supports DOC treatment programs.
This bill allows metro transit busses in Johnson County to travel upon the right shoulders of city connecting links and other highways in the state highway system. Such authorization is granted only if the speed of traffic on such connecting link or highway has been reduced to less than 35 miles per hour. Drivers cannot exceed the traffic speed by more than 10 miles per hour and must yield to merging, entering and exiting traffic and to other vehicles on the shoulder. The secretary of transportation shall adopt such rules and regulations, including any requirements for highway signage.
Weapons
This bill amends the state surplus property statutes to allow retired state law enforcement officers to purchase their duty weapons upon retirement. The bill was published and took effect on April 29, 2010.
This bill amends the concealed carry act, K.S.A. 75-7c01 et seq.. It changes the qualifications factors so people can qualify if they are not prohibited from possessing a gun under state or federal law. Renewal applications will go directly to the attorney general's office rather than sheriff's office. The fee for an initial license is reduced to $132 ($75 for retired law enforcement officers). The implied consent provision for alcohol or drug testing when a licensee is arrested for carrying under the influence is removed. There is no longer any penalty for refusing to test unless a licensee has caused death or serious injury. The bill also adds a new element to the crime of carrying concealed while intoxicated: incapability of safely operating a handgun due to intoxication by alcohol or drugs. However, a .08 or higher blood or breath alcohol concentration is still prima facie evidence of a violation. Cities and commercial establishments are further limited in where they can prohibit concealed carry basically to "in the building of." In other words, concealed carry cannot be prohibited in most open areas (such as parks, parking lots, grounds of college campuses, etc.) The bill changes the signage requirements. The signs notifying citizens that there is no concealed carry within the building must be at eye level of adults using the entrance. In addition, the sign cannot be more than 12 inches to the right or left of the entrance. The Attorney General will be passing new regulations regarding the signage.
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