In this issue:
2014 Legislative Update
Crimes, Punishment and Criminal Procedure
Traffic and Vehicles
Summary of 2014 Legislation Affecting Law Enforcement Officers
All Bills Take Effect July 1, 2014, unless stated otherwise.
Full text of the bills can be retrieved from the links below or at the Legislature's website.
This bill expands the list of folks entitled to drink home-brew to include the maker's family, guests, and judges at a contest or competition of such beverages, provided, the maker receives no compensation for producing such beverages or for allowing the consumption thereof. The bill also raises the allowable number of barrels of domestic beer, from 15,000 to 30,000, that may be produced in a calendar year by a Kansas microbrewery licensee and modifies the current citizenship requirement for a Liquor Control Act licensee to only require U.S. citizenship. This bill took effect on April 24, 2014.
This bill increases the noneconomic damages cap on a scheduled basis and changes the rules relating to expert evidence and collateral sources. The cap moves from $250,000 to$300,000 for causes of action accruing on or after July 1, 2014, to $325,000 for causes of action accruing on or after July 1, 2018, and $350,000 for causes of action accruing on or after July 1, 2022. Section 3 of the bill abandons the Frye test for introduction of scientific evidence and adopts the Daubert standard.
Crimes, Punishment and Criminal Procedure
This bill amends several statutes dealing with crimes. It amends the mistreatment of a dependent adult statute, K.S.A. 21-5417, to clarify that if the amount of the financial abuse was less than $1,000, the crime is a class A person misdemeanor unless the person has, within five years immediately preceding commission of the crime, been convicted of mistreatment of a dependent adult, in which case it is a severity level 7, person felony.
Section 3 of this bill opens arrest warrant affidavits to the public. Amendments to K.S.A. 22-2302 state that after the warrant has been executed, affidavits or sworn testimony shall be made available to the defendant or anyone who requests it from the clerk of the court. The clerk of the court shall promptly notify the defendant or the defendant’s counsel, the prosecutor and the magistrate that such request was filed, and any objections to disclosure must be filed within five business days. The magistrate can seal the affidavits or limit disclosure so as to protect information that would:
• (A) Jeopardize the safety or well being of a victim, witness, confidential source or undercover agent, or cause the destruction of evidence;
• (B) reveal information obtained from a court-ordered wiretap or from a search warrant for a tracking device that has not expired;
• (C) interfere with any prospective law enforcement action, criminal investigation or prosecution;
• (D) reveal the identity of any confidential source or undercover agent;
• (E) reveal confidential investigative techniques or procedures not known to the general public;
• (F) endanger the life or physical safety of any person;
• (G) reveal the name, address, telephone number or any other information which specifically and individually identifies the victim of any sexual offense described in article 35 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated or K.S.A. 2013 Supp. 21-6419 through 21-6422, and amendments thereto;
• (H) reveal the name of any minor; or
• (I) reveal any date of birth, personal or business telephone number, driver’s license number, nondriver’s identification number, social security number, employee identification number, taxpayer identification number, vehicle identification number or financial account information.
Section 4 of the bill similarly opens search warrant affidavits to the parties, and possibly the public.
Section 5 of the bill amends the speedy trial statute (K.S.A. 2013 Supp. 22-3402) to require those held in jail to be brought to trial within 150 days as opposed to 90 days.
Section 6 of the bill amends K.S.A. 22-3605 governing when an appellate court mandate is stayed in criminal cases
This comprehensive bill makes several changes relating to DNA evidence; statute of limitations; interference with judicial process; sentencing; probation and post-release supervision; expungement; trials, and the conduct of a jury after case is submitted.
The DNA provision, known as Katie’s Law, amends the collection of DNA statutes. It requires specified persons to submit biological samples to the KBI when a person is fingerprinted as part of the booking procedure, or as soon as practicable. Any person required to register as an offender pursuant to the Kansas Offender Registration Act must submit a sample. The bill clarifies that a person is required to submit a sample when arrested for or charged with lewd and lascivious behavior only if the crime was committed in the presence of a person 16 or more years of age. A person arrested for or charged with buying sexual relations must submit a sample only if such person is less than 18 years of age. Further, the bill specifies that persons who were incarcerated on May 2, 1991, for a crime committed prior to that date must submit a sample prior to final discharge or conditional release. The bill makes it a class A nonperson misdemeanor for a person who has possession of or access to samples or profile records maintained by the KBI due to such person’s employment or official position to disseminate such samples or records except in strict accordance with applicable laws, or for a criminal justice agency to request profile records without a legitimate need for such records. A conviction under these provisions constituted good cause for termination or licensure revocation or suspension.
Statute of Limitations - a simple change in the bill clarifies that the statute begins to run the day after the offense is committed.
Interference with the Judicial Process - the bill provides it would be a class A misdemeanor for a person to knowingly make available personal information about a judge or the judge’s immediate family member, if dissemination of such information poses an imminent and serious threat to the judge’s safety or the safety of such judge’s immediate family member, and the person making the information available knows or reasonably should know of the imminent and serious threat. Upon a second or subsequent conviction, this crime is a severity level nine, person felony. “Personal information” is defined as a judge’s home address or telephone number; personal mobile telephone or pager number; personal e-mail address; a photo of the judge, an immediate family member, or the judge’s home or motor vehicle; or an immediate family member’s motor vehicle, place of employment, child care or day care facility, or public or private K-12 school. The bill also defines “immediate family member” and “judge.”
Justice Reinvestment Act - the bill modifies several provisions created or amended by or otherwise related to the Justice Reinvestment Act, which made numerous changes to sentencing, probation, and postrelease supervision statutes.
DUI and Test Refusal Expungement - the bill reduces the period before which a person with a conviction of or diversion for DUI may petition for expungement of the conviction or diversion from ten years to seven years. The bill also raises the expungement period for a conviction of or diversion for refusal to submit to a test to determine the presence of alcohol or drugs (test refusal) from three years to seven years.
Jury Conduct - the bill makes several changes to the criminal procedure statutes relating to the conduct of jurors after submission of a case to them.
This bill amends the statute relating to jurisdiction and venue for crimes committed with an electronic device to substantially broaden venue in such cases. It allows a prosecution for any such crime to be brought in the county where any requisite act to the commission of the crime occurred, where the victim resides; where the victim was present at the time of the crime; or where property affected by the crime was obtained or was attempted to be obtained. These venues are available in addition to any venue available under other provisions of law. The bill defines "crime committed with an electronic device" and specifies that criminal use of a financial card, unlawful acts concerning computers, identity theft and identity fraud, and electronic solicitation qualify as such a crime.
This bill establishes that the Hard 50 sentence (life with a mandatory minimum term of 50 years imprisonment) is to be the default sentence when a defendant is convicted of premeditated first degree murder committed on or after July 1, 2014. The sentencing judge may impose a Hard 25 sentence if the judge reviews mitigating circumstances and finds substantial and compelling reasons to impose the lesser sentence. If the judge imposes the Hard 25 sentence, the judge must state on the record the substantial and compelling reasons for imposing the sentence.
The bill imposes the Hard 25 sentence for a conviction of attempted capital murder or for felony murder. For any of these sentencing provisions, if the defendant’s criminal history classification would subject the defendant to presumptive imprisonment in a range exceeding 300 months (for a Hard 25 sentence) or 600 months (for a Hard 50 sentence), then the defendant shall instead be required to serve a mandatory minimum term equal to the sentence established under the sentencing guidelines. The bill requires the presence of the defendant at every stage of trial in a prosecution for a crime punishable by life without the possibility of parole.
This human trafficking bill extends reporting and minimum fine provisions for buying and selling sexual relations to municipal courts, and requires payment of the statutory minimum fines for these crimes to obtain a diversion. Only one lifetime diversion is allowed. The bill also clarifies how to count prior convictions.
This bill enacts new law and amends existing statutes to allow a defendant at the time of conviction or prior to sentencing to assert that the offense was committed as a result of mental illness, including post-traumatic stress disorder, stemming from service in a combat zone while in the U.S. Armed Forces. Under the provisions of the bill, the court must hold a hearing to determine the following:
• Whether the defendant served in a combat zone while in the U.S. Armed Forces, as proven by a certification by the executive director of the Kansas Commission on Veterans’ Affairs;
• Whether the defendant has separated from the armed forces with an honorable discharge or a general discharge under honorable conditions;
• Whether the defendant suffers from a mental illness; and
• The mental illness was caused or exacerbated by service in a combat zone.
If the court determines the defendant has met the criteria established by the bill and the defendant’s current crime and criminal history fall within a presumptive non-prison category under the sentencing guidelines, the court may order the defendant to undergo treatment. The bill allows the court to order the defendant to undergo either inpatient or outpatient treatment at any treatment facility or program operated by the U.S. Department of Defense, the Federal Veterans’ Administration, and the Kansas National Guard. If the court determines the defendant is eligible for treatment under the above provisions and that the defendant meets the requirements for treatment under the alternative sentencing provisions of 2003 SB 123, the SB 123 provisions would apply, except the court may order treatment by the providers listed above in lieu of participation in a certified drug abuse treatment program.
A provision certain to be a hit with law enforcement officers is a provision that amends the interference with law enforcement statute, K.S.A. 21-5904, to make it a crime to falsely report that a law enforcement officer has committed a crime or committed misconduct in the performance of such officer’s duties, knowing that such information is false and intending that the officer or agency shall act in reliance upon such information. The bill removes from the definition of this crime the act of falsely reporting to law enforcement that a crime has been committed or information concerning a crime, knowing that the information is false, and intending that law enforcement shall act in reliance on the information. The bill clarifies that the misdemeanor version of this crime may be committed by interfering with law enforcement in a non-criminal case.
The bill also amends the penalty for giving a false alarm in violation of K.S.A. 21-6207 to either a level 7 or 10 nonperson felony, depending on how the false alarm is given. If the perpetrator uses an electronic device or software to alter, conceal, or disguise the identity of the person making the transmission or call, the crime is a level 10 nonperson felony. If the request for emergency assistance includes false information that violent criminal activity or immediate threat to a person’s life or safety is taking place, the crime is a level 7 nonperson felony.
This bill amends several statutes in the code of criminal procedure to require county and district attorneys to provide victim notification of certain hearings rather than the secretary of corrections.
This bill amends grand jury procedure statutes to allow presentation and consideration of any alleged misdemeanor law violations which arise as part of the same felony criminal conduct or investigation. Additionally, citizen-petitioned grand juries can request that the attorney general prosecute the case arising from an indictment found by such grand jury if, in the opinion of the grand jury, the prosecuting attorney would not diligently prosecute such case. The bill also allows amendment of indictments (other than those resulting from citizen-petitioned grand juries) to be amended for the limited purpose of effecting a change of plea by the defendant pursuant to a plea agreement reached between the defendant and the prosecuting attorney.
This bill amends the Uniform Controlled Substances Act to add several additional drugs or drug classes to the schedules of controlled substances. Specifically, the bill adds 14 hallucinogenic drugs, two classes of cannibinoids, and a cannibinoid class name to schedule I; two anabolic steroids to schedule III; and lorcaserin to schedule IV.
This bill raises the reinstatement fees for first and subsequent occurrences of driving under the influence (DUI) violations. The reinstatement fees for test failure convictions are increased:
From $100 to $200 after the first occurrence;
From $200 to $400 after the second occurrence;
From $300 to $600 after the third occurrence; and
From $400 to $800 after the fourth or subsequent occurrence.
Reinstatement fees for test refusal convictions are increased:
From $400 to $600 after the first occurrence;
From $600 to $900 after the second occurrence;
From $800 to $1,200 after the third occurrence; and
From $1,000 to $1,500 after the fourth or subsequent occurrence.
The increased funds go a variety of places, including some (17%) to help pay for the breath alcohol testing program. However a larger share (33%) will go to the Judicial Branch’s Nonjudicial Salary Adjustment Fund.
This bill removes the July 1, 2015 sunset date for a provision requiring the use of a breath alcohol ignition interlock device after the first test failure or conviction. The bill also allows for issuance of a restricted driver's license to those suspended for failure to comply with a citation if their driver's license expires before they can get it reinstated.
This bill amends sections in the juvenile justice code relating to time limitations, and generally makes the statute of limitations similar to those in the criminal code. The bill also clarifies that dispositions may include ordering a juvenile offender’s parent to participate in any evidence-based program designed to rehabilitate the juvenile, including, but not limited to: (1) Counseling, mediation sessions or an alcohol and drug evaluation and treatment program ordered as part of the juvenile offender’s sentence under K.S.A. 2013 Supp. 38-2361, and amendments thereto, or (2) parenting classes.
This bill creates the student data privacy act, which prohibits schools from releasing information regarding students without consent, except in the limited circumstances outlined in the bill. There is no exception for having a law enforcement need for the information, but an exception exists if disclosure is necessary to comply with a lawful subpoena or court order.
This bill amends the Newborn Infant Protection Act (Act). K.S.A. 38-2282, to expand the list of locations where an infant can be surrendered to include police stations, sheriff’s offices, and law enforcement centers. Additionally, the bill protects disclosure of the name or other identifiable information of a parent or custodian who voluntarily surrenders physical custody of an infant under the Act, unless there is reasonable suspicion the infant has been abused, and protects the person or facility receiving the infant from civil and criminal liability for any action taken under the Act. The parent or custodian is not required to reveal personally identifiable information, but can offer information concerning the infant’s familial or medical history. The bill also clarifies that the person or facility to whom an infant is delivered is prohibited from revealing the name or other identifiable information of the person who delivered the infant, unless there is reasonable suspicion the infant has been abused
This bill revises the juvenile justice code to allow for more prosecution options. It allows an alternative adjudication procedure for misdemeanor-level juvenile offenses with less formal procedures, appropriate disciplinary sanctions, and provision of necessary services. Upon completion of the case and termination of the court’s jurisdiction, the court is required to order the adjudication expunged. The adjudication shall not be subject to provisions for retention in court files or law enforcement records, and other expungement requirements, limitations, and disclosure provisions shall not apply. The bill also prohibits placement of a child alleged or found to be a child in need of care from being placed in a juvenile detention facility, unless such placement is necessary to protect the safety of the child and is authorized under certain sections of the Code. There are numerous other provisions relating to the juvenile justice system, but most are not of interest to law enforcement.
This bill updates the makeup and the procedures of the Kansas criminal justice information system committee.
This concurrent resolution urges the Kansas Bureau of Investigation (KBI) to set up a "Blue Alert" program similar to Amber Alerts for Missing Children and Silver Alerts for missing Senior Citizens. Blue Alerts are designed to help law enforcement officers, and go out when a law enforcement officer is wounded or killed and the suspect is still at large. The notices would provide information to encourage the public to help apprehend the suspect. Several other states, including California and Florida, already have the Blue Alert system.
This bill expands the jurisdiction of district magistrate judges by allowing them to conduct felony first appearance hearings and have jurisdiction over uncontested actions for divorce, as well as over any civil action with the consent of the parties. The bill also amends the statute governing appeals from a magistrate to establish that appeals from lawyer magistrates go to the Court of Appeals, while appeals from non-lawyer magistrates go to a district judge.
This is a terrorism bill that creates a civil cause of action against anyone that engages in acts of terrorism and illegal use of weapons of mass destruction. A prevailing plaintiff shall recover up to three times the actual damages such person sustained or $10,000, whichever is greater, and the cost of the suit, including reasonable attorney’s fees. The statute of limitations for such action is five years after the later of:
(1) The date of discovery of the violation of K.S.A. 2013 Supp. 21-5421 or 21-5423, and amendments thereto; or
(2) the conclusion of a related criminal case.
At the victim’s request, the attorney general may pursue cases on behalf of any Kansas victim under this section. All damages obtained shall go to the victim, and the attorney general may seek reasonable attorney’s fees and costs.
The bill also creates a new crime called "hindering of the prosecution of terrorism," the elements of which are:
(A) Harboring or concealing a person who is known or believed by the offender to have committed any violation of K.S.A. 2013 Supp. 21- 5421 or 21-5422, and amendments thereto;
(B) warning a person who is known or believed by the offender to have committed any violations of K.S.A. 2013 Supp. 21-5421 or 21-5422, and amendments thereto, of impending discovery or apprehension, except that the provisions of this subparagraph do not apply to any transaction between an individual and that individual’s counsel necessary to preserve that individual’s right to representation, as guaranteed by section 10 of the bill of rights of the constitution of the state of Kansas and by the sixth amendment to the United States constitution; and
(C) suppressing any physical evidence which might aid in the discovery or apprehension of a person who is known or believed by the offender to have committed any violation of K.S.A. 2013 Supp. 21-5421 or 21-5422, and amendments thereto.
The bill also adds the crimes of terrorism and illegal use of weapons of mass destruction to the civil forfeiture statute.
Traffic and Vehicles
This bill specifies signage requirements for a vehicle operating on any highway with a special permit because the vehicle exceeds dimension or weight restrictions and specifies the times and weather conditions when those vehicles could operate. The bill requires a vehicle operating under a permit because the vehicle exceeds width or length limitations to display an “oversize load” sign of a specified size and lettering on the sign. The bill also requires red flags on all four corners of the oversize load. Oversize load vehicles and hay transporters may not operate from 30 minutes after sunset to 30 minutes before sunrise, when visibility is less than one-half mile, or when highway surfaces have ice or snow pack or driving snow. Vehicles that exceed weight limitations are permitted to operate 24 hours a day except when highway surfaces have ice or snow pack or drifting snow. This bill took effect on April 24, 2014.
This bill amends several provisions in the vehicle code dealing with Vehicle Identification Number (VIN) inspections. It removes the requirement that law enforcement officers arrest the owner or custodian of a motor vehicle, trailer, or semitrailer with a VIN that has been destroyed, removed, altered, or defaced; clarifies that any motor vehicle, trailer, or semitrailer with a VIN that has been destroyed, removed, altered, or defaced and is seized by a law enforcement officer is contraband property; requires the Kansas Highway Patrol (KHP) to ensure that assembled vehicles are in compliance with the VIN inspection statute (K.S.A. 8-116) and, if so, determine the make, model, and year of the assembled vehicle; requires that the VIN inspection fee retained by an inspecting law enforcement agency be used for law enforcement purposes and not used to supplant the law enforcement agency’s budget; and prevents a law enforcement agency or employee acting within the scope of employment from liability for damages resulting from VIN inspections.
This bill amends the fleeing and eluding statute, K.S.A. 8-1568, to establish a special sentencing rule for a third or subsequent violation. The sentence for such a violation shall be presumptive imprisonment and shall be served consecutively to any prison sentence. This sentence is not considered a departure and is not subject to appeal. The bill also amends the fleeing and eluding statute to clarify, within the definition of "conviction," that it is irrelevant in determining whether a conviction is a first, second, or third or subsequent conviction for sentencing purposes whether an offense occurred before or after conviction for a previous offense. Finally, the bill makes non-substantive amendments reorganizing the fleeing and eluding penalty provisions.
This bill amends K.S.A. 8-143 to raise the price to register an electric vehicle from $14 to $30 in most cases, beginning on an after January 1, 2015.
Continuing the never-ending string of specialty license plates, this bill allows for donate life, disabled veterans motorcycle plates, rotary international, armed forces and Kansas horse council license plates.
This bill authorizes community colleges and technical colleges, upon request, to administer the skills tests required for a person to obtain a commercial driver’s license. The bill also requires the Secretary of Revenue to grant priority status to any community or technical college with a truck driver training course in place on July 1, 2014. The Secretary must authorize testing that complies with federal requirements of 49 CFR Part 383 in an agreement between the requesting community college or technical college and the State. The Secretary will be required to adopt rules and regulations to implement the testing procedure. The bill requires the Secretary to accept the results of a person’s skills tests administered by either a community college or a technical college. Finally, the bill specifies that third-party driver’s license examiners will not be required to be included within the classified service under the Kansas Civil Service Act.
This bill creates a law related to transportation of farm implements by implement dealers on the highways. An "implement dealer" is a person or business that buys, sells, or services farm tractors, implements of husbandry, or other farm machinery in the regular course of business. Dealers that obtain a permit for an oversize or overweight vehicle may move or transport farm tractors, implements of husbandry, combines, fertilizer dispensing equipment, or other farm machinery on certain highways in Kansas. The bill creates an annual permit available to an implement dealer and also specifies an implement dealer could use a single-trip permit for this purpose. Such movement is required to meet certain conditions related to load size, is restricted to daylight hours, and can not use any highway that is part of the National System of Interstate and Defense Highways, i.e., U.S. and interstate highways. The bill allows the equipment or machinery to be moved on a trailer or semi-trailer, pinned to a truck or truck tractor and traveling on its own wheels, or under its own power. The bill allows an implement dealer or the dealer’s employees to move farm machinery when towing such machinery behind a farm tractor within a 100-mile radius of the implement dealer’s place of business when both the farm tractor and the equipment or machinery are equipped with flashing lights on both the front and rear; any machinery designed for or normally moved at speeds less than 25 miles per hour is required to clearly display a slow-moving vehicle emblem. The bill clarifies provisions related to permits for oversize or overweight vehicles operated on highways and states no special permit will be required of an implement dealer who has obtained an annual permit and follows the conditions noted above. The bill adds farm tractors operated by an implement dealer or the dealer’s employee to a list of vehicles exempt from the Uniform Commercial Driver’s License Act when the farm tractor is moved or transported in accordance with the permit requirements in the new section of law. The bill also corrects and clarifies references to codes of military justice in an exception related to military vehicles.
This bill amends the definition of "tank vehicle" in the Uniform Commercial Driver’s License Act to conform to the definition in 49 CFR §383.5, a federal rule and regulation related
to commercial drivers’ licenses.
This bill replaces language requiring review every three years of eligibility for a special license plate or placard issued to a person with a disability or a person responsible for the transportation of a person with a disability. The new language requires the Secretary of Revenue to issue rules and regulations on eligibility determination that comply with federal requirements in 23 CFR 1235.4, which includes a requirement for periodic renewal of placards.
This bill allows insurance companies to apply to the Division of Vehicles for a salvage title 30 or more days after the company enters into a damage settlement agreement in which the owner agrees to transfer title if the insurance company is unable to obtain voluntary assignment. The bill also removes a requirement that three copies be prepared of any permit to allow the owner of a salvage vehicle to operate that vehicle on the highways and language related to distribution of the copies.
This bill exempts off-duty, out of state and retired qualified law enforcement officers from no concealed carry handgun signs on public and private buildings, provided the officer is in compliance with the firearms policies of such officer’s law enforcement agency; and such officer possesses identification required by such officer’s law enforcement agency and presents such identification when requested by another law enforcement officer or by a person of authority for the building where the carrying of concealed handguns is otherwise prohibited.
This bill completes virtually all preemption of city weapon regulation. Highlights of the bill include:
• Chiefs must approve transfer of Federally Regulated Firearms within 15 days unless transfer violates federal law
• Cities are prohibited from (a) inquiring if employees CCH license holders; (b) taking disciplinary action against those who fail to disclose their license status; and (c) keeping lists of persons with a CCH license
• The bill allows posting of buildings against open carry
• Replaces a provision regarding the operation, possession, or carrying of a handgun under the influence of alcohol or illegally used controlled substances
• Preempts completely all city regulations of knives, but adds back to the criminal use of weapons statute daggers, dirks, dangerous knives, straight-edged razors, and stilettos, and prohibits convicted felons from possessing these items
• Still allows some control over guns through employment policies
• Adopts an immunity provision for wrongful acts or omissions related to carrying a firearm, including acts or omissions by municipal employees
• The bill specifies that firearms cannot be destroyed unless they have been used to commit a felony or are otherwise unserviceable
• The bill mandates return of non-stolen weapons to an arrested individual if they are not convicted of a violation making them ineligible for return of the weapon
• The bill prohibits expenditure of tax dollars on firearms buyback programs
This bill provides an exemption to the prohibition placed on the recovery of workers compensation in cases involving coronary disease, coronary artery disease, or cerebrovascular injury during the course of usual work performed by firefighters or law enforcement officers. In order to prove a claim, an injured public safety employee needs to show:
• The injury was caused by a specific event that occurred in the course and scope of employment;
• The coronary or cerebrovascular injury occurred within 24 hours of the specific event; and
• The specific event was the prevailing factor in causing the disease or injury.
Please advise if you have questions about any of these bills.