THIS DOCUMENT MAY NOT BE DUPLICATED WITHOUT THE PERMISSION OF THE CHIEF OF POLICE.

During a recent ride-along, I learned that numerous officers are not aware of some relatively recent major developments in the law regarding felony driving offenses such as driving while a habitual violator and felony driving while suspended.

In State v. Lewis, 263 Kan. 843, 953 P.2d 1016 (1998), the Kansas Supreme Court held that an offender's knowledge of habitual violator status is essential element of the offense of felony driving while habitual violator. The decision is based, in part, on the Court's interpretation of K.S.A. 21-3201(a) (requiring proof of intent unless a statute or ordinance defines offense as reckless) and K.S.A. 1997 Supp. 21-3204 (which excepts misdemeanors and traffic infractions from the intent requirement if the applicable statute, ordinance or resolution indicates strict liability was intended). The Court held the knowledge required can be proved by actual knowledge or "deliberate ignorance," stating the jury can infer knowledge from the fact that notification of the accused's status as a habitual violator was mailed to the accused at their last known official address. Curiously, the Court never even cited the statute (K.S.A. 8-248) that requires drivers to notify the department within 10 days of any name or address change.

Although no felony driving while suspended cases have yet dealt with this issue, the same statutes apply so the Lewis decision will most likely require the suspect to have knowledge they are suspended. Felony DUI is still an open question.

The Lewis decision means the State is required to do more than merely show that the Kansas Department of Revenue mailed notice to the defendant at their last known address when the defendant denies having received it. An admission at the time of the car stop will go a long way towards helping the State meet its substantial burden. The State needs your help in obtaining such an admission.

On any stop involving a felony driving offense, dispatch should be able to advise you when the suspect was declared habitual (either by a court or the department of revenue) or when their last conviction for driving while suspended occurred. You will want to know where they were living shortly thereafter (when the state mailed them notice of suspension or revocation) so the prosecutor can prove the suspect had the opportunity to get any notice issued by the State. Therefore, you should ask the suspect about their current address, how long they have lived there, and about all previous addresses during the relevant time period. Finally, because actual knowledge is required, you should also ask the suspect if they know they are a habitual violator or are suspended or revoked. The most opportune time to ask these questions is when the suspect cannot produce a driver's license because it has been suspended or revoked.

Be careful about the timing of your questions. Because actual knowledge is an essential element of a felony driving offense, the suspect's answers to questions about the knowledge of their status will be deemed a product of "interrogation." If the suspect is in your custody and you interrogate them prior to Mirandizing them, their answers to these questions will be inadmissible in evidence. Therefore, the interrogation should be conducted during the investigative detention phase of the stop. If you wait until the suspect is arrested, you must read the suspect their Miranda rights and obtain a knowing and voluntary waiver before asking about the knowledge of their status. Remember, the test to determine whether "custody" has arisen asks whether, based on the totality of the circumstances, a reasonable person in the suspect's shoes would feel they are no longer free to go.

Ideally, answers to these questions should be on tape to thwart the suspect's inclination to later take the stand and say, "I didn't know." Be sure to mention the tape in your reports so the prosecutor will be aware of it, and turn the tape into property for safekeeping so that you do not accidentally tape over important evidence. If you cannot get the answers on tape for some reason, keep detailed notes so that your narrative will clearly reflect what the suspect actually said in response to your questions.

A couple more points that should be mentioned: (1) knowledge (as opposed to rumor) that a subject has a suspended or revoked driver's license is a valid reason to conduct a car stop, State v. Campbell, 24 Kan. App. 2d 553 (1997); and (2) if the suspect denies knowing his or her license is suspended or revoked, you can search his or her wallet, purse or the passenger compartment of the vehicle they are driving to look for evidence of the crime, namely a suspension or revocation notice.

By following these procedures and building good cases, you will help protect the public from unsafe drivers. While you are building these winning cases, you may want to approach your legislator and ask him or her to consider legislative changes to K.S.A. 21-3201(a) and K.S.A. 1997 Supp. 21-3204 to do away with the intent requirement for any criminal offense defined in Chapter 8 or Chapter 40 of the Kansas Statutes Annotated.

Please advise if you have any questions about this bulletin.

BY ORDER OF

CHIEF OF POLICE