K.S.A. Chapter 8 Article 10

Driving Under the Influence of Alcohol or Drugs - Testing

Current through end of 2014 legislative session

8-1001      Tests for alcohol or drugs; request by officer, grounds; consent implied; administration of tests, when; procedures; immunity from liability; warning statement; search warrant, admissibility of test; availability of test result; remedial nature of law.

8-1002      Test refusal or failure; suspension of license; notice; hearing; procedure.

8-1004      Same; additional test by own physician; effect of denial.

8-1005      Evidence; test results admissible in prosecutions; weight to be given evidence.

8-1006      Same; submission of other evidence; preservation of samples not required.

8-1007      Same; act supplemental; invalidity of part.

8-1008      Alcohol and drug safety action program; evaluation and supervision of persons convicted of violation of 8-1567 or comparable city ordinance; certification of programs; reports of administrative judge; fees, disposition.

8-1009      Determination by prosecuting attorney of whether diversion agreement to be allowed.

8-1010      Severability of Laws of 1982, ch. 144.

8-1011      Immunity from liability for damage to vehicle operated by or in control of person arrested or in custody.

8-1012      Preliminary screening test of breath for alcohol concentration; request by officer, grounds; notice required; refusal to take test is traffic infraction; use of results of test; additional tests.

8-1013      Definitions.

8-1014      Suspension and restriction of driving privileges for test refusal, test failure or alcohol or drug-related conviction.

8-1015      Same; authorized restrictions of driving privileges; ignition interlock device.

8-1016      Same; ignition interlock devices; approval by division; immunity from civil and criminal liability.

8-1017      Same; circumvention of ignition interlock device; penalty.

8-1019      Victim impact statement and restitution requirements.

8-1020      Driver's License Suspension Hearing Procedures

8-1021      Impoundment of motor vehicle for 8-1567 violation; failure to pay fees or take repossession; disposition of vehicle.

8-1022      Permitting driving in violation of 8-1014; penalties.

8-1023      Testing not considered medical care; information to be provided law enforcement officer; costs; assessment; privileges not applicable.

8-1024      Immunity of persons and entities involved in testing from liability.

8-1025      Refusal of a chemical test; penalties.


8-1001. Tests for alcohol or drugs; request by officer, grounds; consent implied; administration of tests, when; procedures; immunity from liability; warning statement; search warrant, admissibility of test; availability of test result; remedial nature of law.

            (a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this article, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs. A person who is dead or unconscious shall be deemed not to have withdrawn the person's consent to such test or tests, which shall be administered in the manner provided by this section.

            (b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a) (1) if, at the time of the request, the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person was driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person’s system, or was under the age of 21 years and was operating or attempting to operate a vehicle, while having alcohol or other drugs in such person's system; and one of the following conditions exists: (A) The person has been arrested or otherwise taken into custody for any offense violation of any state statute, county resolution or city ordinance; or (B) the person has been involved in a vehicle accident or collision resulting in property damage or personal injury other than serious injury; or (2) if the person was operating or attempting to operate a vehicle and such vehicle has been involved in an accident or collision resulting in serious injury or death of any person and the operator could be cited for any traffic offense, as defined in K.S.A. 8-2117, and amendments thereto. The traffic offense violation shall constitute probable cause for purposes of paragraph (2). The test or tests under paragraph (2) shall not be required if a law enforcement officer has reasonable grounds to believe the actions of the operator did not contribute to the accident or collision. The law enforcement officer directing administration of the test or tests may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the accident investigation or arrest.

            (c) If a law enforcement officer requests a person to submit to a test of blood under this section, the withdrawal of blood at the direction of the officer may be performed only by: (1) A person licensed to practice medicine and surgery, licensed as a physician assistant, or a person acting under the direction of any such licensed person; (2) a registered nurse or a licensed practical nurse; (3) any qualified medical technician, including, but not limited to, an emergency medical technician-intermediate, mobile intensive care technician, an emergency medical technician-intermediate defibrillator, an advanced emergency medical technician or a

paramedic, as those terms are defined in K.S.A. 65-6112, and amendments thereto, authorized by medical protocol or (4) a phlebotomist.

            (d) A law enforcement officer may direct a medical professional described in this section to draw a sample of blood from a person:

            (1) If the person has given consent and meets the requirements of subsection (b);

            (2) if medically unable to consent, if the person meets the requirements of paragraph (2) of subsection (b); or

            (3) if the person refuses to submit to and complete a test, if the person meets the requirements of paragraph (2) of subsection (b).

            (e) When so directed by a law enforcement officer through a written statement, the medical professional shall withdraw the sample as soon as practical and shall deliver the sample to the law enforcement officer or another law enforcement officer as directed by the requesting law enforcement officer as soon as practical, provided the collection of the sample does not jeopardize the person’s life, cause serious injury to the person or seriously impede the person’s medical assessment, care or treatment. The medical professional authorized herein to withdraw the blood and the medical care facility where the blood is drawn may act on good faith that the requirements have been met for directing the withdrawing of blood once presented with the written statement provided for under this subsection. The medical professional shall not require the person to sign any additional consent or waiver form. In such a case, the person authorized to withdraw blood and the medical care facility shall not be liable in any action alleging lack of consent or lack of informed consent.

            (f) Such sample or samples shall be an independent sample and not be a portion of a sample collected for medical purposes. The person collecting the blood sample shall complete the collection portion of a document provided by law enforcement.

            (g) If a person must be restrained to collect the sample pursuant to this section, law enforcement shall be responsible for applying any such restraint utilizing acceptable law enforcement restraint practices. The restraint shall be effective in controlling the person in a manner not to jeopardize the person’s safety or that of the medical professional or attending medical or health care staff during the drawing of the sample and without interfering with medical treatment.

            (h) A law enforcement officer may request a urine sample upon meeting the requirements of paragraph (1) of subsection (b) and shall request a urine sample upon meeting the requirements of paragraph (2) of subsection (b).

            (i) If a law enforcement officer requests a person to submit to a test of urine under this section, the collection of the urine sample shall be supervised by (1) A person licensed to practice medicine and surgery, licensed as a physician’s assistant, or a person acting under the direction of any such licensed person; (2) a registered nurse or a licensed practical nurse; or (3) a law enforcement officer of the same sex as the person being tested. The collection of the urine sample shall be conducted out of the view of any person other than the persons supervising the collection of the sample and the person being tested, unless the right to privacy is waived by the person being tested. When possible, the supervising person shall be a law enforcement officer. The results of qualitative testing for drug presence shall be admissible in evidence and questions of accuracy or reliability shall go to the weight rather than the admissibility of the evidence. If the person is medically unable to provide a urine sample in such manner due to the injuries or treatment of the injuries, the same authorization and procedure as used for the collection of blood in subsections (d) and (e) shall apply to the collection of a urine sample.

            (j) No law enforcement officer who is acting in accordance with this section shall be liable in any civil or criminal proceeding involving the action.

            (k) Before a test or tests are administered under this section, the person shall be given oral and written notice that:

            (1) Kansas law requires the person to submit to and complete one or more tests of breath, blood or urine to determine if the person is under the influence of alcohol or drugs, or both;

            (2) the opportunity to consent to or refuse a test is not a constitutional right;

            (3) there is no constitutional right to consult with an attorney regarding whether to submit to testing;

            (4) if the person refuses to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, the person may be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties that are greater than or equal to the criminal penalties for the crime of driving under the influence, if such person has:

(A) Any prior test refusal as defined in K.S.A. 8-1013, and amendments thereto, which occurred:

(i) On or after July 1, 2001; and (ii) when such person was 18 years of age or older; or

(B) any prior conviction for a violation of K.S.A. 8-1567 or 8-2,144, and amendments thereto, or a violation of an ordinance of any city or resolution of any county which prohibits the acts that such section prohibits, or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging any such violations, which occurred:

(i) On or after July 1, 2001; and (ii) when such person was 18 years of age or older;

            (5) if the person refuses to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, the person's driving privileges will be suspended for one year for the first or subsequent occurence;

            (6) if the person submits to and completes the test or tests and the test results show for the first occurrence:

            (A) An alcohol concentration of .08 or greater, the person’s driving privileges will be suspended for 30 days for the first occurrence and one year for the second or subsequent occurrence; or

            (B) an alcohol concentration of .15 or greater, the person’s driving privileges will be suspended for one year for the first or subsequent occurrence;

            (7) refusal to submit to testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both;

            (8) the results of the testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both; and

            (9) after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing.

            (l) If a law enforcement officer has reasonable grounds to believe that the person has been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system, the person shall also be provided the oral and written notice pursuant to K.S.A. 8-2,145 and amendments thereto. Any failure to give the notices required by K.S.A. 8-2,145 and amendments thereto shall not invalidate any action taken as a result of the requirements of this section. If a law enforcement officer has reasonable grounds to believe that the person has been operating or attempting to operate a vehicle while having alcohol or other drugs in such person’s system and such person was under 21 years of age, the person also shall be given the notices required by K.S.A. 8-1567a, and amendments thereto. Any failure to give the notices required by K.S.A. 8-1567a, and amendments thereto, shall not invalidate any action taken as a result of the requirements of this section.

            (m) After giving the foregoing information, a law enforcement officer shall request the person to submit to testing. The selection of the test or tests shall be made by the officer. If the test results show a blood or breath alcohol concentration of .08 or greater, the person's driving privileges shall be subject to suspension, or suspension and restriction, as provided in K.S.A. 8-1002 and 8-1014, and amendments thereto.

            (n) The person's refusal shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both. The person’s refusal shall be admissible in evidence against the person at any trial on a charge arising out of the alleged violation of [§ 2 of 2012 SB 60], and amendments thereto.

            (o) If a law enforcement officer had reasonable grounds to believe the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, and the test results show a blood or breath alcohol concentration of .04 or greater, the person shall be disqualified from driving a commercial motor vehicle, pursuant to K.S.A. 8-2,142, and amendments thereto. If a law enforcement officer had reasonable grounds to believe the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, and the test results show a blood or breath alcohol concentration of .08 or greater, or the person refuses a test, the person's driving privileges shall be subject to suspension, or suspension and restriction, pursuant to this section, in addition to being disqualified from driving a commercial motor vehicle pursuant to K.S.A. 8-2,142, and amendments thereto.

            (p) An officer shall have probable cause to believe that the person operated a vehicle while under the influence of alcohol or drugs, or both, if the vehicle was operated by such person in such a manner as to have caused the death of or serious injury to a person. In such event, such test or tests may be made pursuant to a search warrant issued under the authority of K.S.A. 22-2502, and amendments thereto, or without a search warrant under the authority of K.S.A. 22-2501, and amendments thereto.

            (q) Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.

            (r) It shall not be a defense that the person did not understand the written or oral notice required by this section.

            (s) No test shall be suppressed because of technical irregularities in the consent or notice pursuant to this act.

            (t) Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.

            (u) Upon the request of any person submitting to testing under this section, a report of the results of the testing shall be made available to such person.

            (v) This act is remedial law and shall be liberally construed to promote public health, safety and welfare.

            (w) As used in this section, ‘‘serious injury’’ means a physical injury to a person, as determined by law enforcement, which has the effect of, prior to the request for testing:

            (1) Disabling a person from the physical capacity to remove themselves from the scene;

            (2) renders a person unconscious;

            (3) the immediate loss of or absence of the normal use of at least one limb;

            (4) an injury determined by a physician to require surgery; or

            (5) otherwise indicates the person may die or be permanently disabled

by the injury.

            History: L. 1955, ch. 61, § 1; L. 1967, ch. 60, § 1; L. 1973, ch. 41, § 1; L. 1977, ch. 38, § 4; L. 1978, ch. 36, § 1; L. 1982, ch. 144, § 3; L. 1985, ch. 48, § 3; L. 1985, ch. 50, § 1; L. 1986, ch. 40, § 2; L. 1988, ch. 47, § 13; L. 1990, ch. 47, § 1; L. 1991, ch. 36, § 18; L. 1993, ch. 259, § 1; L. 1993, ch. 275, § 1; L. 1994, ch. 353, § 9; L. 1999, ch. 169, § 1, L. 2001, ch. 200, § 14; L. 2005, ch. 172, § 2; L. 2006, ch. 173, § 1; L. 2007, ch. 181, § 3; L. 2008, ch. 170, § 1; L. 2010, ch. 119, § 13; L. 2011, ch. 105, § 10; L. 2012, ch. 172, § 12; L. 2013, ch. 122, § 2; L. 2014, ch. 131, § 1; July 1 2015.

8-1002. Test refusal or failure; suspension of license; notice; hearing; procedure.

            (a) Whenever a test is requested pursuant to this act and results in either a test failure or test refusal, a law enforcement officer's certification shall be prepared. If the person had been driving a commercial motor vehicle, as defined in K.S.A.8-2,128, and amendments thereto, a separate certification pursuant to K.S.A.8-2,145 and amendments thereto shall be prepared in addition to any certification required by this section. The certification required by this section shall be signed by one or more officers to certify:

            (1) With regard to a test refusal, that: (A) There existed reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person had been driving a commercial motor vehicle, as defined in K.S.A.8-2,128, and amendments thereto, or is under 21 years of age while having alcohol or other drugs in such person's system; (B) the person had been placed under arrest, was in custody or had been involved in a vehicle accident or collision; (C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A.8-1001, and amendments thereto; and (D) the person refused to submit to and complete a test as requested by a law enforcement officer.

            (2) With regard to a test failure, that: (A) There existed reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person had been driving a commercial motor vehicle, as defined in K.S.A.8-2,128, and amendments thereto, or is under 21 years of age while having alcohol or other drugs in such person's system; (B) the person had been placed under arrest, was in custody or had been involved in a vehicle accident or collision; (C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A.8-1001, and amendments thereto; and (D) the result of the test showed that the person had an alcohol concentration of .08 or greater in such person's blood or breath.

            (3) With regard to failure of a breath test, in addition to those matters required to be certified under subsection (a)(2), that: (A) The testing equipment used was certified by the Kansas department of health and environment; (B) the testing procedures used were in accordance with the requirements set out by the Kansas department of health and environment; and (C) the person who operated the testing equipment was certified by the Kansas department of health and environment to operate such equipment.

            (b) For purposes of this section, certification shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required. The signed certification or a copy or photostatic reproduction thereof shall be admissible in evidence in all proceedings brought pursuant to this act, and receipt of any such certification, copy or reproduction shall accord the department authority to proceed as set forth herein. Any person who signs a certification submitted to the division knowing it contains a false statement is guilty of a class B nonperson misdemeanor.

            (c) When the officer directing administration of the testing determines that a person has refused a test and the criteria of subsection (a)(1) have been met or determines that a person has failed a test and the criteria of subsection (a)(2) have been met, the officer shall serve upon the person notice of suspension of driving privileges pursuant to K.S.A.8-1014, and amendments thereto. If the determination is made while the person is still in custody, service shall be made in person by the officer on behalf of the division of vehicles. In cases where a test failure is established by a subsequent analysis of a breath, blood or urine sample, the officer shall serve notice of such suspension in person or by another designated officer or by mailing the notice to the person at the address provided at the time of the test.

            (d) In addition to the information required by subsection (a), the law enforcement officer's certification and notice of suspension shall contain the following information: (1) The person's name, driver's license number and current address; (2) the reason and statutory grounds for the suspension; (3) the date notice is being served and a statement that the effective date of the suspension shall be the 30th day after the date of service; (4) the right of the person to request an administrative hearing; and (5) the procedure the person must follow to request an administrative hearing. The law enforcement officer's certification and notice of suspension shall also inform the person that all correspondence will be mailed to the person at the address contained in the law enforcement officer's certification and notice of suspension unless the person notifies the division in writing of a different address or change of address. The address provided will be considered a change of address for purposes of K.S.A.8-248, and amendments thereto, if the address furnished is different from that on file with the division.

            (e) If a person refuses a test or if a person is still in custody when it is determined that the person has failed a test, the officer shall take any license in the possession of the person and, if the license is not expired, suspended, revoked or canceled, shall issue a temporary license effective until the 30th day after the date of service set out in the law enforcement officer's certification and notice of suspension. If the test failure is established by a subsequent analysis of a breath or blood sample, the temporary license shall be served together with the copy of the law enforcement officer's certification and notice of suspension. A temporary license issued pursuant to this subsection shall bear the same restrictions and limitations as the license for which it was exchanged. Within seven days after the date of service of a copy of the law enforcement officer's certification and notice of suspension the officer's certification and notice of suspension, along with any licenses taken, shall be forwarded to the division.

            (f) Upon receipt of the law enforcement officer's certification, the division shall review the certification to determine that it meets the requirements of subsection (a). Upon so determining, the division shall proceed to suspend the person's driving privileges in accordance with the notice of suspension previously served. If the requirements of subsection (a) are not met, the division shall dismiss the administrative proceeding and return any license surrendered by the person.

            (g) The division shall prepare and distribute forms for use by law enforcement officers in giving the notice required by this section.

            (h) The provisions of K.S.A.60-206 and amendments thereto regarding the computation of time shall be applicable in determining the effective date of suspension set out in subsection (d).

History: L. 1955, ch. 61, § 2; L. 1985, ch. 48, § 4; L. 1985, ch. 50, § 2; L. 1986, ch. 40, § 3; L. 1988, ch. 47, § 14; L. 1989, ch. 38, § 35; L. 1989, ch. 38, § 36; L. 1990, ch. 44, § 3; L. 1991, ch. 36, § 19; L. 1993, ch. 259, § 2; L. 1993, ch. 275, § 2; L. 1995, ch. 208, § 2; L. 2001, ch. 200m § 13; L. 2007, ch. 181, § 4; L. 2010, ch. 135, § 5; July 1.

8-1004. Same; additional test by own physician; effect of denial.

            Without limiting or affecting the provisions of K.S.A.8-1001 and amendments thereto, the person tested shall have a reasonable opportunity to have an additional test by a physician of the person's own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A.8-1001 and amendments thereto shall not be competent in evidence.

History: L. 1955, ch. 61, § 4; L. 1985, ch. 48, § 6; L. 1985, ch. 50, § 3; July 1.

8-1005. Evidence; test results admissible in prosecutions; weight to be given evidence.

            Except as provided by K.S.A.8-1012 and amendments thereto, in any criminal prosecution for violation of the laws of this state relating to operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or the commission of vehicular homicide or manslaughter while under the influence of alcohol or drugs, or both, or in any prosecution for a violation of a city ordinance relating to the operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, evidence of the concentration of alcohol or drugs in the defendant's blood, urine, breath or other bodily substance may be admitted and shall give rise to the following:

            (a) If the alcohol concentration is less than .08, that fact may be considered with other competent evidence to determine if the defendant was under the influence of alcohol, or both alcohol and drugs.

            (b) If the alcohol concentration is .08 or more, it shall be prima facie evidence that the defendant was under the influence of alcohol to a degree that renders the person incapable of driving safely.

            (c) If there was present in the defendant's bodily substance any narcotic, hypnotic, somnifacient, stimulating or other drug which has the capacity to render the defendant incapable of safely driving a vehicle, that fact may be considered to determine if the defendant was under the influence of drugs, or both alcohol and drugs, to a degree that renders the defendant incapable of driving safely.

History: L. 1955, ch. 279, § 1; L. 1967, ch. 60, § 2; L. 1970, ch. 51, § 3; L. 1973, ch. 42, § 1; L. 1976, ch. 49, § 1; L. 1982, ch. 144, § 4; L. 1985, ch. 48, § 7; L. 1986, ch. 40, § 4; L. 1986, ch. 41, § 1; L. 1988, ch. 47, § 15; L. 1993, ch. 259, § 16; L. 1993, ch. 291, § 269; July 1.

8-1006. Same; submission of other evidence; preservation of samples not required.

            (a) The provisions of K.S.A.8-1005, and amendments thereto, shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or drugs, or both.

            (b) Nothing in this act shall require any samples of blood, breath or urine to be preserved for or furnished to the person for independent testing.

History: L. 1955, ch. 279, § 2; L. 1985, ch. 48, § 8; L. 1985, ch. 50, § 4; L. 1986, ch. 40, § 5; L. 1988, ch. 47, § 16; L. 1994, ch. 319, § 3; May 19.

8-1007. Same; act supplemental; invalidity of part.

            This act shall be construed as supplemental to existing legislation; and if any clause, paragraph, subsection or section of this act shall be held invalid or unconstitutional, it shall be conclusively presumed that the legislature would have enacted the remainder of this act without such invalid or unconstitutional clause, paragraph, subsection or section.

History: L. 1955, ch. 279, § 3; June 30.

8-1008. Alcohol and drug safety action program; evaluation and supervision of persons convicted of violation of 8-1567 or comparable city ordinance; certification of programs; reports of administrative judge; fees, disposition.

            (a) As used in this section, "provider" means: (1) A professional licensed by the behavioral sciences regulatory board to diagnose and treat mental or substance use disorders at the independent level who is compliant with the requirements set forth by the secretary for aging and disability services as described in subsection (f); or (2) a professional licensed by the behavioral sciences regulatory board who is working in an alcohol and drug treatment facility licensed by the secretary for aging and disability services as meeting the requirements described in subsection (f).

            (b) A provider shall provide:

            (1) Alcohol and drug evaluations, prior to sentencing, of any person who is convicted of a violation of K.S.A. 8-2,144 or 8-1567 or [§ 2 of 2012 SB 60], and amendments thereto, or the ordinance of a city or resolution of a county in this state which prohibits the acts prohibited by those statutes; and

            (2) alcohol and drug evaluations of persons whom the prosecutor considers for eligibility or finds eligible to enter a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 8-1567 or [§ 2 of 2012 SB 60], and amendments thereto, or the ordinance of a city or resolution of a county in this state which prohibits the acts prohibited by that statute;

            (c) A provider shall be capable of providing, within the judicial district:

            (1) The evaluations, required under subsection (a) (b);

            (2) the alcohol and drug evaluation report required under subsection(d) or (e);

            (3) the follow-up duties specified under subsection or (d) or (e) for persons who prepare the alcohol and drug evaluation report; and

            (4) any other functions and duties specified by law. The secretary for aging and disability services shall provide each judicial district with an electronic list of providers, and except as provided further, such list shall be used when selecting a provider to be used as described in subsections (d) and (e). The secretary for aging and disability services shall also make all such lists publicly available on the official website of the Kansas department for aging and disability services. Any provider performing services in any judicial district under this section prior to July 1, 2011, may continue to perform those services until July 1, 2013.

            (d) (1) Except as provided further, prior to sentencing, an alcohol and drug evaluation shall be conducted on any person who is convicted of a violation of K.S.A. 8-2,144 or 8-1567 or [§ 2 of 2012 SB 60], and amendments thereto, or the ordinance of a city or resolution of a county in this state which prohibits the acts prohibited by those statutes. The alcohol and drug evaluation report shall be made available to and shall be considered by the court prior to sentencing. Except as provided further, the court shall order that the cost of any alcohol and drug evaluation for any person shall be paid by such person to the provider at the time of service. If the court finds that such person is indigent, the provider shall agree to accept payment as ordered by the court and the court shall order that the cost of any alcohol and drug evaluation be paid to the provider by such person as part of the judgment. The cost of any such evaluation shall be not less than $150.

            (2) The provisions of this subsection shall not apply to any person convicted pursuant to subsection (b)(1)(C) of K.S.A. 8-2,144, subsection (b)(1)(C), (b)(1)(D) or (b)(1)(E) of K.S.A. 8-1567 or subsection (b)(1)(B), (b)(1)(C) or (b)(1)(D) of [§ 2 of 2012 SB 60], and amendments thereto.

            (e) An alcohol and drug evaluation shall be conducted on any person whom the prosecutor considers for eligibility or finds eligible to enter a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 8-1567 or [§ 2 of 2012 SB 60], and amendments thereto, or the ordinance of a city or resolution of a county in this state which prohibits the acts prohibited by that statute. The alcohol and drug evaluation report shall be made available to the prosecuting attorney and shall be considered by the prosecuting attorney. The cost of any alcohol and drug evaluation for any person shall be paid by such person to the provider at the time of service, and shall be not less than $150.

            (f) On and after July 1, 2013, all alcohol and drug evaluations conducted pursuant to this section shall utilize a standardized substance use evaluation approved by the secretary for aging and disability services and be submitted in a format approved by the secretary for aging and disability services. On or before July 1, 2013, the secretary for aging and disability services shall promulgate rules and regulations to implement this section.

History: L. 1982, ch. 144, § 10; L. 1983, ch. 37, § 1; L. 1985, ch. 51, § 1; L. 1990, ch. 94, § 2; L. 1994, ch. 350, § 1; L. 1995, ch. 208, § 3; L. 1999, ch. 57, § 1; L. 2001, ch. 200, § 4, L. 2011, ch. 105, § 10; L. 2012, ch. 172, § 13; L. 2014, ch. 115, § 2; July 1.

8-1009. Determination by prosecuting attorney of whether diversion agreement to be allowed.

            (a) Upon the filing of a first complaint, indictment or information alleging a person has violated K.S.A.8-1567, and amendments thereto, or a county resolution which prohibits the acts prohibited by that statute, and prior to conviction thereof, the district attorney or county attorney shall determine whether the defendant shall be allowed to enter into a diversion agreement in accordance with this act.

            (b) Upon the filing of a first complaint, citation or notice to appear alleging a person has violated a city ordinance which prohibits the acts prohibited by K.S.A.8-1567, and amendments thereto, and prior to conviction thereof, the city attorney shall determine whether the defendant shall be allowed to enter into a diversion agreement in accordance with this act.

History: L. 1982, ch. 144, § 11; L. 2011, ch. 105, § 11; July 1.

8-1010. Severability of Laws of 1982, ch. 144.

            If any clause, paragraph, subsection or section of this act shall be held invalid or unconstitutional it shall be conclusively presumed that the legislature would have enacted the remainder of this act without such invalid or unconstitutional clause, paragraph, subsection or section.

History: L. 1982, ch. 144, § 21; July 1.

8-1011. Immunity from liability for damage to vehicle operated by or in control of person arrested or in custody.

            A law enforcement officer, and the state or any political subdivision of the state that employs a law enforcement officer, arresting or taking custody of a person for any offense involving the operation of or attempt to operate a vehicle while under the influence of alcohol or drugs, or both, shall have immunity from any civil or criminal liability for the care and custody of the vehicle that was being operated by or was in the physical control of the person arrested or in custody if the law enforcement officer acts in good faith and exercises due care.

History: L. 1985, ch. 48, § 5; L. 1993, ch. 259, § 3; July 1.

8-1012. Preliminary screening test of breath for alcohol concentration; request by officer, grounds; notice required; refusal to take test is traffic infraction; use of results of test; additional tests.

            (a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent to submit to a preliminary screening test of the person’s breath subject to the provisions set out in subsection

            (b). A law enforcement officer may request a person who is operating or attempting to operate a vehicle within this state to submit to a preliminary screening test of the person’s breath or saliva, or both, if the officer has reasonable suspicion to believe the person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs or both alcohol and drugs.

(c) At the time the test is requested, the person shall be given oral notice that:

            (1) There is no right to consult with an attorney regarding whether to submit to testing;

            (2) refusal to submit to testing is a traffic infraction; and

            (3) further testing may be required after the preliminary screening test.

Failure to provide the notice shall not be an issue or defense in any action. The law enforcement officer then shall request the person to submit to the test.

            (d) Refusal to take and complete the test as requested is a traffic infraction. If the person submits to the test, the results shall be used for the purpose of assisting law enforcement officers in determining whether an arrest should be made and whether to request the tests authorized by K.S.A. 8-1001 and amendments thereto. A law enforcement officer may arrest a person based in whole or in part upon the results of a preliminary screening test. Such results shall not be admissible in any civil or criminal action concerning the operation of or attempted operation of a vehicle except to aid the court or hearing officer in determining a challenge to the validity of the arrest or the validity of the request to submit to a test pursuant to K.S.A. 8-1001 and amendments thereto. Following the preliminary screening test, additional tests may be requested pursuant to K.S.A. 8-1001 and amendments thereto.

            (e) Any preliminary screening of a person’s breath shall be conducted with a device approved pursuant to K.S.A. 65-1,107, and amendments thereto.

History: L. 1986, ch. 40, § 1; L. 1993, ch. 259, § 4; L. 2005, ch. 172, § 3; L. 2006, ch. 211, § 1; L. 2011, ch. 105, § 12; L. 2012, ch. 172, § 14; July 1.

8-1013. Definitions.

            As used in K.S.A. 8-1001 through 8-1010, 8-1011, 8-1012, 8-1014, 8-1015, 8-1016, 8-1017 and 8-1018, and amendments thereto, and this section:

            (a) "Alcohol concentration" means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.

            (b) (1) "Alcohol or drug-related conviction" means any of the following:

            (A) Conviction of vehicular battery or aggravated vehicular homicide, if the crime is committed while committing a violation of K.S.A. 8-1567, and amendments thereto or the ordinance of a city or resolution of a county in this state which prohibits any acts prohibited by that statute, or conviction of a violation of K.S.A. 8-2,144 or 8-1567 or K.S.A. 2012 Supp. 8-1025, and amendments thereto; or conviction of a violation of aggravated battery as described in subsection (b)(3) of K.S.A. 2012 Supp. 21-5413, and amendments thereto;

            (B) conviction of a violation of a law of another state which would constitute a crime described in subsection (b)(1)(A) if committed in this state;

            (C) conviction of a violation of an ordinance of a city in this state or a resolution of a county in this state which would constitute a crime described in subsection (b)(1)(A), whether or not such conviction is in a court of record; or

            (D) conviction of an act which was committed on a military reservation and which would constitute a violation of K.S.A. 8-2,144 or 8-1567, or [§ 2 of 2012 SB 60], and amendments thereto, or would constitute a crime described in subsection (b)(1)(A) if committed off a military reservation in this state.

            (2) For the purpose of determining whether an occurrence is a first, second or subsequent occurrence: (A) "Alcohol or drug-related conviction" also includes entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging commission of a crime described in subsection (b)(1), including a diversion agreement entered into prior to the effective date of this act; and (B) it is irrelevant whether an offense occurred before or after conviction or diversion for a previous offense.

            (c) "Division" means the division of vehicles of the department of revenue.

            (d) "Ignition interlock device" means a device which uses a breath analysis mechanism to prevent a person from operating a motor vehicle if such person has consumed an alcoholic beverage.

            (e) "Occurrence" means a test refusal, test failure or alcohol or drug-related conviction, or any combination thereof arising from one arrest, including an arrest which occurred prior to the effective day of this act.

            (f) "Other competent evidence" includes: (1) Alcohol concentration tests obtained from samples taken three hours or more after the operation or attempted operation of a vehicle; and (2) readings obtained from a partial alcohol concentration test on a breath testing machine.

            (g) "Samples" includes breath supplied directly for testing, which breath is not preserved.

            (h) "Test failure" or "fails a test" refers to a person’s having results of a test administered pursuant to this act, other than a preliminary screening test, which show an alcohol concentration of .08 or greater in the person’s blood or breath, and includes failure of any such test on a military reservation.

            (i) "Test refusal" or "refuses a test" refers to a person’s failure to submit to or complete any test of the person’s blood, breath, urine or other bodily substance, other than a preliminary screening test, in accordance with this act, and includes refusal of any such test on a military reservation.

            (j) "Law enforcement officer" has the meaning provided by K.S.A. 21-5111 and amendments thereto, and includes any person authorized by law to make an arrest on a military reservation for an act which would constitute a violation of K.S.A. 8-1567, or [§ 2 of 2012 SB 60], and amendments thereto, if committed off a military reservation in this state.

History: L. 1988, ch. 47, § 6; L. 1993, ch. 259, § 5; L. 2005, ch. 86, § 1; L. 2011, ch. 105, § 13; L. 2012, ch. 172, § 15; L. 2013, ch. 122 § 3; July 1.

8-1014. Suspension and restriction of driving privileges for test refusal, test failure or alcohol or drug-related conviction.

            (a) Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person refuses a test, the division, pursuant to K.S.A. 8-1002, and amendments thereto, shall:

            (1) On the person’s first occurrence, suspend the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for two years to driving only a motor vehicle equipped with an ignition interlock device;

            (2) on the person’s second occurrence, suspend the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for three years to driving only a motor vehicle equipped with an ignition interlock device;

            (3) on the person’s third occurrence, suspend the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for four years to driving only a motor vehicle equipped with an ignition interlock device;

            (4) on the person’s fourth occurrence, suspend the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for five years to driving only a motor vehicle equipped with an ignition interlock device; and

            (5) on the person’s fifth or subsequent occurrence, suspend the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for 10 years to driving only a motor vehicle equipped with an ignition interlock device.

            (b) (1) Except as provided by subsections (b)(2) and (e) and K.S.A. 8-2,142, and amendments thereto, if a person fails a test or has an alcohol or drug-related conviction in this state, the division shall:

            (A) On the person’s first occurrence, suspend the person’s driving privileges for 30 days and at the end of the suspension, restrict the person’s driving privileges as provided by subsection (b) of K.S.A. 8-1015, and amendments thereto,

            (B) on the person’s second, occurrence, suspend the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;

            (C) on the person’s third occurrence, suspend the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for two years to driving only a motor vehicle equipped with an ignition interlock device;

            (D) on the person’s fourth occurrence, suspend the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for three years to driving only a motor vehicle equipped with an ignition interlock device; and

            (E) on the person’s fifth or subsequent occurrence, suspend the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for 10 years to driving only a motor vehicle equipped with an ignition interlock device.

            (2) Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person fails a test or has an alcohol or drug-related conviction in this state and the person’s blood or breath alcohol concentration is .15 or greater, the division shall:

            (A) On the person’s first occurrence, suspend the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;

            (B) on the person’s second occurrence, suspend the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for two years to driving only a motor vehicle equipped with an ignition interlock device;

            (C) on the person’s third occurrence, suspend the person’s driving privileges for one year and at the end of the suspension restrict the person’s driving privileges for three years to driving only a motor vehicle equipped with an ignition interlock device;

            (D) on the person’s fourth occurrence, suspend the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for four years to driving only a motor vehicle equipped with an ignition interlock device; and

            (E) on the person’s fifth or subsequent occurrence, suspend the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for 10 years to driving only a motor vehicle equipped with an ignition interlock device.

            (3) Whenever a person’s driving privileges have been restricted to driving only a motor vehicle equipped with an ignition interlock device for 10 years under this section, such person may petition any district court for relief from such restriction after five years of such restriction have been served. The court shall consider, but not be limited to, whether: (A) Such person’s driving privileges have been restricted, suspended, revoked or disqualified pursuant to another action by the division or a court; and (B) such person proves installation, maintenance and use of an ignition interlock device approved by the division throughout the five-year period. If the court finds that the person’s driving privileges should be restored, then the court shall electronically report such order to the division. The division, upon receiving such order, shall restore such person’s driving privileges, unless such person’s driving privileges have been restricted, suspended, revoked or disqualified pursuant to another action by the division or a court.

            (c) Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person who is less than 21 years of age fails a test or has an alcohol or drug-related conviction in this state, penalties shall be imposed pursuant to subsection (b).

            (d) Whenever the division is notified by a provider, as defined in K.S.A. 8-1008, and amendments thereto, or a court that the person has failed to follow any recommendation made by the provider or otherwise ordered by a court for a conviction of a violation of K.S.A. 8-1567 or [§ 2 of 2012 SB 60], and amendments thereto, the division shall suspend the person’s driving privileges until the division receives notice of the person’s completion of such recommendation.

            (e) Except as provided in K.S.A. 8-2,142, and amendments thereto, if a person’s driving privileges are subject to suspension pursuant to this section for a test refusal, test failure or alcohol or drug-related conviction arising from the same arrest, the period of such suspension shall not exceed the longest applicable period authorized by subsection (a) or (b), and such suspension periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of such suspension as authorized by subsection (a) or (b), such person shall receive credit for any period of time for which such person’s driving privileges were suspended while awaiting any hearing or final order authorized by this act. If a person’s driving privileges are subject to restriction pursuant to this section for a test failure or alcohol or drug-related conviction arising from the same arrest, the restriction periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of restriction, the person shall receive credit for any period of suspension imposed for a test refusal arising from the same arrest.

            (f) If the division has taken action under subsection (a) for a test refusal or under subsection (b) for a test failure and such action is stayed pursuant to K.S.A. 8-259, and amendments thereto, or if temporary driving privileges are issued pursuant to K.S.A. 8-1020, and amendments thereto, the stay or temporary driving privileges shall not prevent the division from taking the action required by subsection (b) for an alcohol or drug-related conviction.

            (g) The provisions of subsections (a), (b) and (c), as amended by this act and section 14 of chapter 105 of the 2011 Session Laws of Kansas, may be applied retroactively only if requested by a person who has had such person’s driving privileges suspended or restricted pursuant to subsection (a), (b) or (c) prior to such amendment. Such person may apply to the division to have the penalties applied retroactively, as provided under subsection (g) of K.S.A. 8-1015, and amendments thereto.

            (h) When modifying penalties pursuant to subsection (g), the division shall credit any suspension or revocation time in excess of one year which was imposed and served prior to retroactive application of the provisions of subsections (a), (b) and (c), as amended by this act and section 14 of chapter 105 of the 2011 Session Laws of Kansas, toward the required ignition interlock restriction period imposed pursuant to the retroactive application of such provisions if: (1) The person’s driving record indicates no driving by the person during the applicable suspension or revocation period; and (2) the person completes a form prescribed by the division indicating that the person did not drive during the applicable suspension or revocation period.

            (i) As used in this section, "suspension" includes any period of suspension and any period of restriction as provided in subsection (a) of K.S.A. 8-1015, and amendments thereto.

            History: L. 1988, ch. 47, § 7; L. 1989, ch. 38, § 37; L. 1990, ch. 48, § 2; L. 1990, ch. 47, § 2; L. 1993, ch. 259, § 6; L. 1993, ch. 275, § 3; L. 1994, ch. 353, § 10; L. 1999, 125, § 18; L. 2001, ch. 200, § 5; L. 2006, ch. 173, § 3; L. 2007, ch. 181, § 5; L. 2010, ch. 153, § 1; L. 2011, ch. 105, 14; L. 2012, ch. 172, § 16; July 1.

8-1015. Same; authorized restrictions of driving privileges; ignition interlock device.

            (a) (1) Except as provided in subsection (a)(2), whenever a person’s driving privileges have been suspended for one year as provided in subsection (a) of K.S.A. 8-1014, and amendments thereto, after 90 days of such suspension, such person may apply to the division for such person’s driving privileges to be restricted for the remainder of the one-year suspension period to driving only a motor vehicle equipped with an ignition interlock device and only for the purposes of getting to and from: Work, school or an alcohol treatment program; and the ignition interlock provider for maintenance and downloading of data from the device.

            (2) Whenever a person’s driving privileges have been suspended for one year as provided in subsection (a)(1) of K.S.A. 8-1014, and amendments thereto, after 90 days of such suspension, such person may apply to the division for such person’s driving privileges to be restricted for the remainder of the one-year suspension period to driving only a motor vehicle equipped with an ignition interlock device and only under the circumstances provided by subsections (a)(1), (2), (3) and (4) of K.S.A. 8-292, and amendments thereto.

            (3) Except as provided in subsection (a)(4), whenever a person’s driving privileges have been suspended for one year as provided in subsection(b) of K.S.A. 8-1014, and amendments thereto, after 45 days of such suspension, such person may apply to the division for such person’s driving privileges to be restricted for the remainder of the one-year suspension period to driving only a motor vehicle equipped with an ignition interlock device and only for the purposes of getting to and from: Work, school or an alcohol treatment program; and the ignition interlock provider for maintenance and downloading of data from the device.

            (4) Whenever a person’s driving privileges have been suspended for one year as provided in subsection (b)(2)(A) of K.S.A. 8-1014, and amendments thereto, after 45 days of such suspension, such person may apply to the division for such person’s driving privileges to be restricted for the remainder of the one-year suspension period to driving only a motor vehicle equipped with an ignition interlock device and only under the circumstances provided by subsections (a)(1), (2), (3) and (4) of K.S.A. 8- 292, and amendments thereto.

            (5) The division shall assess an application fee of $100 for a person to apply to modify the suspension to restricted ignition interlock status.

            (6) The division shall approve the request for such restricted license unless such person’s driving privileges have been restricted, suspended, revoked or disqualified pursuant to another action by the division or a court. If the request is approved, upon receipt of proof of the installation of such device, the division shall issue a copy of the order imposing such

restrictions on the person’s driving privileges and such order shall be carried by the person at any time the person is operating a motor vehicle on the highways of this state. Except as provided in K.S.A. 8-1017, and amendments thereto, if such person is convicted of a violation of the restrictions, such person’s driving privileges shall be suspended for an additional year, in addition to any term of suspension or restriction as provided in subsection (a) or(b) of K.S.A. 8-1014, and amendments thereto.

            (b) (1) Except as provided in subsection (b)(2), when a person has completed the suspension pursuant to subsection (b)(1)(A) of K.S.A. 8-1014, and amendments thereto, the division shall restrict the person’s driving privileges for 180 days to driving only a motor vehicle equipped with an ignition interlock device.

            (2) When a person has completed the suspension pursuant to subsection (b)(1)(A) of K.S.A. 8-1014, and amendments thereto, the division shall restrict the person’s driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device if the records maintained by the division indicate that such person has previously: (A) Been convicted of a violation of K.S.A. 8-1599, and amendments thereto; (B) been convicted of a violation of K.S.A. 41-727, and amendments thereto; (C) been convicted of any violations listed in subsection (a) of K.S.A. 8-285, and amendments thereto; (D) been convicted of three or more moving traffic violations committed on separate occasions within a 12-month period; or (E) had such person’s driving privileges revoked, suspended, canceled or withdrawn.

            (c) Except as provided in subsection (b), when a person has completed the suspension pursuant to subsection(a) or(b) of K.S.A. 8- 1014, and amendments thereto, the division shall restrict the person’s driving privileges pursuant to subsection(a) or(b) of K.S.A. 8-1014, and amendments thereto, to driving only a motor vehicle equipped with an ignition interlock device. Upon restricting a person’s driving privileges pursuant to this subsection, the division shall issue a copy of the order imposing the restrictions which is required to be carried by the person at any time the person is operating a motor vehicle on the highways of this state.

            (d) Whenever an ignition interlock device is required by law, such ignition interlock device shall be approved by the division and maintained at the person’s expense. Proof of the installation of such ignition interlock device, for the entire period required by the applicable law, shall be provided to the division before the person’s driving privileges are fully reinstated.

            (e) Except as provided further, any person whose license is restricted to operating only a motor vehicle with an ignition interlock device installed may operate an employer’s vehicle without an ignition interlock device installed during normal business activities, provided that the person does not partly or entirely own or control the employer’s vehicle or business. The provisions of this subsection shall not apply to any person whose driving privileges have been restricted for the remainder of the one-year suspension period as provided in subsection (a)(1) or (a)(3).

            (f) Upon expiration of the period of time for which restrictions are imposed pursuant to this section, the licensee may apply to the division for the return of any license previously surrendered by the licensee. If the license has expired, the person may apply to the division for a new license, which shall be issued by the division upon payment of the proper fee and satisfaction of the other conditions established by law, unless the person’s driving privileges have been suspended or revoked prior to expiration.

            (g) Any person who has had the person’s driving privileges suspended restricted, or revoked pursuant to subsection (a), (b) or (c) of K.S.A. 8-1014, prior to the amendments by section 16 of chapter 172 of the 2012 Session Laws of Kansas and section 14 of chapter 105 of the 2011 Session Laws of Kansas, may apply to the division to have the suspension, restriction or revocation penalties modified in conformity with the provisions of subsection (a), (b) or (c) of K.S.A. 8-1014, and amendments thereto. The division shall assess an application fee of $100 for a person to apply to modify the suspension, restriction or revocation penalties previously issued. The division shall modify the suspension, restriction or revocation penalties, unless such person’s driving privileges have been restricted, suspended, revoked or disqualified pursuant to another action by the division or a court.

            (h) The division shall remit all application fees collected pursuant to subsections (a) and (g) to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury and shall credit such moneys to the division of vehicles operating fund each fiscal year.. On and after an aggregate amount of $100,000 is credited to the division of vehicles operating fund each fiscal year, the entire amount of such remittance shall be credited to the community corrections supervision fund created by K.S.A. 2011 Supp. 75-52,113, and amendments thereto. The application fee established in this section shall be the only fee collected or moneys in the nature of a fee collected for such application. Such fee shall only be established by an act of the legislature and no other authority is established by law or otherwise to collect a fee.

History: L. 1988, ch. 47, § 12; L. 1989, ch. 38, § 39; L. 1989, ch. 38, § 40; L. 1993, ch. 259, § 7; L. 1994, ch. 353, § 11; L. 1996, ch. 216, § 2; L. 2001, ch. 200, § 6; L. 2006, ch. 173, § 4; L. 2010, ch. 153, § 2; L. 2011, ch. 105, § 15, L. 2012, ch. 172, § 17; L. 2014, ch. 67, § 1; July 1.

8-1016. Same; ignition interlock devices; approval by division; immunity from civil and criminal liability.

            (a) The secretary of revenue may adopt rules and regulations for:

            (1) The approval by the division of models and classes of ignition interlock devices suitable for use by persons whose driving privileges have been restricted to driving a vehicle equipped with such a device;

            (2) the calibration and maintenance of such devices, which shall be the responsibility of the manufacturer.

            (3) ensuring that each manufacturer approved provides a reasonable statewide service network where such devices may be obtained, repaired, replaced or serviced and such service network can be accessed 24 hours per day through a toll-free phone service.

            In adopting rules and regulations for approval of ignition interlock devices under this section, the secretary of revenue shall require that the manufacturer or the manufacturer’s representatives calibrate and maintain the devices at intervals not to exceed 60 days. Calibration and maintenance shall include but not be limited to physical inspection of the device, the vehicle and wiring of the device to the vehicle for signs of tampering, calibration of the device and downloading of all data contained within the device’s memory and reporting of any violation or noncompliance to the division.

            (4) The division shall adopt by rules and regulations participant requirements for proper use and maintenance of a certified ignition interlock device during any time period the person’s license is restricted by the division to only operating a motor vehicle with an ignition interlock device installed and by rules and regulations the reporting requirements of the approved manufacturer to the division relating to the person’s proper use and maintenance of a certified ignition interlock device.

            (5) The division shall require that each manufacturer provide a credit of at least 2% of the gross program revenues in the state as a credit for those persons who have otherwise qualified to obtain an ignition interlock restricted license under this act who are indigent as evidenced by qualification and eligibility for the federal food stamp program.

            (b) If the division approves an ignition interlock device in accordance with rules and regulations adopted under this section, the division shall give written notice of the approval to the manufacturer of the device. Such notice shall be admissible in any civil or criminal proceeding in this state.

            (c) The manufacturer of an ignition interlock device shall reimburse the division for any cost incurred in approving or disapproving such device under this section.

            (d) Neither the state nor any agency, officer or employee thereof shall be liable in any civil or criminal proceeding arising out of the use of an ignition interlock device approved under this section.

History: L. 1988, ch. 48, § 1; L. 1988, ch. 47, § 18; L. 1994, ch. 319, § 4; L. 2001, ch. 200, § 7 (SB 67), July 1.

8-1017. Same; circumvention of ignition interlock device; penalty.

            (a) No person shall:

            (1) Tamper with an ignition interlock device, circumvent it or render it inaccurate or inoperative;

            (2) request or solicit another to blow into an ignition interlock device, or start a motor vehicle equipped with such device, providing an operable motor vehicle to a person whose driving privileges have been restricted to driving a motor vehicle equipped with such device;

            (3) blow into an ignition interlock device, or start a motor vehicle equipped with such device, providing an operable motor vehicle to a person whose driving privileges have been restricted to driving a motor vehicle equipped with such device; or

            (4) operate a vehicle not equipped with an ignition interlock device while such person’s driving privileges have been restricted to driving a motor vehicle equipped with such device.

            (b) Violation of this section is a class A, nonperson misdemeanor.

            (c) In addition to any other penalties provided by law:

            (1) (A) On a first conviction of a violation of subsection (a)(1) or (a)(2), the division shall extend the ignition interlock restriction period on the person’s driving privileges for an additional 90 days; and

            (B) on a second or subsequent conviction of a violation of subsection (a)(1) or (a)(2), the division shall restart the original ignition interlock restriction period on the person’s driving privileges; and

            (2) on a conviction of a violation of subsection (a)(4), the division shall restart the original ignition interlock restriction period on the person’s driving privileges.

History: L. 1988, ch. 48, § 2; L. 1994, ch. 353, § 12; L. 2011, ch. 105, § 16; July 1.

8-1019. Victim impact statement and restitution requirements.

            (a) As used in this section, 'alcohol or drug-related offense' means: (1) A violation of K.S.A. 8-1567, and amendments thereto, or any ordinance of a city or resolution of a county prohibiting the acts prohibited by that statute; or (2) any other offense arising out of the operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both.

            (b) Prior to the sentencing of a person convicted of an alcohol or drug-related offense which resulted in serious bodily injury to a person or the death of a person, the court shall cause reasonable attempts to be made to notify the victim or the victim's family, who shall be given an opportunity to make a victim impact statement as to the impact of the offense on the victim's life or the lives of the victim's family members.

            (c) Any court sentencing a person convicted of an alcohol or drug-related offense which resulted in personal injury to a person, the death of a person or injury to a person's property may require, in addition to any other penalty provided by law, that the convicted person pay restitution as a condition of probation or parole.

History: L. 1988, ch. 47, § 4; L. 1994, ch. 319, § 5; May 19.

8-1020. Driver's License Suspension Hearing Procedures

            (a) Any licensee served with an officer’s certification and notice of suspension pursuant to K.S.A. 8-1002, and amendments thereto, may request an administrative hearing. Such request may be made either by:

            (1) Mailing a written request which is postmarked 14 days after service of notice, or;

            (2) transmitting a written request by electronic facsimile which is received by the division within 14 days after service of notice.

            (b) If the licensee makes a timely request for an administrative hearing and makes a timely payment of the required hearing fee, any temporary license issued pursuant to K.S.A. 8-1002, and amendments thereto, shall remain in effect until the 30th day after the effective date of the decision made by the division.

            (c) If the licensee fails to make a timely request for an administrative hearing together with the required hearing fee, the licensee’s driving privileges shall be suspended or suspended and then restricted in accordance with the notice of suspension served pursuant to K.S.A. 8-1002, and amendments thereto.

            (d) (1) Upon receipt of a timely request for a hearing together with the required hearing fee, the division shall forthwith set the matter for hearing before a representative of the director and provide notice of the extension of temporary driving privileges. The hearing shall be held by telephone conference call unless the hearing request includes a request that the hearing be held in person before a representative of the director. The officer’s certification and notice of suspension shall inform the licensee of the availability of a hearing before a representative of the director. Except for a hearing conducted by telephone or conference call, the hearing shall be conducted in the county where the arrest occurred or a county adjacent thereto.

            (2) The division shall charge a fee of $50 for a hearing, to be paid within the time period for making a timely request for a hearing, whether held by telephone or in person, to be applied by the division for administrative costs to conduct the hearing. The division shall remit all hearing fees to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury to the credit of the division of vehicles operating fund. The hearing fee established in this section shall be the only fee collected or moneys in the nature of a fee collected for such hearing. Such fee shall only be established by an act of the legislature and no other authority is established by law or otherwise to collect a fee.

            (e) Except as provided in subsection (f), prehearing discovery shall be limited to the following documents, which shall be provided to the licensee or the licensee’s attorney no later than seven days prior to the date of hearing:

(1) The officer’s certification and notice of suspension;

(2) in the case of a breath or blood test failure, copies of documents indicating the result of any evidentiary breath or blood test administered at the request of a law enforcement officer;

(3) in the case of a breath test failure, a copy of the affidavit showing certification of the officer and the instrument; and

(4) in the case of a breath test failure, a copy of the Kansas department of health and environment testing protocol checklist.

(f) At or prior to the time the notice of hearing is sent, the division shall issue an order allowing the licensee or the licensee’s attorney to review any video or audio tape record made of the events upon which the administrative action is based. Such review shall take place at a reasonable time designated by the law enforcement agency and shall be made at the location where the video or audio tape is kept. The licensee may obtain a copy of any such video or audio tape upon request and upon payment of a reasonable fee to the law enforcement agency, not to exceed $25 per tape.

            (g) Witnesses at the hearing shall be limited to the licensee, to any law enforcement officer who signed the certification form and to one other witness who was present at the time of the issuance of the certification and called by the licensee. The presence of the certifying officer or officers shall not be required, unless requested by the licensee at the time of making the request for the hearing. The examination of a law enforcement officer shall be restricted to the factual circumstances relied upon in the officer’s certification.

            (h) (1) If the officer certifies that the person refused the test, the scope of the hearing shall be limited to whether:

            (A) A law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person’s system or was under the age of 21 years and was operating or attempting to operate a vehicle while having alcohol or other drugs in such person’s system;

            (B) the person was in custody or arrested or was involved in a vehicle accident or collision resulting in property damage, personal injury or death;

            (C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; and

            (D) the person refused to submit to and complete a test as requested by a law enforcement officer.

            (2) If the officer certifies that the person failed a breath test, the scope of the hearing shall be limited to whether:

            (A) A law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person’s system or was under the age of 21 years and was operating or attempting to operate a vehicle while having alcohol or other drugs in such person’s system;

            (B) the person was in custody or arrested or was involved in a vehicle accident or collision resulting in property damage, personal injury or death;

            (C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto;

            (D) the testing equipment used was certified by the Kansas department of health and environment;

            (E) the person who operated the testing equipment was certified by the Kansas department of health and environment;

            (F) the testing procedures used substantially complied with the procedures set out by the Kansas department of health and environment;

            (G) the test result determined that the person had an alcohol concentration of .08 or greater in such person’s breath; and

            (H) the person was operating or attempting to operate a vehicle.

            (3) If the officer certifies that the person failed a blood test, the scope of the hearing shall be limited to whether:

            (A) A law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person’s system or was under the age of 21 years and was operating or attempting to operate a vehicle while having alcohol or other drugs in such person’s system;

            (B) the person was in custody or arrested or was involved in a vehicle accident or collision resulting in property damage, personal injury or death;

            (C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto;

            (D) the testing equipment used was reliable;

            (E) the person who operated the testing equipment was qualified;

            (F) the testing procedures used were reliable;

            (G) the test result determined that the person had an alcohol concentration of .08 or greater in such person’s blood; and

            (H) the person was operating or attempting to operate a vehicle.

            (i) At a hearing pursuant to this section, or upon court review of an order entered at such a hearing, an affidavit of the custodian of records at the Kansas department of health and environment stating that the breath testing device was certified and the operator of such device was certified on the date of the test shall be admissible into evidence in the same manner and with the same force and effect as if the certifying officer or employee of the Kansas department of health and environment had testified in person. A certified operator of a breath testing device shall be competent to testify regarding the proper procedures to be used in conducting

the test.

            (j) At a hearing pursuant to this section, or upon court review of an order entered at such a hearing, in which the report of blood test results have been prepared by the Kansas bureau of investigation or other forensic laboratory of a state or local law enforcement agency are to be introduced as evidence, the report, or a copy of the report, of the findings of the forensic examiner shall be admissible into evidence in the same manner and with the same force and effect as if the forensic examiner who performed such examination, analysis, comparison or identification and prepared the report thereon had testified in person.

            (k) At the hearing, the licensee has the burden of proof by a preponderance of the evidence to show that the facts set out in the officer’s certification are false or insufficient and that the order suspending or suspending and restricting the licensee’s driving privileges should be dismissed.

            (l) Evidence at the hearing shall be limited to the following:

            (1) The documents set out in subsection (e);

            (2) the testimony of the licensee;

            (3) the testimony of any certifying officer;

            (4) the testimony of any witness present at the time of the issuance of the certification and called by the licensee;

            (5) any affidavits submitted from other witnesses;

            (6) any documents submitted by the licensee to show the existence of a medical condition, as described in K.S.A. 8-1001, and amendments thereto; and

            (7) any video or audio tape record of the events upon which the administrative action is based.

            (m) After the hearing, the representative of the director shall enter an order affirming the order of suspension or suspension and restriction of driving privileges or for good cause appearing therefor, dismiss the administrative action. If the representative of the director enters an order affirming the order of suspension or suspension and restriction of driving privileges, the suspension or suspension and restriction shall begin on the 30th day after the effective date of the order of suspension or suspension and restriction. If the person whose privileges are suspended is a nonresident licensee, the license of the person shall be forwarded to the appropriate licensing authority in the person’s state of residence if the result at the hearing is adverse to such person or if no timely request for a hearing is received.

            (n) The representative of the director may issue an order at the close of the hearing or may take the matter under advisement and issue a hearing order at a later date. If the order is made at the close of the hearing, the licensee or the licensee’s attorney shall be served with a copy of the order by the representative of the director. If the matter is taken under advisement or if the hearing was by telephone conference call, the licensee and any attorney who appeared at the administrative hearing upon behalf of the licensee each shall be served with a copy of the hearing order by mail. Any law enforcement officer who appeared at the hearing also may be mailed a copy of the hearing order. The effective date of the hearing order shall be the date upon which the hearing order is served, whether served in person or by mail.

            (o) The licensee may file a petition for review of the hearing order pursuant to K.S.A. 8-259, and amendments thereto. Upon filing a petition for review, the licensee shall serve the secretary of revenue with a copy of the petition and summons. Upon receipt of a copy of the petition for review by the secretary, the temporary license issued pursuant to subsection (b) shall be extended until the decision on the petition for review is final.

            (p) Such review shall be in accordance with this section and the Kansas judicial review act. To the extent that this section and any other provision of law conflicts, this section shall prevail. The petition for review shall be filed within 14 days after the effective date of the order. Venue of the action for review is the county where the person was arrested or the accident occurred, or, if the hearing was not conducted by telephone conference call, the county where the administrative proceeding was held. The action for review shall be by trial de novo to the court and the evidentiary restrictions of subsection (l) shall not apply to the trial de novo. The court shall take testimony, examine the facts of the case and determine whether the petitioner is entitled to driving privileges or whether the petitioner’s driving privileges are subject to suspension or suspension and restriction under the provisions of this act. If the court finds that the grounds for action by the agency have been met, the court shall affirm the agency action.

            (q) Upon review, the licensee shall have the burden to show that the decision of the agency should be set aside.

            (r) Notwithstanding the requirement to issue a temporary license in K.S.A. 8-1002, and amendments thereto, and the requirements to extend the temporary license in this section, any such temporary driving privileges are subject to restriction, suspension, revocation or cancellation as provided in K.S.A. 8-1014, and amendments thereto, or for other cause.

            (s). Upon motion by a party, or on the court’s own motion, the court may enter an order restricting the driving privileges allowed by the temporary license provided for in K.S.A. 8-1002, and amendments thereto, and in this section. The temporary license also shall be subject to restriction, suspension, revocation or cancellation, as set out in K.S.A. 8-1014, and amendments thereto, or for other cause.

            (t) The facts found by the hearing officer or by the district court upon a petition for review shall be independent of the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence. The disposition of those criminal charges shall not affect the suspension or suspension and restriction to be imposed under this section.

            (u) All notices affirming or canceling a suspension under this section, all notices of a hearing held under this section and all issuances of temporary driving privileges pursuant to this section shall be sent by first-class mail and a United States post office certificate of mailing shall be obtained therefor. All notices so mailed shall be deemed received three days after mailing, except that this provision shall not apply to any licensee where such application would result in a manifest injustice.

            (v) The provisions of K.S.A. 60-206, and amendments thereto, regarding the computation of time shall be applicable in determining the time for requesting an administrative hearing as set out in subsection (a) and shall apply to the time for filing a petition for review pursuant to subsection (o) and K.S.A. 8-259, and amendments thereto.

History: L. 2001, ch. 67, §1; L. 2007, ch. 181, § 6; L. 2010, ch. 17, § 18; L. 2010, ch. 135, § 6; L. 2011, ch. 91, § 3; L. 2011, ch. 105, § 17; L. 2012, ch. 172, § 18; L. 2013, ch. 122, § 4; July 1.

8-1021. Impoundment of motor vehicle for 8-1567 violation; failure to pay fees or take repossession; disposition of vehicle.

            If the owner of a motor vehicle which has been impounded pursuant to K.S.A. 8-1567 or K.S.A. 2003 Supp. 8-1022, and amendments thereto, refuses to pay any towing, impoundment, storage or other fees relating to the impoundment or immobilization of such vehicle or fails to take possession of such vehicle within 30 days following the date of the expiration of the impoundment period, such vehicle shall be deemed abandoned and the vehicle may be disposed of by the person having possession of such vehicle. If the person having possession of such vehicle is a public agency, disposition of such vehicle shall be in compliance with the procedures for notice and public auction provided by paragraph (2) of subsection (a) of K.S.A. 8-1102, and amendments thereto. If the person having possession of such vehicle is not a public agency, disposition of such vehicle shall be in compliance with K.S.A. 8-1103 through 8-1108, and amendments thereto.

History: L. 2003, ch. 100, § 2; July 1.

8-1022. Permitting driving in violation of 8-1014; penalties.

            (a) It shall be unlawful for the owner of a motor vehicle to allow a person to drive such vehicle when such owner knows or reasonably should have known such person was driving in violation of K.S.A. 8-1014, and amendments thereto.

            (b) Violation of this section is an unclassified misdemeanor punishable by a fine of not less than $500 nor more than $1,000. In addition to the fine imposed upon a person convicted of a violation of this section, the court may order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs. Prior to ordering the impoundment or immobilization of any such motor vehicle, the court shall consider the factors established in subsection (g) of K.S.A. 8-1567, and amendments thereto. Any personal property in a vehicle impounded or immobilized pursuant to this section may be retrieved prior to or during the period of such impoundment or immobilization.

History: L. 2003, ch. 100, § 3; L. 2011, ch. 105, § 18; July 1.

8-1023. Testing not considered medical care; information to be provided law enforcement officer; costs; assessment; privileges not applicable.

            (a) The testing and method of testing consented to under K.S.A. 8-1001, and amendments thereto, shall not be considered to have been conducted for any medical care or treatment purpose. The results of such test, the person’s name whose bodily substance is drawn or tested, the location of the test or procedure, the names of all health care providers and personnel who participated in the procedure or test, and the date and time of the test or procedure are required by law to be provided to the requesting law enforcement officer or the law enforcement officer’s designee after the requesting law enforcement officer has complied with K.S.A. 8-1001, and amendments thereto.

            (b) All costs of conducting any procedure or test requested by a law enforcement agency and authorized by K.S.A. 8-1001, and amendments thereto, including the costs of the evidence collection kits shall be charged to and paid by the county where the alleged offense was committed. Such county may be reimbursed such costs upon the costs being paid by the defendant as court costs assessed pursuant to K.S.A. 28-172a, and amendments thereto.

            (c) The cost assessed under K.S.A. 8-1001, and amendments thereto, shall be the then current medicaid rate for any such procedure or test, or both.

            (d) Notwithstanding any other law to the contrary, the collection and delivery of the sample and required information to the law enforcement officer pursuant to K.S.A. 8-1001, and amendments thereto, shall not be subject to the physician-patient privilege or any other law that prohibits the transfer, release or disclosure of the sample or of the required information.

History: L. 2008, ch. 170, § 2; July 1.

8-1024. Immunity of persons and entities involved in testing from liability.

            No medical care facility, clinical laboratory, medical clinic, other medical institution, person licensed to practice medicine or surgery, person acting under the direction of any such licensed person, licensed physician assistant, registered nurse, licensed practical nurse, medical technician, emergency medical technician, phlebotomist, health care provider or person who participates in good faith in the obtaining, withdrawal, collection or testing of blood, breath, urine or other bodily substance at the direction of a law enforcement officer pursuant to K.S.A. 8-1001, and amendments thereto, shall incur any civil, administrative or criminal liability as a result of such participation, regardless of whether or not the patient resisted or objected to the administration of the procedure or test.

History: L. 2008, ch. 170, § 3; July 1.

8-1025. Refusal of a chemical test; penalties.

            (a) Refusing to submit to a test to determine the presence of alcohol or drugs is refusing to submit to or complete a test or tests deemed consented to under subsection (a) of K.S.A. 8-1001, and amendments thereto, if such person has:

            (1) Any prior test refusal as defined in K.S.A. 8-1013, and amendments thereto, which occurred: (A) On or after July 1, 2001; and (B) when such person was 18 years of age or older; or

            (2) any prior conviction for a violation of K.S.A. 8-1567 or 8-2,144, and amendments thereto, or a violation of an ordinance of any city or resolution of any county which prohibits the acts that such section prohibits, or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging any such violations, which occurred:

            (A) On or after July 1, 2001; and

            (B) when such person was 18 years of age or older.

            (b) (1) Refusing to submit to a test to determine the presence of alcohol or drugs is:

            (A) On a first conviction a class A, nonperson misdemeanor. The person convicted shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,250 nor more than $1,750. The person convicted shall serve at least five consecutive days’ imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days’ imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 120 hours of confinement. Such 120 hours of confinement shall be a period of at least 48 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender’s work day. The court may place the person convicted under a house arrest program pursuant to K.S.A. 2011 Supp. 21-6609, and amendments thereto, to serve the five days’ imprisonment mandated by this subsection only after such person has served 48 consecutive hours’ imprisonment. The person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender’s location. The offender shall serve a minimum of 120 hours of confinement within the boundaries of the offender’s residence. Any exceptions to remaining within the boundaries of the offender’s residence provided for in the house arrest agreement shall not be counted as part of the 120 hours;

            (B) on a second conviction a class A, nonperson misdemeanor, except as provided in subsection (b)(1)(C). The person convicted shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,750 nor more than $2,500. The person convicted 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 mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 2,160 hours of confinement. Such 2,160 hours of confinement shall be a period of at least 48 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender’s work day. The court may place the person convicted under a house arrest program pursuant to K.S.A. 2011 Supp. 21-6609, and amendments thereto, to serve the 90 days’ imprisonment mandated by this subsection only after such person has served 48 consecutive hours’ imprisonment. The person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender’s location. The offender shall serve a minimum of 2,160 hours of confinement within the boundaries of the offender’s residence. Any exceptions to remaining within the boundaries of the offender’s residence provided for in the house arrest agreement shall not be counted as part of the 2,160 hours;

            (C) on a second conviction a nonperson felony if the person has a prior conviction which occurred within the preceding 10 years, not including any period of incarceration. The person convicted shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,750 nor more than $2,500. The person convicted 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 mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 2,160 hours of confinement. Such 2,160 hours of confinement shall be a period of at least 48 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender’s work day. The court may place the person convicted under a house arrest program pursuant to K.S.A. 2011 Supp. 21-6609, and amendments thereto, to serve the 90 days’ imprisonment mandated by this subsection only after such person has served 48 consecutive hours’ imprisonment. The person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender’s location. The offender shall serve a minimum of 2,160 hours of confinement within the boundaries of the offender’s residence. Any exceptions to remaining within the boundaries of the offender’s residence provided for in the house arrest agreement shall not be counted as part of the 2,160 hours; and

            (D) on a third or subsequent conviction a nonperson felony. The person convicted shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined $2,500. The person convicted 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 mandated by this subsection may be served in a work release program only after such person has served 72 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 2,160 hours of confinement. Such 2,160 hours of confinement shall be a period of at least 72 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender’s work day. The court may place the person convicted under a house arrest program pursuant to K.S.A. 2011 Supp. 21-6609, and amendments thereto, to serve the 90 days’ imprisonment mandated by this subsection only after such person has served 72 consecutive hours’ imprisonment. The person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender’s location. The offender shall serve a minimum of 2,160 hours of confinement within the boundaries of the offender’s residence. Any exceptions to remaining within the boundaries of the offender’s residence provided for in the house arrest agreement shall not be counted as part of the 2,160 hours.

            (2) The court may order that the term of imprisonment imposed pursuant to subsection (b)(1)(C) or (b)(1)(D) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 2011 Supp. 21-6804, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person’s discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines:

            (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not

available;

            (B) the person fails to meaningfully participate in the treatment program of the designated facility;

            (C) the person is disruptive to the security or operation of the designated facility; or

            (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility.

            The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.

            (3) In addition, for any conviction pursuant to subsection (b)(1)(B), (b)(1)(C) or (b)(1)(D), at the time of the filing of the judgment form or journal entry as required by K.S.A. 22-3426 or K.S.A. 2011 Supp. 21-6711, and amendments thereto, the court shall cause a certified copy to be sent to the officer having the offender in charge. The court shall determine whether the offender, upon release from imprisonment, shall be supervised by community correctional services or court services based upon the risk and needs of the offender. The risk and needs of the offender shall be determined by use of a risk assessment tool specified by the Kansas sentencing commission. The law enforcement agency maintaining custody and control of a defendant for imprisonment shall cause a certified copy of the judgment form or journal entry to be sent to the supervision office designated by the court and upon expiration of the term of imprisonment shall deliver the defendant to a location designated by the supervision office designated by the court. After the term of imprisonment imposed by the court, the person shall be placed on supervision to community correctional services or court services, as determined by the court, for a mandatory one-year period of supervision, which such period of supervision shall not be reduced. During such supervision, the person shall be required to participate in a multidisciplinary model of services for substance use disorders facilitated by a department of social and rehabilitation services designated care coordination agency to include assessment and, if appropriate, referral to a community based substance use disorder treatment including recovery management and mental health counseling as needed. The multidisciplinary team shall include the designated care coordination agency, the supervision officer, the social and rehabilitation services department designated treatment provider and the offender. Any violation of the conditions of such supervision may subject such person to revocation of supervision and imprisonment in jail for the remainder of the period of imprisonment, the remainder of the supervision period, or any combination or portion thereof.

            (4) In addition, prior to sentencing for any conviction pursuant to subsection (b)(1)(A), the court shall order the person to participate in an alcohol and drug evaluation conducted by a provider in accordance with K.S.A. 8-1008, and amendments thereto. The person shall be required to follow any recommendation made by the provider after such evaluation, unless otherwise ordered by the court.

            (c) Any person convicted of violating this section or an ordinance which prohibits the acts that this section prohibits who had one or more children under the age of 14 years in the vehicle at the time of the offense shall have such person’s punishment enhanced by one month of imprisonment. This imprisonment must be served consecutively to any other minimum mandatory penalty imposed for a violation of this section or an ordinance which prohibits the acts that this section prohibits. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.

            (d) The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessments and costs shall be required to be paid not later than 90 days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.

            (e) In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.

            (f) Prior to filing a complaint alleging a violation of this section, a prosecutor shall request and shall receive from the:

            (1) Division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state; and

            (2) Kansas bureau of investigation central repository all criminal history record information concerning such person.

            (g) The court shall electronically report every conviction of a violation of this section and every diversion agreement entered into in lieu of further criminal proceedings on a complaint alleging a violation of this section to the division. Prior to sentencing under the provisions of this section, the court shall request and shall receive from the division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.

            (h) For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section:

            (1) Convictions for a violation of K.S.A. 8-1567, and amendments thereto, or a violation of an ordinance of any city or resolution of any county which prohibits the acts that such section prohibits, or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging any such violations, shall be taken into account, but only convictions or diversions occurring:

            (A) On or after July 1, 2001; and

            (B) when such person was 18 years of age or older.

            Nothing in this provision shall be construed as preventing any court from considering any convictions or diversions occurring during the person’s lifetime in determining the sentence to be imposed within the limits provided for a first, second, third, fourth or subsequent offense;

            (2) any convictions for a violation of the following sections which occurred during a person’s lifetime shall be taken into account, but only convictions occurring when such person was 18 years of age or older:

            (A) This section;

            (B) driving a commercial motor vehicle under the influence, K.S.A. 8-2,144, and amendments thereto;

            (C) operating a vessel under the influence of alcohol or drugs, K.S.A. 32-1131, and amendments thereto;

            (D) involuntary manslaughter while driving under the influence of alcohol or drugs, K.S.A. 21-3442, prior to its repeal, or subsection (a)(3) of K.S.A. 2011 Supp. 21-5405, and amendments thereto;

            (E) aggravated battery as described in subsection (b)(3) of K.S.A. 2012 Supp. 21-5413, and amendments thereto; and

            (F) aggravated vehicular homicide, K.S.A. 21-3405a, prior to its repeal, or vehicular battery, K.S.A. 21-3405b, prior to its repeal, if the crime was committed while committing a violation of K.S.A. 8-1567, and amendments thereto;

            (3) "conviction" includes:

            (A) Entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of a crime described in subsection (h)(2);

            (B) conviction of a violation of an ordinance of a city in this state, a resolution of a county in this state or any law of another state which would constitute a crime described in

subsection (h)(1) or (h)(2); and

            (C) receiving punishment under the uniform code of military justice or Kansas code of military justice for an act which was committed on a military reservation and which would constitute a crime described in subsection (h)(1) or (h)(2) if committed off a military reservation in this state;

            (4) it is irrelevant whether an offense occurred before or after conviction for a previous offense;

            (5) multiple convictions of any crime described in subsection (h)(1) or (h)(2) arising from the same arrest shall only be counted as one conviction;

            (6) the prior conviction that is an element of the crime of refusing to submit to a test to determine the presence of alcohol or drugs shall not be used for the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section and shall not be considered in determining the sentence to be imposed within the limits provided for a first, second, third or subsequent offense; and

            (7) a person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section, or an ordinance which prohibits the acts of this section, only once during the person’s lifetime.

            (i) Upon conviction of a person of a violation of this section or a violation of a city ordinance or county resolution prohibiting the acts prohibited by this section, the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person’s driving privileges as provided by K.S.A. 8-1014, and amendments thereto.

            (j) (1) Nothing contained in this section shall be construed as pre-venting any city from enacting ordinances, or any county from adopting resolutions, declaring acts prohibited or made unlawful by this act as unlawful or prohibited in such city or county and prescribing penalties for violation thereof.

            (2) The minimum penalty prescribed by any such ordinance or resolution shall not be less than the minimum penalty prescribed by this section for the same violation, and the maximum penalty in any such ordinance or resolution shall not exceed the maximum penalty prescribed for the same violation.

            (3) An ordinance may grant to a municipal court jurisdiction over a violation of such ordinance which is concurrent with the jurisdiction of the district court over a violation of this section, notwithstanding that the elements of such ordinance violation are the same as the elements of a violation of this section that would constitute, and be punished as, a felony.

            (4) Any such ordinance or resolution shall authorize the court to order that the convicted person pay restitution to any victim who suffered loss due to the violation for which the person was convicted.

            (k) (1) Upon the filing of a complaint, citation or notice to appear alleging a person has violated a city ordinance prohibiting the acts prohibited by this section, and prior to conviction thereof, a city attorney shall request and shall receive from the:

            (A) Division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state; and

            (B) Kansas bureau of investigation central repository all criminal history record information concerning such person.

            (2) If the elements of such ordinance violation are the same as the elements of a violation of this section that would constitute, and be punished as, a felony, the city attorney shall refer the violation to the appropriate county or district attorney for prosecution.

            (l) No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or a violation of any ordinance of a city or resolution of any county in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this section or by the ordinance. For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not constitute plea bargaining.

            (m) As used in this section, "imprisonment" shall include any restrained environment in which the court and law enforcement agency intend to retain custody and control of a defendant and such environment has been approved by the board of county commissioners or the governing body of a city.

            (n) On and after July 1, 2012, the amount of $250 from each fine imposed pursuant to this section shall be remitted by the clerk of the district court to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall credit the entire amount to the community corrections supervision fund established by K.S.A. 2011 Supp. 75- 52,113, and amendments thereto.

History: L. 2012, ch. 172, § 2; L. 2013, ch. 122, § 5; July 1.