Johnson County, Kansas criminal case law and statutes

The Burden of Proof and the "Reasonable Doubt" Standard - is it Always a Defendant's Best Friend?

The "reasonable doubt" standard was intended to provide Defendants with an advantage in a criminal trial for a number of reasons, including the principle that you cannot often "prove" you innocence to a crime you know nothing about, you can't prove a negative, and in order to restrain the power of govennment.  This standard is not always all it was intended to be.

The young lawyer was right in the middle of final argument when he had one of those awful moments of self-awareness and wondered if he would be able to finish what he was saying. Everything had been going along just fine when all of a sudden he felt the rush of blood to his face and became exquisitely aware that he was standing in front of the jury, talking to them, and that they were listening to what he had to say.

That is when he started listening to his own words. He knew they made sense, but he worried that they might actually be hurting the case instead of helping it.

The young lawyer was right to be concerned. He was representing the defendant in a criminal case, and he was suddenly caught in the Venus flytrap of the law: proof beyond a reasonable doubt. You can look at it, you can circle it, you can describe it, you can crawl all over the outside of it. But once you settle on it and rely on it for your defense—if you are not careful—it can eat you alive.

Wait a minute, you say. Proof beyond a reasonable doubt is a heavy burden that the prosecution has to bear throughout the entire case. It is designed to protect the defendant, to guard against the possibility of the innocent being convicted. How can it be a trap for the defense?

The answer lies in the role of lawyers and the logic of argument.

Whenever you represent a client—whether it is in a civil or a criminal case—you are literally standing up for that person. It is strictly forbidden to say it out loud, but your very presence says, “I have investigated this case. I know the facts and I understand how they relate to the law. You can take my word for it: Justice is on my client’s side.”

Jurors understand the implication of your presence, even if they do not know that it would violate both the law and the code of professional responsibility for you to voice your personal belief in the justice of your client’s cause. Jurors also are suspicious of lawyers; they feel that what we say and do does not represent all that we know about the case.

So, instinctively, they watch us to see what our unconscious conduct reveals. And because of that, it is a terrible mistake to send the signal that you actually think your client is guilty.

How might you do that?

One way is to depend too heavily on the burden of proof. To see how this works, step outside the law for just a minute. Go to a school yard and see if you can take sides in an argument just on the basis of what two young boys are saying to each other. Here are two cases. In each one the dispute is the same. One boy says the other has his baseball glove. The only difference is in how the accused responds.

Case one:

“That’s my baseball glove.”

“No, it’s not. Yours has a broken lace.”

What do you have? A factual dispute. If you can choose between the two just on what they said, you either have an unusual gift or you are prone to jumping to conclusions. You need more than these words just to lean one way or the other in this case, much less take sides.

But consider case two:

“That’s my baseball glove.”

“You can’t prove it.”

If you are as fair-minded as you would like to be, you will want to have more evidence in this case, too. But if you are suspicious of the one who says “You can’t prove it,” that feeling may color your view of the rest of the case. The words are not exactly an admission, but they have a strangely guilty ring.

SEEDS OF DOUBT
Now we are ready to go back to the law. When you tell the jury that there is a “heavy burden protecting the defendant, and he is presumed to be not guilty unless and until he is proven guilty beyond a reasonable doubt,” there is the risk that the jury may translate what you say into a concession that “Maybe the defendant is guilty, but the prosecution hasn’t proved it well enough.”

Like case two involving the baseball glove, talking about the heavy burden can seem almost like an admission. But why?

Proof beyond a reasonable doubt recognizes three different conclusions:

• We are certain he is guilty.

• We are certain he is innocent.

• We do not know whether he is guilty or innocent.

The law makes the middle ground—the ground we do not know—a buffer. It gives the defendant the benefit of the doubt. But telling the jury to give the defendant that benefit of the doubt implies that he needs its protection—and suggests he might well be guilty. So if the jury is listening carefully to see if you will give some sign of what you secretly know, the argument that the case is not proven may sound like you are admitting the possibility of guilt and hiding behind the technicality.

Does that mean you should not argue reasonable doubt when you are for the defense?

Hardly. But it does suggest that if you have facts of your own to prove, emphasizing them may be more effective than being too defensive. It also suggests that you ought to be careful in how you present your argument on reasonable doubt.

ROOTING FOR THE MOUSE
There are lots of ways to talk about the burden of proof without admitting the possibility of guilt, but you have to think them through before you use them. You cannot simply tell the jury not to take your argument the wrong way. Here is an argument worth thinking about. It was used by the late Peter M. de Manio of Sarasota, Fla., in a demonstration at the National Institute for Trial Advocacy. Remember that de Manio was arguing for the defense, because his introduction may surprise you.

“Is it possible for the government to prove guilt beyond a reasonable doubt just on circumstantial evidence, without any eyewitness testimony?” said de Manio.

“Of course. Take a simple example. Suppose that you take a mouse and put him in a box. Now take a cat and put him in the box with the mouse. Then take the lid and cover the box. Now tie up the box with string so the lid can’t come off.

“Leave the room for half an hour. When you come back, untie the string, take off the lid and look inside. There is no mouse, but there is one happy cat.

“Do you know what happened? You weren’t there, there are no eyewitnesses. All you have is circumstantial evidence. But you know beyond any reasonable doubt what happened to that mouse.

“Let’s do it again. Put the mouse in the box. Put the cat in the box with the mouse. Put on the lid. Tie it down. Leave the room for half an hour. Come back into the room. Untie the string. Take off the lid and look inside.

“There is the cat. No mouse.

“But look—back there in the corner of the box. There is a hole, just big enough for a mouse.

“That hole is a reasonable doubt. Now let’s look at the holes in the prosecution’s case.”

Then by implication, every problem in the government’s case is not just a hole; it is a reasonable doubt.

Another nice thing about this argument is the way it draws on our subliminal values. From the first Mickey Mouse production to the Mighty Mouse cartoons at the neighborhood theater to the Tom and Jerry reruns on Saturday morning television, we have been rooting for the mouse—which is just what Peter de Manio’s argument wants us to do.

Thanks to the ABA for the story!

Kansas legislative changes involving criminal law effective July 1, 2011

Prepared for the Kansas Association of Criminal Defense Lawyers by:

Jennifer Roth (rothjennifer@yahoo.com), KACDL Legislative Committee chair

This chart is a summary only. Please see www.kslegislature.org for full text of enrolled bills. I have tried to cover all changes but it is almost certain I have missed something. Please send any corrections/additions to me at rothjennifer@yahoo.com.

(Note: I started out by filling in the statute # affected column but stopped when I realized many of the references in the bills were to recodification, indicated by session law chapter, etc. and all of those references will become statute numbers. Essentially, I gave up. L)

June 16, 2011

Summary of changes made by House Sub for SB 37 (taken from Hawvers Wrap-Up Report, a service of Hawvers Capitol Report, which KACDL subscribes to):

House Sub. for SB 37 makes several changes to the Kansas Offender Registration Act (the Act) to bring Kansas into compliance with the federal Adam Walsh Sex Offender Registration and Notification Act (SORNA). First, the bill amends KSA 22-4902(a) by limiting the definition of offender to sex offenders, violent offenders, and drug offenders, all of which are defined in the bill, in addition to persons required to register in other states or by a Kansas court for a crime that is not otherwise an offense requiring registration. The definitions of sex offenders, violent offenders, and drug offenders incorporate the crimes removed from the current definition of

offender. The bill also defines other key terms.

In KSA 22-4903, a first conviction of failure to comply with the provisions of the Act becomes a severity level 5, person felony, (formerly a level 6, person felony); a second conviction remains a level 5, person felony; and a third or subsequent conviction becomes a level 3, person felony.

Additionally, failure to comply with the Act for more than 180 consecutive days is considered an aggravated violation, a level 3, person felony.

KSA 22-4904 consolidates the duties of several entities into a single statute and incorporates those things SORNA requires of each. Each entitys responsibilities are outlined in its own subsection as follows:

(a) Courts (at the time of sentencing or disposition for an offense requiring

registration);

(b) Staff of a correctional facility;

(c) Staff of a treatment facility;

(d) Registering law enforcement agencies;

(e) Kansas Bureau of Investigation (KBI);

(f) Attorney General;

(g) Kansas Department of Education;

(h) Secretary of Health and Environment; and

(I) The clerk of any court of record.

KSA 22-4905 outlines offender registration requirements. An offender must register in person with the registering law enforcement agency within three business days of coming into any county or location of jurisdiction in which the offender resides or intends to reside, maintains employment or intends to maintain employment, or attends school or intends to attend school.

Exceptions exist for anyone physically unable of registering in person at the discretion of the registering law enforcement agency.

Further, sex offenders must report in person four times a year to the registering law enforcement agency in the county or location of jurisdiction in which the offender resides, maintains employment, or is attending school. Violent offenders and drug offenders, at the discretion of the registering law enforcement agency, are required to report in person three times each year

and by certified letter one time each year. If incapacitated, the registering law enforcement agency may allow violent offenders and drug offenders to report by certified letter four times a

Summary of House Sub. for SB 37, page 2

year. An offender must register during the month of the offenders birth, and every third, sixth, and ninth month occurring before and after the offenders birthday. Each time, the offender

must pay a $20 fee, with some exceptions. Offenders also must register in person within three business days of commencement, change, or termination of residence, employment status,

school attendance, or other information required on the registration form with the registering law enforcement agency where last registered and provide written notice to the KBI. Similarly, an offender must register within three business days of any name change. Finally, the offender must submit to the taking of an updated photograph when registering or to document any changes in identifying characteristics; renew any drivers license or identification card annually; surrender any drivers licenses or identification cards from other jurisdictions when Kansas is the offenders primary residence (an exception exists for active duty members of the military and

their immediate family); and read and sign registration forms indicating whether the requirements of this section have been explained.

The bill provides special conditions for registration in certain circumstances. If in the custody of a correctional facility or in the care or custody of a treatment facility, the bill requires offenders to register with that facility within three business days of arrival, but does not require them to update their registration until they are allowed to leave. If receiving inpatient treatment at any treatment facility, the offender must inform the registering law enforcement agency of the offenders presence at the facility and the expected duration of the treatment. If an offender is transient, the bill requires the offender to report in person to the registering law enforcement

agency of the county or location of jurisdiction within three business days of arrival, and every 30 days thereafter, or more often at the discretion of the registering law enforcement agency. If traveling outside the U.S., the offender must notify the registering law enforcement agency and the KBI 21 days prior to travel, and within three days of making travel arrangements.

Offenders are required to register for 15 or 25 years, or for life, depending on the offense as outlined in KSA 22-4906. Those crimes requiring registration for 15 years are capital murder; murder in the first degree; murder in the second degree; voluntary manslaughter; involuntary

manslaughter; criminal restraint when the victim is less than 18; a sexually motivated crime; a person felony where a deadly weapon was used; manufacture or attempted manufacture of a controlled substance; possession of certain drug precursors; when one of the parties is less than

18, sexual battery, adultery, patronizing a prostitute, or lewd and lascivious behavior; or attempt, conspiracy, or criminal solicitation of any of these crimes.

Those crimes requiring registration for 25 years are criminal sodomy when one of the parties is less than 18; indecent solicitation of a child; electronic solicitation; aggravated incest; indecent liberties with a child; unlawful sexual relations; sexual exploitation of a child; aggravated sexual battery; promoting prostitution; or any attempt, conspiracy, or criminal solicitation of

any of these crimes.

Those crimes requiring registration for life are second or subsequent convictions of an offense requiring registration; rape; aggravated indecent solicitation of a child; aggravated indecent

Summary of House Sub. for SB 37, page 3

liberties with a child; criminal sodomy; aggravated criminal sodomy; aggravated human trafficking; sexual exploitation of a child; promoting prostitution; kidnapping; aggravated

kidnapping; or any attempt, conspiracy, or criminal solicitation of any of these crimes. Additionally, any person declared a sexually violent predator is required to register for life.

Offenders 14 years of age or older who are adjudicated as a juvenile offender for an act that would be considered a sexually violent crime when committed by an adult, and that is a severity

level 1 non-drug felony or an off-grid felony, also must register for life. For offenders 14 years of age or older who are adjudicated as a juvenile offender for an act that would be considered a sexually violent crime when committed by an adult and that is not a severity level 1 non-drug felony or an off-grid felony, a court may:

Require registration until the offender reaches 18, 5 years after adjudication

or, if confined, 5 years after released from confinement, whichever occurs

later;

Not require registration if it finds on the record substantial and compelling

reasons therefor; or

Require registration, but with the information not open to the public or

posted on the internet (the offender would be required to provide a copy of

such an order to the registering law enforcement agency at the time of

registration, which in turn, would forward the order to the KBI).

KSA 22-4907, concerning the form used for registration, is amended to require KBI approval of the form, rather than preparation; information in addition to that already required; and that the signature of the offender be witnessed by the registering officer. The bill also amends the provisions in this section governing the mandatory collection of DNA samples.

In KSA 22-4909, concerning the availability of statements and other information collected pursuant to the Act, the bill clarifies what information is required to be posted on a website sponsored or created by a registering law enforcement agency or the KBI.

Finally, the bill amends KSA 38-2312, which governs the expungement of juvenile records, and 2010 Session Laws ch. 136, sec. 254, which governs expungement of adult records, to provide that an offender required to register pursuant to the Act cannot expunge any conviction or part of the offenders criminal record while the offender is required to register.

Effective July 1, 2011.

New Kansas Driving Under the Influence laws (DUI/DWI/drunk driving) to be effective July 1, 2011

Learn more about the changes that are coming to Kansas' criminal DUI statute - KSA 8-1567 and associated driver's license suspension statutes

Criminal penalty changes in the new Kansas DUI bill:

1. All fines will increase by at least $250. This means that a 1st driving under the influence conviction in Johnson County or elsewhere in Kansas will result in a $750 minimum fine; a 2nd conviction will result in a $1250 minimum fine; a 3rd conviction will result in a $1750 fine; a 4th or higher conviction will result in a $2750 fine.

2. Minimum jail sentences for Kansas DUI convictions will also be enhanced. A 1st DUI conviction will carry a 48 hour minimum jail sentence before probation may be granted. Drivers facing a first time conviction may avoid jail if they are eligible for the CWIPS class which our Overland Park DUI lawyers have arranged for a number of our clients. A 2nd drunk driving conviction in Shawnee or elsewhere in Kansas will result in a minimum 90 day jail sentence with 5 days of custody required before probation is granted. The 5 days can be served with house arrest after 48 hours in jail. It is unclear whether CWIPS will suffice to satisfy the 48 hour requirement. A 3rd conviction in Johnson County, Kansas requires 90 days in custody before probation may be granted. The 90 days may be partially served in a work release program or house arrest program. Johnson County work release and Johnson County house arrest are both good options for folks arrested for a 3rd lifetime DUI in Olathe, Overland Park, Leawood, or elsewhere. A 4th conviction in Kansas will carry even stiffer penalties.

3. If there is a passenger in the car under 14 years old, the jail sentence will be enhanced by one month, to be served consecutive (in addition to) the underlying jail sentence. It is unclear how this additional 30 days will be treated by the Courts which could allow house arrest, work release, or some other form short of actual jail time.

4. Good news: Kansas law regarding "prior convictions" will change for the benefit of drivers charged with DUI. The old law counted all convictions in a person's lifetime while the new law counts only those convictions after 2001. This means that many DUI charges were previously classified as felonies will no longer be subject to felony convictions in Johnson County District Court.

New Kansas DUI laws being proposed and debated in the Kansas Legislature

Kansas driving under the influence laws would change is SB7 is passed, creating stronger penalties for drunk driving in Kansas

Kansas DUI Commission

Final Report

The Commission concludes and recommends the following which does not require Legislative change or is not included in the proposed bill (1rs0028WPForm, See Minutes):
The Commission agreed to recommend the Kansas Criminal Justice Information System (KCJIS) be the DUI central repository and that it should be funded appropriately. The Commission also agreed to recommend the reporting of information and auditing of compliance be placed in a separate piece of legislation.
The Commission recognized the importance of complete and timely data relating to DUI arrests, charging, and dispositions. Appropriate charging is dependent upon the most current and up-to-date information to determine prior and pending DUI cases. Success of the DUI central repository in serving this function requires the state and local law enforcement agencies, prosecutors, and courts to report all DUI arrest, charging, and disposition data to the central repository. To assure accurate and timely reporting, the Commission recommends the KBI and KCJIS utilize their rule and regulation authority to audit and enforce reporting requirements of all arrest and disposition information required by statute to be submitted to the criminal central repository at the KBI.
The Commission also recommends a standard document summarizing all DUI arrests, convictions, and dispositions be available through the KBI/KCJIS system. This record should be subject to an evidentiary rule that would allow its admission into Court without the Custodian of the Record being required to attend every hearing unless a defendant challenges the record for accuracy. This system also should allow a user of the KCJIS system, such as prosecutors, to subscribe to and be notified of updated information on defendants they have charged with DUI. This will assure the appropriate charge is presented throughout the judicial process.
The Commission discussed its recommendation regarding the jurisdiction of municipal courts. The Commission concluded that municipal courts that wish to have jurisdiction over DUI cases must meet the standards set in the bill. The Commission requests the Supreme Court encourage compliance with the standards required in the bill. The standards would utilize a standardized risk assessment and evaluation, require compliance with the recommendations of the risk assessment and evaluation, ensure the offender is appropriately supervised based upon the risk of reoffense, and have the ability to report the data electronically to the central repository. The Commission further clarified that municipal courts wanting jurisdiction over first and second-time DUI cases must be approved by the Supreme Court and that municipalities not meeting the criteria will not be authorized to have an ordinance relating to DUI and would be required to refer DUI cases to the district court.
Kansas Legislative Research Department 1-4 2010 Kansas DUI
The Commission agreed to require:
All providers of DUI evaluation and alcohol and drug information schools be licensed in DUI services by Social and Rehabilitation Services-Addiction and Prevention Services;
Licensed DUI specialty providers comprise the DUI evaluation and education network available to all judicial districts and municipal courts;
All DUI substance-use evaluations be completed in a standardized electronic format;
SRS DUI specialty licensing standards be revised to reflect best practices;
Educational and treatment interventions should match the individual offenders clinical profile;
Elimination of the reference to offender monitoring from existing statutes; and
DUI specialty providers to implement best practices.
The Commission concluded with a recommendation of training of prosecutors, defense counsel, judges, or whoever wants or needs to be trained on the changes recommended by this Commission and adopted by the Legislature. To that end, grants may be available and Pete Bodyk, Kansas Department of Transportation offered assistance obtaining funding for such training.
The Commission concludes and recommends the following additions or changes to DUI statutes be made (1rs0028WPForm):
(New Section 1) There should be no automatic professional license, registration, or certificate consequence, such as suspension, restriction, denial, termination, or failure to renew, solely because of a first DUI conviction or diversion. Commercial drivers are not included in this protection. Additionally, hearings would be conducted in accordance with the Kansas Administrative Procedure Act.
(New Section 2) The crime of refusing to submit to a test to determine the presence of alcohol or drugs should be created and the penalties for a conviction should be greater than a conviction for a DUI to incentivize an individual to take the test. The major provisions provide:
A first conviction for DUI would be a class A, nonperson misdemeanor with a sentence of not less than 90 days nor more than one year and fined not less than $1,000 nor more than $1,500.
A second conviction would be a class A, nonperson misdemeanor with a sentence of not less than 90 days nor more than one year and a $2,500 fine.
A third or subsequent conviction for DUI would be a level 7, nonperson felony.
Kansas Legislative Research Department 1-5 2010 Kansas DUI
The court would be required to order the offender to participate in an alcohol and drug evaluation and to follow any recommendation made by a licensed provider with a DUI specialty, unless otherwise ordered by the court.
A lifetime lookback provision on diversions also would be created so that no diversion would be authorized if the person has any prior conviction for an offense listed in the subsection defining a conviction.
(New Section 3) A mechanism for early release from prison should be created if persons convicted of felony DUI, commercial DUI, or test refusal complete treatment programs and other items specified by the Secretary of Corrections.
(New Section 4) Create a new statute that would provide KBI authority to approve preliminary screening devices for testing saliva for law enforcement purposes.
(Section 5) Amend KSA 8-235 to add suspension of driving privileges for commercial DUI and test refusal to the list of supensions that restrict a persons ability to drive a motorized bicycle on a highway.
(Section 6) Amend KSA 8-241, regarding when a drivers license examination must be taken, to include a conviction for test refusal. The requirement already exists for a person convicted of DUI.
(Section 7) Amend KSA 8-262, driving with a suspended, canceled, or revoked drivers license to add commercial DUI or test refusal to the list of convictions that makes the person ineligible for suspension of sentence, probation, or parole until the person has served at least 90 days imprisonment. The requirement already exists for a person convicted of DUI.
(Section 8) Amend KSA 8-285 to include test refusal as one of the crimes that will qualify a person to be an habitual violator if convicted of three or more of the specified crimes within a five-year period. The conviction for a DUI is already included in the list of crimes that will qualify a person to be an habitual violator.
(Section 9) Amend KSA 8-2,142 to include the new crime of test refusal, while operating a noncommercial motor vehicle, to the list of crimes disqualifying a person from driving a commercial vehicle.
(Section 10) Amend KSA 8-2,144, commercial motor vehicle DUI to incorporate the provisions of DUI (8-1567), such as record checks, and make the penalties match the DUI penalties. Additionally, make the crime subject to the special sentencing rules recommended by the Commission on DUI (7-G for 3rd conviction, no durational or dispositional departure) (See Section 21 below).
(Section 11) Amend KSA 8-1001, implied consent to submit to a DUI test if a person drives a motor vehicle on public streets, to require notice pursuant to subsection (k)(4) that test refusal is a separate crime which carries criminal penalties equal to or greater than the criminal penalties for the crime of driving under the influence. The persons test refusal would be
Kansas Legislative Research Department 1-6 2010 Kansas DUI
admissible evidence against the person at any trial on the charge of test refusal. Test refusal will cause the persons driving privileges to be suspended for one year for the first, second, third, or fourth occurrence and permanently revoked for a fifth or subsequent occurrence. The statute also would be amended to clarify the persons authorized to supervise the collection of the urine sample, as allowed by this statute, to include a person licensed to practice medicine or surgery, licensed as a physicians assistant, or a person acting under the direction of any such licensed person; a registered nurse or a licensed practical nurse; or a law enforcement officer of the same sex as the person being tested.
(Section 12) Amend KSA 8-1008 to require, prior to sentencing, an alcohol and drug evaluation, by a licensed provider with a DUI specialty, of offenders convicted of or eligible for a diversion for test refusal or commercial DUI. DUI currently is provided for in this statute. An evaluation would not be required for any offender who actually will serve a prison sentence. The bill would provide that the evaluation would be required to meet the standards of assessment set by the Secretary of Social and Rehabilitation Services and be accepted in any jurisdiction, and that a copy be provided to the defense attorney. DUI evaluation and alcohol and drug information fees be paid directly to DUI specialty providers at the time of service.
(Section 13) Amend KSA 8-1012 to add a provision for a preliminary screening test of a persons breath, saliva, or both using a device approved by KBI.
(Section 14) Amend KSA 8-1013 to redefine alcohol or drug-related conviction to be consistent with the definitions found in the test refusal, commercial DUI, and DUI sections of the draft bill. An alcohol or drug-related conviction is a conviction, diversion, or conviction from another jurisdiction of an offense listed in the bill. The bill draft adds a definition for Department to reflect the new Kansas Department of Health and Environment responsibilities regarding certification or approval of ignition interlock devices.
(Section 15) Amend KSA 8-1014, administrative penalties for test refusal, test failure, or conviction, to add clarifying language to subsection (h) so that any period of drivers license suspension or restriction is stayed during incarceration with the Kansas Department of Corrections, with credit given for any time served on license suspension or restriction prior to incarceration. The penalties for test refusal, test failure, or alcohol or drug-related conviction require a suspension period, with a period of restricted driving privileges that include ignition interlock. The penalties are listed in the table on page 33 of this report.
(Section 16) Amend KSA 8-1015, details on driving privilege suspension and revocation, to provide that after 45 days of the one year suspension provided for in KSA 8-1014 (Section 15, above), a person may apply to the division for the persons driving privilege to be restricted for the remainder of the one year suspension period to driving a vehicle with an ignition interlock device and only for the purpose of getting to and from: work, school or an alcohol treatment program, and the ignition interlock provider for maintenance or downloading of data from the device. The Commission recommends authorizing a restriction, on a first conviction only, to drive to and from work and during the course of employment. The application would be granted unless the driver is otherwise ineligible. The person would be required to carry a copy of the order imposing such restrictions any time the person is driving in Kansas and
Kansas Legislative Research Department 1-7 2010 Kansas DUI
the person would be subject to an additional year of suspension if convicted of violating the restriction.
(Section 17) Amend KSA 8-1016, rules and regulations on ignition interlock devices by removing the responsibility of developing rules and regulations, on or before July 1, 2012, regarding the approval of ignition interlock devices and manufacturer requirements from the Kansas Department of Revenue, Division of Vehicles, and placing it instead with the Kansas Department of Health and Environment. The responsibility of developing rules and regulations regarding maintenance and reporting requirements on the ignition interlock device would be retained by the Division of Vehicles. Also included in this section is a provision providing that the current rules and regulations would remain in effect until the Secretary of Health and Environment adopts rules and regulations. Finally, the Commission recommends the inclusion of a provision that would require all persons to be informed of the credit provided by each manufacturer of the ignition interlock device so no determination of indigence is needed until an application is made to receive financial assistance.
(Section 18) Amend KSA 8-1017, which provides for the crime of circumvention of an ignition interlock device and the penalties for such a violation. The Commission agreed to add operating a vehicle not equipped with an ignition interlock device during the restricted period as a violation that would be penalized as follows:
On a first conviction, the Division would be required to extend the ignition interlock period on the persons driving privileges for an additional 90 days; and
On a second or subsequent conviction, the Division would be required to restart the original ignition interlock restriction period on the persons driving privileges.
The Commission restored the stricken language in subsection (c), which required the Division to suspend, or restrict with authority to drive to and from work or during the course of employment, the persons driving privileges for a period of two years, for a person convicted of blowing into or starting a motor vehicle equipped with an ignition interlock device.
(Section 19) Amend KSA 8-1020 to create a flat fee of $50 for all administrative hearings on drivers license suspension, with no differentiation for in-person or telephone hearings. The funds would be credited to the Division of Vehicles operating fund.
(Section 20) Amend KSA 8-1501 to add the newly created crime of test refusal to the list of crimes that apply upon highways and elsewhere throughout the state.
(Section 21) Amend KSA 8-1567, driving under the influence. The bill would:
Amend the time to measure the person blood or breath from two hours to three hours from the time of operating or attempting to operate a vehicle;
Amend a first conviction from a class B, nonperson misdemeanor to a class A, non-person misdemeanor. The penalty would be changed from nor more than six months imprisonment and nor more than $1000 to nor more than twelve months imprisonment and nor more than $2500 to make it consistent with a class A misdemeanor. Likewise, on a second
Kansas Legislative Research Department 1-8 2010 Kansas DUI
conviction for DUI, the penalty would be changed from nor more than $1500 to nor more than $2500;
Make impoundment or immobilization discretionary with the court;
Add a provision that any DUI referred to a county or district attorney from a city attorney shall not be referred back to the municipality; and
Modify the penalties as shown in the chart titled DUI Sentencing As Proposed by the DUI Commission appearing at the end of this report on page 37.
(Section 22) Amend KSA 12-4104, dealing with municipal court jurisdiction, by removing the municipal courts concurrent jurisdiction for felony DUIs.
(Section 23) Amend KSA 12-4106, municipal judge powers and duties. Specifically, in all cases alleging a violation of a city ordinance prohibiting commercial DUI, DUI, or test refusal, the municipal judge would be required to ensure: utilization of a standardized risk assessment instrument approved by the Kansas Sentencing Commission; utilization of a standardized substance abuse evaluation approved by the Secretary of Social and Rehabilitation Services; utilization of the results of such assessment and such evaluation to determine the disposition of the case; capability to supervise the offender accordingly; and reporting of the disposition of the case to the KBI. Additionally, the municipal judge would be required to ensure electronic reporting of the disposition of such case to the KBI on and after July 1, 2012.
(Section 24) Amend KSA 12-4516 regarding expungement of a municipal violation of DUI. In contrast with current law, which allows expungement for certain crimes after three or more years after satisfaction of the sentence imposed or discharged from supervision, in the bill draft, this provision would allow expungement after ten years for a municipal violation of a DUI ordinance.
(Section 25) Amend KSA 22-2802, release prior to trial, to provide for certain bond conditions for release prior to trial that may be imposed at the courts discretion for persons charged with the crime of commercial DUI, DUI, or the newly created crime of test refusal. The bond conditions include a prohibition on operating or attempting to operate a motor vehicle without a valid drivers license and insurance, or proof of installation of an ignition interlock device.
(Section 26) Amend KSA 22-3610 to provide, on an appeal from a municipal court conviction to the district court, the complaint may be amended to reflect the proper number of prior convictions.
(Section 27) Amend KSA 22-3717 to add a requirement of 24 months postrelease for convictions of felony commercial DUI, DUI, or test refusal. Additionally, the bill would provide review by the Kansas Parole Board for early release of offenders who are convicted of felony commercial DUI, DUI, or test refusal and who complete the treatment programs and other items specified by the Secretary of Corrections.
Kansas Legislative Research Department 1-9 2010 Kansas DUI
(Section 28) Amend Sec. 14 of 2010 SL ch 136, the culpability standard of strict liability, to add the new crime of test refusal and commercial DUI to the list of strict liability crimes.
(Section 29) Amend Sec. 48 of 2010 SL ch. 136, to create a new crime of aggravated battery while DUI.
(Section 30) Amend Sec. 254 of 2010 SL ch. 136 to provide for an expungement of a conviction or diversion for a DUI in district court after ten years.
(Section 31) Amend Sec. 285 of 2010 SL ch. 136 to allow the sentencing court in a felony DUI case to retain jurisdiction to modify the sentence imposed. Additionally, the bill draft provides for the creation of special sentencing rules that would put felony DUIs, commercial DUIs, and test refusals on the Kansas Sentencing Guidelines nondrug grid. For a felony commercial DUI or test refusal, the bill would classify:
A 3rd conviction as a 7-G;
A 4th conviction as a 7-F;
A 5th conviction as a 7-E;
A 6th conviction as a 7-D;
A 7th conviction as a 7-C;
An 8th conviction as a 7-B; and
A 9th or subsequent conviction as a 7-A.
For felony DUI, it would classify:
A 4th conviction as a 7-G;
A 5th conviction as a 7-F;
A 6th conviction as a 7-E;
A 7th conviction as a 7-D;
An 8th conviction as a 7-C;
A 9th conviction as a 7-B; and
A 10th or subsequent conviction as a 7-A.
(Section 32) Amend Sec. 292 of 2010 SL ch. 136 to provide for the determination of an offenders criminal history classification when the current crime of conviction is committed after the effective date of the bill, presumably, July 1, 2011. The provision would preserve the rule that a conviction of a specified crime will count as one person felony for criminal history purposes.
(Section 33) Amend Sec. 292 of 2010 SL ch. 136 to prohibit a sentencing judge from imposing a downward dispositional or durational departure sentence for a felony commercial DUI, DUI, or test refusal.
Proposed Legislation: A Senate bill encompassing all recommendations of the Commission that require legislation.

In accordance with KSA 75-3715a, the following fiscal note concerning SB 7 is respectfully submitted to your committee.

SB 7 would make numerous changes to current driving under the influence (DUI) law specifically as it relates to DUI, commercial DUI, and the new crime of refusing to submit to a DUI test. The bill would amend DUI law by changing the time available to measure a persons blood or breath from two hours to three hours from the time of operating a vehicle. The bill would also amend a first DUI conviction from a class B, nonperson misdemeanor to a class A, nonperson misdemeanor; raise the maximum sentence from no more than six months to no more than 12; and raise the maximum fine from $1,000 to $2,500. The maximum fine for a second DUI conviction would be raised from $1,500 to $2,500. A third DUI conviction would be separated into two classifications: a class A, nonperson misdemeanor if the offender does not have a prior conviction within the previous ten years; and a nonperson felony if the offender has a prior conviction within the previous ten years. A fourth or subsequent DUI conviction would now be classified as a severity level 7, nonperson felony. The bill would require that when determining whether a conviction is a first, second, third, fourth, or subsequent conviction, only DUI convictions or diversions occurring on or after July 1, 1996 may be taken into account. Courts may also consider any commercial DUI or test refusal convictions that occur during an offenders lifetime. The bill would make several amendments to diversion requirements and considerations.

SB 7 would also amend commercial DUI laws. The time available to measure a persons blood or breath would be increased from two hours to three hours from the time of operating a vehicle. Penalties for first commercial DUI convictions would be raised from class B, nonperson misdemeanors to class A, nonperson misdemeanors, and the maximum sentence would be increased from six months to one year. The maximum fine for a first commercial DUI conviction would increase to $1,500. The maximum fine for a second conviction would be increased to $2,500. A third or subsequent conviction would be a severity level 7, nonperson felony.

The bill creates the new crime of refusing to submit to a test to determine the presence of alcohol or drugs. First or second convictions of the new crime would be class A misdemeanors with maximum sentences of one year and maximum fines of $1,500 and $2,500, respectively. A third or subsequent conviction of test refusal would be a severity level 7, nonperson felony.

Cities would not be permitted to enact DUI, commercial DUI, or test refusal ordinances unless municipal law enforcement agencies report arrests to KBI as required by law and municipal courts use the standardized risk assessment instrument (the Level of Services Inventory-Revised or LSI-R) approved by the Kansas Sentencing Commission and the standardized substance abuse evaluation approved by the Department of Social and Rehabilitation Services (SRS). Municipal courts must be able to use the assessments and evaluations for case dispositions, have the ability to supervise offenders accordingly, and report case dispositions to the KBI. By July 1, 2012 all municipal courts must be able to submit case dispositions electronically to the KBI. Prosecutors of DUI offenders and courts must request and receive from the Division of Vehicles an offenders record of all prior convictions for violations of Kansas motor vehicle laws and a criminal history from the KBI central repository. All felony DUI cases must be filed in district courts instead of municipal courts.

SB 7 would mandate that alcohol and drug evaluations be conducted by providers who have a DUI specialty license approved by the Department of Social and Rehabilitation Services (SRS). All assessment and reporting standards would be determined by the Department. The cost of the evaluation, which must not exceed $150, would be paid by the offender to the provider at the time of service.

The bill would also amend the application and duration of suspending a DUI offenders driving privileges and restricting the offenders driving privileges to driving ignition interlock device equipped vehicles in cases where an offender has refused or failed a test. If requested by an offender who was convicted prior to the amendment, the suspension and restriction of driving privileges provisions could be applied retroactively provided that the offender submit an application and fee of $59, which would be credited to the Department of Revenue Division of Motor Vehicles Operating Fund. If an offender is sentenced to a state correctional facility, any period of incarceration would not count towards the offenders suspension or restriction period. All requirements of suspensions and restrictions involving ignition interlock devices, which must be approved by the Department of Health and Environment, would be administered by the Department of Revenue Division of Motor Vehicles. Any evidence of tampering with the device would extend the ignition interlock restriction period. Offenders who have had their licenses suspended would be permitted to request administrative hearings, which would be subject to a $50 fee for administrative costs incurred by the Division of Motor Vehicles.

The Kansas Parole Board may release inmates who have been convicted of DUI, commercial DUI, and refusing to submit to a test provided that they have completed required treatment programs as determined by the Secretary of Corrections.

The new crime of aggravated battery while driving under the influence would be created under SB 7. The new crime would be classified as a severity level 5, person felony for cases in which the offender has causes great bodily harm to a victim and a severity level 7, person felony for cases in which the offender causes bodily harm to a victim.

The bill would permit expungement of convictions or diversions for a DUI in district court when ten or more years have elapsed since the sentence or terms of the diversion agreement were satisfied. The expungement may still be considered as a prior conviction when determining the sentence for a conviction for any subsequent crime. Also, special sentencing rules would be amended by making convictions for felony DUI, commercial DUI, and test refusal presumptive imprisonment. District courts would be prohibited from imposing downward dispositional or downward durational departure sentences.

For the purposes of presenting the fiscal effect for SB 7, costs have been divided into two areas: prison bed costs, which would be indeterminate because of various potential outcomes; and all other costs, which are summarized with specific figures in the table below.

Prison Bed Costs
Under three different scenarios, the Kansas Sentencing Commission estimates that passage of SB 7 would result in an increase of 775, 1,019, and 1,257 adult prison beds in FY 2012 and an increase of 1,456, 1,803, and 2,210 adult prison beds by FY 2021. Each scenario assumes 25.0, 50.0 and 75.0 percent, respectively, of offenders who violate the amended DUI laws would serve their entire prison terms. Currently, the number of male inmates exceeds the available bed capacity of 8,259, and based upon the Kansas Sentencing Commission projections, it is estimated that at the end of FY 2011 and FY 2012, the number of male inmates will exceed available capacity by 235 beds and 394 beds, respectively. To address capacity issues, the Governors recommended FY 2012 budget includes $2.5 million for contract prison beds. If it is determined that facility construction is necessary, the Department of Corrections has identified two capacity expansion projects: two high medium security housing units at El Dorado Correctional Facility that would provide 512 beds with a construction cost of $22,687,232 ($44,311 per bed X 512) and operating costs of $9,339,904 ($18,242 per bed X 512); and one minimum security housing unit at Ellsworth Correctional Facility that would provide 100 beds with a construction cost of $5,935,000 ($59,350 per bed X 100) and operating costs of $1,832,000 ($18,320 per bed X 100).

Any capacity needed beyond the options outlined above could require additional contract or construction costs. The actual construction costs would depend upon the security level of the beds to be constructed and when construction is actually undertaken, while the actual operating costs would depend upon the base salary amounts, fringe benefit rates, per meal costs, per capita health care costs, and other cost factors applicable at the time the additional capacity is occupied.

The Department of Corrections estimates that enactment of SB 7 would require additional State General Fund resources of totaling $3,056,463 and 50.00 FTE positions for FY 2012. The largest source of these expenses would be from adding 46.00 parole officer FTE positions with salary and wages costs of $2,192,000 and $270,000 for 15 vehicles. The officers would be needed to perform the required post-release supervision of additional offenders. Of the remaining sum, $182,597 would be for 4.00 FTE positions to process higher volumes of journal entries, parole forms, and DUI sentence computations; and $411,865 would be for programming and ongoing operating costs.

According to the Office of Judicial Administration, courts would require a total of $3,882,872 from the State General Fund and 68.40 FTE positions for additional costs related to the workloads required under SB 7. It is projected that the bill would add at least 4,832 new cases to district courts including 3,337 cases from an estimate that assumes only cities of the first class would be able to adhere to the new reporting, evaluation, and assessment requirements and choose to continue to prosecute DUI cases; 818 cases that are estimated to be heard as a result of the bills provision requiring all felony DUI cases to be filed in district courts; and 677 cases from the new crimes created by the bill. The Office also estimates approximately 5,000 petitions for expungement would be filed. The cost breakdown by position class would be $517,105 for 14.90 trial clerk FTE positions (14.90 positions X $34,705 cost per position); $994,458 for 6.00 judge FTE positions (6.00 positions X $165,743 cost per position); $342,606 for 6.00 court reporter FTE positions (6.00 positions X $57,101 per position); $244,650 for 6.00 administrative assistant FTE positions (6.00 positions X 40,775 per position); and $1,784,053 for 35.50 court services officer FTE positions (35.50 X $50,255 per position).

The Board of Indigents Defense Services estimates that the agency would require $1,206,450 in additional State General Fund dollars for FY 2012 to implement SB 7. The Board projects that the agency would assume 2,193 additional cases. With an average per public defender caseload of 166 cases, the Board estimates that $877,500 would be needed to hire 13.50 attorney FTE positions (13.50 positions X $65,000 cost per position). Because the bill requires that a drug and alcohol evaluation be conducted in every case, the Board also estimates that $328,950 would be needed for the tests (2,193 cases X $150 per evaluation)

KBI expects that SB 7 would require an expansion of the central repository and the creation of several automated data exchanges between KBI and prosecutors, courts, and the Division of Vehicles. To enhance the capabilities of the central repository, KBI estimates that it would need $2,875,000 from the State General Fund in FY 2012 for one-time IT costs. Included in this figure is $175,000 to develop detailed system requirements and designs; $300,000 to develop a DUI portal; $325,000 to build the required interfaces; $650,000 to expand the central repository; $375,000 to develop notification and management functions; $375,000 to link to document imaging systems; $450,000 for project management, testing, documentation, and training; and $225,000 for hardware and software.

County jails could see savings from the provision in the bill that requires incarceration in a state correctional facility of offenders who have been convicted of fourth or subsequent DUI violations. Under current law, offenders convicted of DUI can remain in the county system unless ordered to a state correctional facility for treatment programs. Upon completion of the program, offenders are eligible to be returned to counties. However, any savings realized from the amended provision would be offset by additional costs from offenders who are committed to county jails for the new crimes created under the bill. Because it is difficult to estimate the net effect of offenders for county jails, the Kansas Association of Counties is unable to estimate the precise savings or costs from SB 7. Some municipalities could see court cost reductions due to decreases in DUI caseloads from the requirement that felony DUI cases be filed in district courts. Municipalities could experience further caseload cost reductions by forgoing DUI case prosecutions because of an inability to meet the KBI reporting requirements; to utilize the standardized risk assessment instrument and the standardized substance abuse evaluation; and to properly supervise offenders. While these costs may be eliminated, any revenue from filing fees and fines would also be eliminated. The League of Kansas Municipalities is unable to determine the precise fiscal effect for cities because it is unknown how many cities would be able to meet the requirements of the bill.

The Department of Social and Rehabilitation Services (SRS) believes that the agency would incur additional costs totaling $366,991 in FY 2012 from the State General Fund from increases in the number of offenders who would require substance abuse treatment services and from licensing DUI specialty providers. SRS estimates that an additional 225 individuals would require treatment at a cost of $176,045. Moreover, the licensing of DUI specialty providers would require $190,946 for the salary and wages of 1.00 Public Service Executive I FTE position and associated administrative, information technology, travel, and training expenses.

According to the Department of Revenue, the new application fee of $59 and the new administrative hearing fee of $50 would generate $713,000 in revenue for the Vehicle Operating Fund. This estimate assumes that 7,000 applications would be received and 6,000 hearings would be conducted. The Department would also incur costs of $20,000 to provide all state law enforcement agencies with new forms and $10,800 to modify the existing drivers license system.

It is estimated by the Kansas Department of Health and Environment (KDHE) that the Breath Alcohol Program would require additional State General Fund resources totaling $40,500 for the provision in the bill that would require KDHE to approve all ignition interlock devices. The amount includes salary and wages for 0.50 Laboratory Improvement Specialist FTE position and $10,500 for travel, equipment, training, and database revision expenses. Any fiscal effect associated with SB 7 is not reflected in The FY 2012 Governors Budget Report.