8-1567 DUI Statute

DUI STATUTE

Sec. 20. K.S.A. 2011 Supp. 8-1567 is hereby amended to read as

follows: 8-1567. (a) Driving under the influence is operating or attempting

to operate any vehicle within this state while:

(1) The alcohol concentration in the person's blood or breath as

shown by any competent evidence, including other competent evidence,

as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amend-

ments thereto, is .08 or more;

(2) the alcohol concentration in the person's blood or breath, as meas-

ured within three hours of the time of operating or attempting to operate

a vehicle, is .08 or more;

(3) under the influence of alcohol to a degree that renders the person

incapable of safely driving a vehicle;

(4) under the influence of any drug or combination of drugs to a

degree that renders the person incapable of safely driving a vehicle; or

(5) under the influence of a combination of alcohol and any drug or

drugs to a degree that renders the person incapable of safely driving a

vehicle; or

(b) (1) Driving under the influence is:

(A) On a first conviction a class B, nonperson misdemeanor. The

person convicted shall be sentenced to not less than 48 consecutive hours

nor more than six months' imprisonment, or in the court's discretion 100

hours of public service, and fined not less than $750 nor more than

$1,000. The person convicted shall serve at least 48 consecutive hours'

imprisonment or 100 hours of public service either before or as a con-

dition of any grant of probation or suspension, reduction of sentence or

parole. 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 remainder of the sentence only after such

person has served 48 consecutive hours' imprisonment;

(B) on a second 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 re-

lease 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 impris-

onment 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;

(C) on a third conviction a class A, nonperson misdemeanor, except

as provided in subsection (b)(1)(D). The person convicted shall be sen-

tenced 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 con-

victed shall not be eligible for release on probation, suspension or reduc-

tion 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 confine-

ment. Such 240 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 of-

fender's residence provided for in the house arrest agreement shall not

be counted as part of the 2,160 hours;

(D) on a third 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 sen-

tence 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 consec-

utive 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 pro-

gram, 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 of-

fender'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

(E) on a fourth 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 con-

victed shall not be eligible for release on probation, suspension or reduc-

tion 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 of-

fender'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 pur-

suant to subsection (b)(1)(D) or (b)(1)(E) 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 participat-

ing 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 im-

posed in the event the secretary of corrections determines: (A) That sub-

stance 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)(C),

(b)(1)(D) or (b)(1)(E), 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 de-

termine 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 of-

fender shall be determined by use of a risk assessment tool specified by

the Kansas sentencing commission. The law enforcement agency main-

taining 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 impris-

onment 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) or (b)(1)(B), the court shall order the person to par-

ticipate 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 impris-

onment. 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 en-

hanced penalty imposed shall not exceed the maximum sentence allow-

able by law. During the service of the enhanced penalty, the judge may

order the person on house arrest, work release or other conditional re-

lease.

(d) If a person is charged with a violation of this section involving

drugs, the fact that the person is or has been entitled to use the drug

under the laws of this state shall not constitute a defense against the

charge.

(e) The court may establish the terms and time for payment of any

fines, fees, assessments and costs imposed pursuant to this section. Any

assessment 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.

(f) 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.

(g) 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 per-

son 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.

(h) The court shall electronically report every conviction of a vio-

lation 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.

(i) 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 this section, or a violation of an

ordinance of any city or resolution of any county which prohibits the acts

that this section prohibits, or entering into a diversion agreement in lieu

of further criminal proceedings on a complaint alleging any such viola-

tions, shall be taken into account, but only convictions or diversions oc-

curring on or after July 1, 2001. Nothing in this provision shall be con-

strued as preventing any court from considering any convictions or

diversions occurring during the person's lifetime in determining the sen-

tence 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 occurring

during a person's lifetime shall be taken into account: (A) Refusing to

submit to a test to determine the presence of alcohol or drugs, section 2,

and amendments thereto; (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 amend-

ments thereto; (D) involuntary manslaughter while driving under the in-

fluence of alcohol or drugs, K.S.A. 21-3442, prior to its repeal, or subsec-

tion (a)(3) of K.S.A. 2011 Supp. 21-5405, and amendments thereto; and

(E) 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 amend-

ments 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 (i)(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 (i)(1) or (i)(2); and (C) receiving punishment under the uni-

form code of military justice or Kansas code of military justice for an act

which was committed on a military reservation and which would consti-

tute a crime described in subsection (i)(1) or (i)(2) if committed off a

military reservation in this state;

(4) multiple convictions of any crime described in subsection (i)(1) or

(i)(2) arising from the same arrest shall only be counted as one conviction;

(5) it is irrelevant whether an offense occurred before or after

conviction for a previous offense; and

(6) a person may enter into a diversion agreement in lieu of further

criminal proceedings for a violation of this section, and amendments

thereto, or an ordinance which prohibits the acts of this section, and

amendments thereto, only once during the person's lifetime.

(j) 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 con-

viction, shall suspend, restrict or suspend and restrict the person's driving

privileges as provided by K.S.A. 8-1014, and amendments thereto.

(k) (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 res-

olution 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) On and after July 1, 2007, and retroactive for ordinance violations

committed on or after July 1, 2006, 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 or-

der that the convicted person pay restitution to any victim who suffered

loss due to the violation for which the person was convicted.

(l) (1) Upon the filing of a complaint, citation or notice to appear

alleging a person has violated a city ordinance prohibiting the acts pro-

hibited 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 pun-

ished as, a felony, the city attorney shall refer the violation to the appro-

priate county or district attorney for prosecution.

(m) No plea bargaining agreement shall be entered into nor shall

any judge approve a plea bargaining agreement entered into for the pur-

pose 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.

(n) The alternatives set out in subsections (a)(1), (a)(2) and (a)(3)

may be pleaded in the alternative, and the state, city or county, but shall

not be required to, may elect one or two of the three prior to submission

of the case to the fact finder.

(o) As used in this section: (1) ''Alcohol concentration'' means the

number of grams of alcohol per 100 milliliters of blood or per 210 liters

of breath;

(2) ''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; and

(3) ''drug'' includes toxic vapors as such term is defined in K.S.A. 2011

Supp. 21-5712, and amendments thereto.

(p) (1) The amount of the increase in fines as specified in 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 remittance of the increase provided

in this act, the state treasurer shall deposit the entire amount in the state

treasury and the state treasurer shall credit 50% to the community alco-

holism and intoxication programs fund and 50% to the department of

corrections alcohol and drug abuse treatment fund, which is hereby cre-

ated in the state treasury.

(2) On and after July 1, 2011, 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 com-

munity corrections supervision fund established by K.S.A. 2011 Supp. 75-

52,113, and amendments thereto.