8-1002. Test refusal or failure; suspension of license; notice; procedure.
8-1002
8-1002. Test refusal or failure; suspension of
license;
notice; 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 five
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. 200, § 13;
L. 2007, ch. 181, § 4; July 1.