PART III.--CLASSIFICATION OF CRIMES AND SENTENCING
Article 46.--SENTENCING
21-4619.Expungement of certain convictions, arrestrecords and diversion agreements.(a) (1) Except as provided in subsections (b) and (c), any person convicted inthis state of a traffic infraction, cigarette or tobacco infraction,misdemeanor or a class D or E felony, or for crimes committed on or after July1, 1993, nondrug crimes ranked in severity levels 6 through 10 or any felonyranked in severity level 4 of the drug grid, may petition the convicting courtfor the expungement of such conviction or related arrest records if three ormore years have elapsed since the person: (A) Satisfied the sentence imposed;or (B) was discharged from probation, a community correctional servicesprogram, parole, postrelease supervision, conditional release or asuspended sentence.
(2) Except as provided in subsections (b) and (c), any person who hasfulfilled the terms of a diversion agreement may petition the district courtfor the expungement of such diversion agreement and related arrest records ifthree or more years have elapsed since the terms of the diversion agreementwere fulfilled.
(b) Except as provided in subsection (c), no person may petition forexpungement until five or more years have elapsed since the person satisfiedthe sentence imposed, the terms of a diversion agreement or was discharged fromprobation, a community correctional services program, parole, postreleasesupervision, conditional release or a suspended sentence, if such person wasconvicted of a class A, B or C felony, or for crimes committed on or after July1, 1993, if convicted of an off-grid felony or any nondrug crime ranked inseverity levels 1 through 5 or any felony ranked in severity levels 1 through 3of the drug grid, or:
(1) Vehicular homicide, as defined by K.S.A. 21-3405, and amendments thereto,or as prohibited by any law of another state which is in substantial conformitywith that statute;
(2) driving while the privilege to operate a motor vehicle on the publichighways of this state has been canceled, suspended or revoked, as prohibitedby K.S.A. 8-262, and amendments thereto, or as prohibited by any law of anotherstate which is in substantial conformity with that statute;
(3) perjury resulting from a violation of K.S.A. 8-261a,andamendmentsthereto, or resulting from the violation of a law of another state which is insubstantial conformity with that statute;
(4) violating the provisions of the fifth clause of K.S.A.8-142, andamendments thereto, relating to fraudulent applications or violating theprovisions of a law of another state which is in substantial conformity withthat statute;
(5) any crime punishable as a felony wherein a motorvehicle was usedin the perpetration of such crime;
(6) failing to stop at the scene of an accident and performthe dutiesrequired by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto, orrequired by a law of another state which is in substantial conformity withthose statutes;
(7) violating the provisions of K.S.A. 40-3104, andamendments thereto,relating to motor vehicle liability insurance coverage; or
(8) a violation of K.S.A. 21-3405b, prior to its repeal.
(c) There shall be no expungement of convictions for the following offensesor of convictions for an attempt to commit any of the following offenses: (1)Rape as defined in K.S.A. 21-3502, and amendments thereto; (2) indecentliberties with a child as defined in K.S.A. 21-3503, and amendments thereto;(3) aggravated indecent liberties with a child as defined in K.S.A. 21-3504,and amendments thereto; (4) criminal sodomy as defined in subsection (a)(2) or(a)(3) of K.S.A. 21-3505, and amendments thereto; (5) aggravated criminalsodomy as defined in K.S.A. 21-3506, and amendments thereto; (6) indecentsolicitation of a child as defined in K.S.A. 21-3510, and amendments thereto;(7) aggravated indecent solicitation of a child as defined in K.S.A. 21-3511,and amendments thereto; (8) sexual exploitation of a child as defined in K.S.A.21-3516, and amendments thereto; (9) aggravated incest as defined in K.S.A.21-3603, and amendments thereto; (10) endangering a child as defined in K.S.A.21-3608, and amendments thereto; (11) aggravated endangering a child asdefined in K.S.A. 21-3608a, and amendments thereto; (12) abuse of a childas defined in K.S.A.21-3609, and amendments thereto; (13) capital murder asdefined in K.S.A.21-3439, and amendments thereto; (14) murder in the firstdegree as defined inK.S.A. 21-3401, and amendments thereto; (15) murder in thesecond degree asdefined in K.S.A. 21-3402, and amendments thereto; (16)voluntary manslaughteras defined in K.S.A. 21-3403, and amendments thereto; (17)involuntarymanslaughter as defined in K.S.A. 21-3404, and amendments thereto;(18)involuntary manslaughter while driving under the influence of alcohol or drugsas defined in K.S.A. 21-3442, and amendments thereto; (19)sexualbattery as defined in K.S.A. 21-3517, and amendments thereto, when the victimwas less than 18 years of age at the time the crime was committed;(20)aggravated sexual battery as defined in K.S.A. 21-3518, and amendments thereto;(21) a violation of K.S.A. 8-1567, and amendments thereto,including anydiversion for such violation; (22) a violation of K.S.A.8-2,144, andamendments thereto, including any diversion for such violation; or(23) any conviction for any offense in effect at any timeprior to theeffective date of this act, that is comparable to any offense as provided inthis subsection.
(d) When a petition for expungement is filed, the court shall set a date fora hearing of such petition and shall cause notice of such hearing to be givento the prosecuting attorney and the arresting law enforcement agency. Thepetition shall state: (1) The defendant's full name;
(2) the full name of the defendant at the time of arrest, conviction ordiversion, if different than the defendant's current name;
(3) the defendant's sex, race and date of birth;
(4) the crime for which the defendant was arrested, convicted or diverted;
(5) the date of the defendant's arrest, conviction or diversion; and
(6) the identity of the convicting court, arresting law enforcement authorityor diverting authority. Except as provided further, there shall be nodocket fee for filing a petitionpursuant to this section.On and after July 1, 2009 through June 30, 2010, the supreme court mayimpose acharge, not toexceed $10 per case, to fund the costs of non-judicial personnel. The chargeestablished in thissection shall be the only fee collected or moneys in the nature of a feecollected for the case.Such charge shall only be established by an act of the legislature and no otherauthority isestablished by law or otherwise to collect a fee.All petitions for expungement shall be docketed inthe original criminal action. Any person who may have relevant informationabout the petitioner may testify at the hearing. The court may inquire into thebackground of the petitioner and shall have access to any reports or recordsrelating to the petitioner that are on file with the secretary of correctionsor the Kansas parole board.
(e) At the hearing on the petition, the court shall order the petitioner'sarrest record, conviction or diversion expunged if the court finds that:
(1) The petitioner has not been convicted of a felony in the past two yearsand no proceeding involving any such crime is presently pending or beinginstituted against the petitioner;
(2) the circumstances and behavior of the petitioner warrant theexpungement; and
(3) the expungement is consistent with the public welfare.
(f) When the court has ordered an arrest record, conviction or diversionexpunged, the order of expungement shall state the information required to becontained in the petition. The clerk of the court shall send a certified copyof the order of expungement to the Kansas bureau of investigation which shallnotify the federal bureau of investigation, the secretary of corrections andany other criminal justice agency which may have a record of the arrest,conviction or diversion. After the order of expungement is entered, thepetitioner shall be treated as not having been arrested, convicted or divertedof the crime, except that:
(1) Upon conviction for any subsequent crime, the conviction that wasexpunged may be considered as a prior conviction in determining the sentenceto be imposed;
(2) the petitioner shall disclose that the arrest, conviction or diversionoccurred if asked about previous arrests, convictions or diversions:
(A) In any application for licensure as a private detective, privatedetective agency, certification as a firearms trainer pursuant to K.S.A. 2009Supp. 75-7b21, and amendments thereto, or employment as a detective with aprivate detective agency, as defined by K.S.A. 75-7b01, and amendments thereto;as security personnel with a private patrol operator, as defined by K.S.A.75-7b01, and amendments thereto; or with an institution, as defined in K.S.A.76-12a01, and amendments thereto, of the department of social andrehabilitation services;
(B) in any application for admission, or for an order of reinstatement, tothe practice of law in this state;
(C) to aid in determining the petitioner's qualifications for employment withthe Kansas lottery or for work in sensitive areas within the Kansas lottery asdeemed appropriate by the executive director of the Kansas lottery;
(D) to aid in determining the petitioner's qualifications for executivedirector of the Kansas racing and gaming commission, for employment withthe commission orfor work in sensitive areas in parimutuel racing as deemed appropriate by theexecutive director of the commission, or to aid in determining qualificationsfor licensure or renewal of licensure by the commission;
(E) to aid in determining the petitioner's qualifications for thefollowingunder the Kansasexpanded lottery act: (i) Lottery gaming facility manager or prospectivemanager, racetrack gaming facility manager or prospective manager, licensee orcertificate holder; or (ii) an officer,director, employee, owner, agent or contractor thereof;
(F) upon application for a commercial driver's licenseunder K.S.A. 8-2,125through 8-2,142, and amendments thereto;
(G) to aid in determining the petitioner's qualificationsto be an employeeof the state gaming agency;
(H) to aid in determining the petitioner's qualificationsto be an employeeof a tribal gaming commission or to hold a license issued pursuant to atribal-state gaming compact;
(I) in any application for registration as a broker-dealer,agent, investmentadviser or investment adviser representative all as defined in K.S.A.17-12a102, and amendments thereto;
(J) in any application for employment as a law enforcementofficer asdefined in K.S.A. 22-2202 or 74-5602, and amendments thereto; or
(K) for applications received on and after July 1, 2006, to aid indetermining the petitioner's qualifications for a license to carry a concealedweapon pursuant to the personal and family protection act, K.S.A. 2009 Supp.75-7c01 etseq., and amendments thereto;
(3) the court, in the order of expungement, may specify other circumstancesunder which the conviction is to be disclosed;
(4) the conviction may be disclosed in a subsequent prosecution for anoffense which requires as an element of such offense a prior conviction of thetype expunged; and
(5) upon commitment to the custody of the secretary of corrections, anypreviously expunged record in the possession of the secretary of correctionsmay be reinstated and the expungement disregarded, and the record continued forthe purpose of the new commitment.
(g) Whenever a person is convicted of a crime, pleads guilty and pays a finefor a crime, is placed on parole, postrelease supervision or probation, isassigned to a community correctional services program, is granted a suspendedsentence or is released on conditional release, the person shall be informed ofthe ability to expunge the arrest records or conviction. Whenever a personenters into a diversion agreement, the person shall be informed of the abilityto expunge the diversion.
(h) Subject to the disclosures required pursuant to subsection (f), in anyapplication for employment, license or other civil right or privilege, or anyappearance as a witness, a person whose arrest records, conviction or diversionof a crime has been expunged under this statute may state that such person hasnever been arrested, convicted or diverted of such crime, but the expungementof a felony conviction does not relieve an individual of complying with anystate or federal law relating to the use or possession of firearms by personsconvicted of a felony.
(i) Whenever the record of any arrest, conviction or diversion has beenexpunged under the provisions of this section or under the provisions of anyother existing or former statute, the custodian of the records of arrest,conviction, diversion and incarceration relating to that crime shall notdisclose the existence of such records, except when requested by:
(1) The person whose record was expunged;
(2) a private detective agency or a private patrol operator, and the requestis accompanied by a statement that the request is being made in conjunctionwith an application for employment with such agency or operator by the personwhose record has been expunged;
(3) a court, upon a showing of a subsequent conviction of the person whoserecord has been expunged;
(4) the secretary of social and rehabilitation services, or a designee of thesecretary, for the purpose of obtaining information relating to employment inan institution, as defined in K.S.A. 76-12a01, and amendments thereto, of thedepartment of social and rehabilitation services of any person whose record hasbeen expunged;
(5) a person entitled to such information pursuant to the terms of theexpungement order;
(6) a prosecuting attorney, and such request is accompanied by a statementthat the request is being made in conjunction with a prosecution of an offensethat requires a prior conviction as one of the elements of such offense;
(7) the supreme court, the clerk or disciplinary administrator thereof, thestate board for admission of attorneys or the state board for discipline ofattorneys, and the request is accompanied by a statement that the request isbeing made in conjunction with an application for admission, or for an order ofreinstatement, to the practice of law in this state by the person whose recordhas been expunged;
(8) the Kansas lottery, and the request is accompanied by a statement thatthe request is being made to aid in determining qualifications for employmentwith the Kansas lottery or for work in sensitive areas within the Kansaslottery as deemed appropriate by the executive director of the Kansas lottery;
(9) the governor or the Kansas racing and gaming commission, or adesignee of thecommission, and the request is accompanied by a statement that the request isbeing made to aid in determining qualifications for executive director of thecommission, for employment with the commission, for work in sensitive areas inparimutuel racing as deemed appropriate by the executive director of thecommission or for licensure, renewal of licensure or continued licensureby the commission;
(10) the Kansas racing and gaming commission, or a designee of thecommission, and therequest is accompanied by a statement that the request is being made to aid indeterminingqualifications of the following under the Kansas expanded lottery act: (A)Lottery gaming facilitymanagers and prospective managers, racetrack gaming facility managers andprospective managers, licensees and certificate holders; and (B) theirofficers, directors,employees, owners, agents andcontractors;
(11) the Kansas sentencing commission;
(12) the state gaming agency, and the request isaccompanied by a statementthat the request is being made to aid in determining qualifications: (A) To bean employee of the state gaming agency; or (B) to be an employee of a tribalgaming commission or to hold a license issued pursuant to atribal-gaming compact;
(13) the Kansas securities commissioner or a designee ofthe commissioner,and the request is accompanied by a statement that the request is being made inconjunction with an application for registration as a broker-dealer, agent,investment adviser or investment adviser representative by such agency and theapplication was submitted by the person whose record has been expunged;
(14) the Kansas commissionon peace officers' standards and training andthe request isaccompanied by a statement that the request is being made to aid in determiningcertification eligibility as a law enforcement officer pursuant to K.S.A.74-5601 et seq., and amendments thereto;
(15) a law enforcement agency and the request isaccompanied by a statementthat the request is being made to aid in determining eligibility for employmentas a law enforcement officer as defined by K.S.A. 22-2202,and amendments thereto; or
(16) the attorney general and the request is accompaniedby a statement thatthe request is being made to aid in determining qualifications for a license tocarry a concealed weapon pursuant to the personal and family protection act.
PART III.--CLASSIFICATION OF CRIMES AND SENTENCING
Article 46.--SENTENCING
21-4619.Expungement of certain convictions, arrestrecords and diversion agreements.(a) (1) Except as provided in subsections (b) and (c), any person convicted inthis state of a traffic infraction, cigarette or tobacco infraction,misdemeanor or a class D or E felony, or for crimes committed on or after July1, 1993, nondrug crimes ranked in severity levels 6 through 10 or any felonyranked in severity level 4 of the drug grid, may petition the convicting courtfor the expungement of such conviction or related arrest records if three ormore years have elapsed since the person: (A) Satisfied the sentence imposed;or (B) was discharged from probation, a community correctional servicesprogram, parole, postrelease supervision, conditional release or asuspended sentence.
(2) Except as provided in subsections (b) and (c), any person who hasfulfilled the terms of a diversion agreement may petition the district courtfor the expungement of such diversion agreement and related arrest records ifthree or more years have elapsed since the terms of the diversion agreementwere fulfilled.
(b) Except as provided in subsection (c), no person may petition forexpungement until five or more years have elapsed since the person satisfiedthe sentence imposed, the terms of a diversion agreement or was discharged fromprobation, a community correctional services program, parole, postreleasesupervision, conditional release or a suspended sentence, if such person wasconvicted of a class A, B or C felony, or for crimes committed on or after July1, 1993, if convicted of an off-grid felony or any nondrug crime ranked inseverity levels 1 through 5 or any felony ranked in severity levels 1 through 3of the drug grid, or:
(1) Vehicular homicide, as defined by K.S.A. 21-3405, and amendments thereto,or as prohibited by any law of another state which is in substantial conformitywith that statute;
(2) driving while the privilege to operate a motor vehicle on the publichighways of this state has been canceled, suspended or revoked, as prohibitedby K.S.A. 8-262, and amendments thereto, or as prohibited by any law of anotherstate which is in substantial conformity with that statute;
(3) perjury resulting from a violation of K.S.A. 8-261a,andamendmentsthereto, or resulting from the violation of a law of another state which is insubstantial conformity with that statute;
(4) violating the provisions of the fifth clause of K.S.A.8-142, andamendments thereto, relating to fraudulent applications or violating theprovisions of a law of another state which is in substantial conformity withthat statute;
(5) any crime punishable as a felony wherein a motorvehicle was usedin the perpetration of such crime;
(6) failing to stop at the scene of an accident and performthe dutiesrequired by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto, orrequired by a law of another state which is in substantial conformity withthose statutes;
(7) violating the provisions of K.S.A. 40-3104, andamendments thereto,relating to motor vehicle liability insurance coverage; or
(8) a violation of K.S.A. 21-3405b, prior to its repeal.
(c) There shall be no expungement of convictions for the following offensesor of convictions for an attempt to commit any of the following offenses: (1)Rape as defined in K.S.A. 21-3502, and amendments thereto; (2) indecentliberties with a child as defined in K.S.A. 21-3503, and amendments thereto;(3) aggravated indecent liberties with a child as defined in K.S.A. 21-3504,and amendments thereto; (4) criminal sodomy as defined in subsection (a)(2) or(a)(3) of K.S.A. 21-3505, and amendments thereto; (5) aggravated criminalsodomy as defined in K.S.A. 21-3506, and amendments thereto; (6) indecentsolicitation of a child as defined in K.S.A. 21-3510, and amendments thereto;(7) aggravated indecent solicitation of a child as defined in K.S.A. 21-3511,and amendments thereto; (8) sexual exploitation of a child as defined in K.S.A.21-3516, and amendments thereto; (9) aggravated incest as defined in K.S.A.21-3603, and amendments thereto; (10) endangering a child as defined in K.S.A.21-3608, and amendments thereto; (11) aggravated endangering a child asdefined in K.S.A. 21-3608a, and amendments thereto; (12) abuse of a childas defined in K.S.A.21-3609, and amendments thereto; (13) capital murder asdefined in K.S.A.21-3439, and amendments thereto; (14) murder in the firstdegree as defined inK.S.A. 21-3401, and amendments thereto; (15) murder in thesecond degree asdefined in K.S.A. 21-3402, and amendments thereto; (16)voluntary manslaughteras defined in K.S.A. 21-3403, and amendments thereto; (17)involuntarymanslaughter as defined in K.S.A. 21-3404, and amendments thereto;(18)involuntary manslaughter while driving under the influence of alcohol or drugsas defined in K.S.A. 21-3442, and amendments thereto; (19)sexualbattery as defined in K.S.A. 21-3517, and amendments thereto, when the victimwas less than 18 years of age at the time the crime was committed;(20)aggravated sexual battery as defined in K.S.A. 21-3518, and amendments thereto;(21) a violation of K.S.A. 8-1567, and amendments thereto,including anydiversion for such violation; (22) a violation of K.S.A.8-2,144, andamendments thereto, including any diversion for such violation; or(23) any conviction for any offense in effect at any timeprior to theeffective date of this act, that is comparable to any offense as provided inthis subsection.
(d) When a petition for expungement is filed, the court shall set a date fora hearing of such petition and shall cause notice of such hearing to be givento the prosecuting attorney and the arresting law enforcement agency. Thepetition shall state: (1) The defendant's full name;
(2) the full name of the defendant at the time of arrest, conviction ordiversion, if different than the defendant's current name;
(3) the defendant's sex, race and date of birth;
(4) the crime for which the defendant was arrested, convicted or diverted;
(5) the date of the defendant's arrest, conviction or diversion; and
(6) the identity of the convicting court, arresting law enforcement authorityor diverting authority. Except as provided further, there shall be nodocket fee for filing a petitionpursuant to this section.On and after July 1, 2009 through June 30, 2010, the supreme court mayimpose acharge, not toexceed $10 per case, to fund the costs of non-judicial personnel. The chargeestablished in thissection shall be the only fee collected or moneys in the nature of a feecollected for the case.Such charge shall only be established by an act of the legislature and no otherauthority isestablished by law or otherwise to collect a fee.All petitions for expungement shall be docketed inthe original criminal action. Any person who may have relevant informationabout the petitioner may testify at the hearing. The court may inquire into thebackground of the petitioner and shall have access to any reports or recordsrelating to the petitioner that are on file with the secretary of correctionsor the Kansas parole board.
(e) At the hearing on the petition, the court shall order the petitioner'sarrest record, conviction or diversion expunged if the court finds that:
(1) The petitioner has not been convicted of a felony in the past two yearsand no proceeding involving any such crime is presently pending or beinginstituted against the petitioner;
(2) the circumstances and behavior of the petitioner warrant theexpungement; and
(3) the expungement is consistent with the public welfare.
(f) When the court has ordered an arrest record, conviction or diversionexpunged, the order of expungement shall state the information required to becontained in the petition. The clerk of the court shall send a certified copyof the order of expungement to the Kansas bureau of investigation which shallnotify the federal bureau of investigation, the secretary of corrections andany other criminal justice agency which may have a record of the arrest,conviction or diversion. After the order of expungement is entered, thepetitioner shall be treated as not having been arrested, convicted or divertedof the crime, except that:
(1) Upon conviction for any subsequent crime, the conviction that wasexpunged may be considered as a prior conviction in determining the sentenceto be imposed;
(2) the petitioner shall disclose that the arrest, conviction or diversionoccurred if asked about previous arrests, convictions or diversions:
(A) In any application for licensure as a private detective, privatedetective agency, certification as a firearms trainer pursuant to K.S.A. 2009Supp. 75-7b21, and amendments thereto, or employment as a detective with aprivate detective agency, as defined by K.S.A. 75-7b01, and amendments thereto;as security personnel with a private patrol operator, as defined by K.S.A.75-7b01, and amendments thereto; or with an institution, as defined in K.S.A.76-12a01, and amendments thereto, of the department of social andrehabilitation services;
(B) in any application for admission, or for an order of reinstatement, tothe practice of law in this state;
(C) to aid in determining the petitioner's qualifications for employment withthe Kansas lottery or for work in sensitive areas within the Kansas lottery asdeemed appropriate by the executive director of the Kansas lottery;
(D) to aid in determining the petitioner's qualifications for executivedirector of the Kansas racing and gaming commission, for employment withthe commission orfor work in sensitive areas in parimutuel racing as deemed appropriate by theexecutive director of the commission, or to aid in determining qualificationsfor licensure or renewal of licensure by the commission;
(E) to aid in determining the petitioner's qualifications for thefollowingunder the Kansasexpanded lottery act: (i) Lottery gaming facility manager or prospectivemanager, racetrack gaming facility manager or prospective manager, licensee orcertificate holder; or (ii) an officer,director, employee, owner, agent or contractor thereof;
(F) upon application for a commercial driver's licenseunder K.S.A. 8-2,125through 8-2,142, and amendments thereto;
(G) to aid in determining the petitioner's qualificationsto be an employeeof the state gaming agency;
(H) to aid in determining the petitioner's qualificationsto be an employeeof a tribal gaming commission or to hold a license issued pursuant to atribal-state gaming compact;
(I) in any application for registration as a broker-dealer,agent, investmentadviser or investment adviser representative all as defined in K.S.A.17-12a102, and amendments thereto;
(J) in any application for employment as a law enforcementofficer asdefined in K.S.A. 22-2202 or 74-5602, and amendments thereto; or
(K) for applications received on and after July 1, 2006, to aid indetermining the petitioner's qualifications for a license to carry a concealedweapon pursuant to the personal and family protection act, K.S.A. 2009 Supp.75-7c01 etseq., and amendments thereto;
(3) the court, in the order of expungement, may specify other circumstancesunder which the conviction is to be disclosed;
(4) the conviction may be disclosed in a subsequent prosecution for anoffense which requires as an element of such offense a prior conviction of thetype expunged; and
(5) upon commitment to the custody of the secretary of corrections, anypreviously expunged record in the possession of the secretary of correctionsmay be reinstated and the expungement disregarded, and the record continued forthe purpose of the new commitment.
(g) Whenever a person is convicted of a crime, pleads guilty and pays a finefor a crime, is placed on parole, postrelease supervision or probation, isassigned to a community correctional services program, is granted a suspendedsentence or is released on conditional release, the person shall be informed ofthe ability to expunge the arrest records or conviction. Whenever a personenters into a diversion agreement, the person shall be informed of the abilityto expunge the diversion.
(h) Subject to the disclosures required pursuant to subsection (f), in anyapplication for employment, license or other civil right or privilege, or anyappearance as a witness, a person whose arrest records, conviction or diversionof a crime has been expunged under this statute may state that such person hasnever been arrested, convicted or diverted of such crime, but the expungementof a felony conviction does not relieve an individual of complying with anystate or federal law relating to the use or possession of firearms by personsconvicted of a felony.
(i) Whenever the record of any arrest, conviction or diversion has beenexpunged under the provisions of this section or under the provisions of anyother existing or former statute, the custodian of the records of arrest,conviction, diversion and incarceration relating to that crime shall notdisclose the existence of such records, except when requested by:
(1) The person whose record was expunged;
(2) a private detective agency or a private patrol operator, and the requestis accompanied by a statement that the request is being made in conjunctionwith an application for employment with such agency or operator by the personwhose record has been expunged;
(3) a court, upon a showing of a subsequent conviction of the person whoserecord has been expunged;
(4) the secretary of social and rehabilitation services, or a designee of thesecretary, for the purpose of obtaining information relating to employment inan institution, as defined in K.S.A. 76-12a01, and amendments thereto, of thedepartment of social and rehabilitation services of any person whose record hasbeen expunged;
(5) a person entitled to such information pursuant to the terms of theexpungement order;
(6) a prosecuting attorney, and such request is accompanied by a statementthat the request is being made in conjunction with a prosecution of an offensethat requires a prior conviction as one of the elements of such offense;
(7) the supreme court, the clerk or disciplinary administrator thereof, thestate board for admission of attorneys or the state board for discipline ofattorneys, and the request is accompanied by a statement that the request isbeing made in conjunction with an application for admission, or for an order ofreinstatement, to the practice of law in this state by the person whose recordhas been expunged;
(8) the Kansas lottery, and the request is accompanied by a statement thatthe request is being made to aid in determining qualifications for employmentwith the Kansas lottery or for work in sensitive areas within the Kansaslottery as deemed appropriate by the executive director of the Kansas lottery;
(9) the governor or the Kansas racing and gaming commission, or adesignee of thecommission, and the request is accompanied by a statement that the request isbeing made to aid in determining qualifications for executive director of thecommission, for employment with the commission, for work in sensitive areas inparimutuel racing as deemed appropriate by the executive director of thecommission or for licensure, renewal of licensure or continued licensureby the commission;
(10) the Kansas racing and gaming commission, or a designee of thecommission, and therequest is accompanied by a statement that the request is being made to aid indeterminingqualifications of the following under the Kansas expanded lottery act: (A)Lottery gaming facilitymanagers and prospective managers, racetrack gaming facility managers andprospective managers, licensees and certificate holders; and (B) theirofficers, directors,employees, owners, agents andcontractors;
(11) the Kansas sentencing commission;
(12) the state gaming agency, and the request isaccompanied by a statementthat the request is being made to aid in determining qualifications: (A) To bean employee of the state gaming agency; or (B) to be an employee of a tribalgaming commission or to hold a license issued pursuant to atribal-gaming compact;
(13) the Kansas securities commissioner or a designee ofthe commissioner,and the request is accompanied by a statement that the request is being made inconjunction with an application for registration as a broker-dealer, agent,investment adviser or investment adviser representative by such agency and theapplication was submitted by the person whose record has been expunged;
(14) the Kansas commissionon peace officers' standards and training andthe request isaccompanied by a statement that the request is being made to aid in determiningcertification eligibility as a law enforcement officer pursuant to K.S.A.74-5601 et seq., and amendments thereto;
(15) a law enforcement agency and the request isaccompanied by a statementthat the request is being made to aid in determining eligibility for employmentas a law enforcement officer as defined by K.S.A. 22-2202,and amendments thereto; or
(16) the attorney general and the request is accompaniedby a statement thatthe request is being made to aid in determining qualifications for a license tocarry a concealed weapon pursuant to the personal and family protection act.
PART III.--CLASSIFICATION OF CRIMES AND SENTENCING
Article 46.--SENTENCING
21-4619.Expungement of certain convictions, arrestrecords and diversion agreements.(a) (1) Except as provided in subsections (b) and (c), any person convicted inthis state of a traffic infraction, cigarette or tobacco infraction,misdemeanor or a class D or E felony, or for crimes committed on or after July1, 1993, nondrug crimes ranked in severity levels 6 through 10 or any felonyranked in severity level 4 of the drug grid, may petition the convicting courtfor the expungement of such conviction or related arrest records if three ormore years have elapsed since the person: (A) Satisfied the sentence imposed;or (B) was discharged from probation, a community correctional servicesprogram, parole, postrelease supervision, conditional release or asuspended sentence.
(2) Except as provided in subsections (b) and (c), any person who hasfulfilled the terms of a diversion agreement may petition the district courtfor the expungement of such diversion agreement and related arrest records ifthree or more years have elapsed since the terms of the diversion agreementwere fulfilled.
(b) Except as provided in subsection (c), no person may petition forexpungement until five or more years have elapsed since the person satisfiedthe sentence imposed, the terms of a diversion agreement or was discharged fromprobation, a community correctional services program, parole, postreleasesupervision, conditional release or a suspended sentence, if such person wasconvicted of a class A, B or C felony, or for crimes committed on or after July1, 1993, if convicted of an off-grid felony or any nondrug crime ranked inseverity levels 1 through 5 or any felony ranked in severity levels 1 through 3of the drug grid, or:
(1) Vehicular homicide, as defined by K.S.A. 21-3405, and amendments thereto,or as prohibited by any law of another state which is in substantial conformitywith that statute;
(2) driving while the privilege to operate a motor vehicle on the publichighways of this state has been canceled, suspended or revoked, as prohibitedby K.S.A. 8-262, and amendments thereto, or as prohibited by any law of anotherstate which is in substantial conformity with that statute;
(3) perjury resulting from a violation of K.S.A. 8-261a,andamendmentsthereto, or resulting from the violation of a law of another state which is insubstantial conformity with that statute;
(4) violating the provisions of the fifth clause of K.S.A.8-142, andamendments thereto, relating to fraudulent applications or violating theprovisions of a law of another state which is in substantial conformity withthat statute;
(5) any crime punishable as a felony wherein a motorvehicle was usedin the perpetration of such crime;
(6) failing to stop at the scene of an accident and performthe dutiesrequired by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto, orrequired by a law of another state which is in substantial conformity withthose statutes;
(7) violating the provisions of K.S.A. 40-3104, andamendments thereto,relating to motor vehicle liability insurance coverage; or
(8) a violation of K.S.A. 21-3405b, prior to its repeal.
(c) There shall be no expungement of convictions for the following offensesor of convictions for an attempt to commit any of the following offenses: (1)Rape as defined in K.S.A. 21-3502, and amendments thereto; (2) indecentliberties with a child as defined in K.S.A. 21-3503, and amendments thereto;(3) aggravated indecent liberties with a child as defined in K.S.A. 21-3504,and amendments thereto; (4) criminal sodomy as defined in subsection (a)(2) or(a)(3) of K.S.A. 21-3505, and amendments thereto; (5) aggravated criminalsodomy as defined in K.S.A. 21-3506, and amendments thereto; (6) indecentsolicitation of a child as defined in K.S.A. 21-3510, and amendments thereto;(7) aggravated indecent solicitation of a child as defined in K.S.A. 21-3511,and amendments thereto; (8) sexual exploitation of a child as defined in K.S.A.21-3516, and amendments thereto; (9) aggravated incest as defined in K.S.A.21-3603, and amendments thereto; (10) endangering a child as defined in K.S.A.21-3608, and amendments thereto; (11) aggravated endangering a child asdefined in K.S.A. 21-3608a, and amendments thereto; (12) abuse of a childas defined in K.S.A.21-3609, and amendments thereto; (13) capital murder asdefined in K.S.A.21-3439, and amendments thereto; (14) murder in the firstdegree as defined inK.S.A. 21-3401, and amendments thereto; (15) murder in thesecond degree asdefined in K.S.A. 21-3402, and amendments thereto; (16)voluntary manslaughteras defined in K.S.A. 21-3403, and amendments thereto; (17)involuntarymanslaughter as defined in K.S.A. 21-3404, and amendments thereto;(18)involuntary manslaughter while driving under the influence of alcohol or drugsas defined in K.S.A. 21-3442, and amendments thereto; (19)sexualbattery as defined in K.S.A. 21-3517, and amendments thereto, when the victimwas less than 18 years of age at the time the crime was committed;(20)aggravated sexual battery as defined in K.S.A. 21-3518, and amendments thereto;(21) a violation of K.S.A. 8-1567, and amendments thereto,including anydiversion for such violation; (22) a violation of K.S.A.8-2,144, andamendments thereto, including any diversion for such violation; or(23) any conviction for any offense in effect at any timeprior to theeffective date of this act, that is comparable to any offense as provided inthis subsection.
(d) When a petition for expungement is filed, the court shall set a date fora hearing of such petition and shall cause notice of such hearing to be givento the prosecuting attorney and the arresting law enforcement agency. Thepetition shall state: (1) The defendant's full name;
(2) the full name of the defendant at the time of arrest, conviction ordiversion, if different than the defendant's current name;
(3) the defendant's sex, race and date of birth;
(4) the crime for which the defendant was arrested, convicted or diverted;
(5) the date of the defendant's arrest, conviction or diversion; and
(6) the identity of the convicting court, arresting law enforcement authorityor diverting authority. Except as provided further, there shall be nodocket fee for filing a petitionpursuant to this section.On and after July 1, 2009 through June 30, 2010, the supreme court mayimpose acharge, not toexceed $10 per case, to fund the costs of non-judicial personnel. The chargeestablished in thissection shall be the only fee collected or moneys in the nature of a feecollected for the case.Such charge shall only be established by an act of the legislature and no otherauthority isestablished by law or otherwise to collect a fee.All petitions for expungement shall be docketed inthe original criminal action. Any person who may have relevant informationabout the petitioner may testify at the hearing. The court may inquire into thebackground of the petitioner and shall have access to any reports or recordsrelating to the petitioner that are on file with the secretary of correctionsor the Kansas parole board.
(e) At the hearing on the petition, the court shall order the petitioner'sarrest record, conviction or diversion expunged if the court finds that:
(1) The petitioner has not been convicted of a felony in the past two yearsand no proceeding involving any such crime is presently pending or beinginstituted against the petitioner;
(2) the circumstances and behavior of the petitioner warrant theexpungement; and
(3) the expungement is consistent with the public welfare.
(f) When the court has ordered an arrest record, conviction or diversionexpunged, the order of expungement shall state the information required to becontained in the petition. The clerk of the court shall send a certified copyof the order of expungement to the Kansas bureau of investigation which shallnotify the federal bureau of investigation, the secretary of corrections andany other criminal justice agency which may have a record of the arrest,conviction or diversion. After the order of expungement is entered, thepetitioner shall be treated as not having been arrested, convicted or divertedof the crime, except that:
(1) Upon conviction for any subsequent crime, the conviction that wasexpunged may be considered as a prior conviction in determining the sentenceto be imposed;
(2) the petitioner shall disclose that the arrest, conviction or diversionoccurred if asked about previous arrests, convictions or diversions:
(A) In any application for licensure as a private detective, privatedetective agency, certification as a firearms trainer pursuant to K.S.A. 2009Supp. 75-7b21, and amendments thereto, or employment as a detective with aprivate detective agency, as defined by K.S.A. 75-7b01, and amendments thereto;as security personnel with a private patrol operator, as defined by K.S.A.75-7b01, and amendments thereto; or with an institution, as defined in K.S.A.76-12a01, and amendments thereto, of the department of social andrehabilitation services;
(B) in any application for admission, or for an order of reinstatement, tothe practice of law in this state;
(C) to aid in determining the petitioner's qualifications for employment withthe Kansas lottery or for work in sensitive areas within the Kansas lottery asdeemed appropriate by the executive director of the Kansas lottery;
(D) to aid in determining the petitioner's qualifications for executivedirector of the Kansas racing and gaming commission, for employment withthe commission orfor work in sensitive areas in parimutuel racing as deemed appropriate by theexecutive director of the commission, or to aid in determining qualificationsfor licensure or renewal of licensure by the commission;
(E) to aid in determining the petitioner's qualifications for thefollowingunder the Kansasexpanded lottery act: (i) Lottery gaming facility manager or prospectivemanager, racetrack gaming facility manager or prospective manager, licensee orcertificate holder; or (ii) an officer,director, employee, owner, agent or contractor thereof;
(F) upon application for a commercial driver's licenseunder K.S.A. 8-2,125through 8-2,142, and amendments thereto;
(G) to aid in determining the petitioner's qualificationsto be an employeeof the state gaming agency;
(H) to aid in determining the petitioner's qualificationsto be an employeeof a tribal gaming commission or to hold a license issued pursuant to atribal-state gaming compact;
(I) in any application for registration as a broker-dealer,agent, investmentadviser or investment adviser representative all as defined in K.S.A.17-12a102, and amendments thereto;
(J) in any application for employment as a law enforcementofficer asdefined in K.S.A. 22-2202 or 74-5602, and amendments thereto; or
(K) for applications received on and after July 1, 2006, to aid indetermining the petitioner's qualifications for a license to carry a concealedweapon pursuant to the personal and family protection act, K.S.A. 2009 Supp.75-7c01 etseq., and amendments thereto;
(3) the court, in the order of expungement, may specify other circumstancesunder which the conviction is to be disclosed;
(4) the conviction may be disclosed in a subsequent prosecution for anoffense which requires as an element of such offense a prior conviction of thetype expunged; and
(5) upon commitment to the custody of the secretary of corrections, anypreviously expunged record in the possession of the secretary of correctionsmay be reinstated and the expungement disregarded, and the record continued forthe purpose of the new commitment.
(g) Whenever a person is convicted of a crime, pleads guilty and pays a finefor a crime, is placed on parole, postrelease supervision or probation, isassigned to a community correctional services program, is granted a suspendedsentence or is released on conditional release, the person shall be informed ofthe ability to expunge the arrest records or conviction. Whenever a personenters into a diversion agreement, the person shall be informed of the abilityto expunge the diversion.
(h) Subject to the disclosures required pursuant to subsection (f), in anyapplication for employment, license or other civil right or privilege, or anyappearance as a witness, a person whose arrest records, conviction or diversionof a crime has been expunged under this statute may state that such person hasnever been arrested, convicted or diverted of such crime, but the expungementof a felony conviction does not relieve an individual of complying with anystate or federal law relating to the use or possession of firearms by personsconvicted of a felony.
(i) Whenever the record of any arrest, conviction or diversion has beenexpunged under the provisions of this section or under the provisions of anyother existing or former statute, the custodian of the records of arrest,conviction, diversion and incarceration relating to that crime shall notdisclose the existence of such records, except when requested by:
(1) The person whose record was expunged;
(2) a private detective agency or a private patrol operator, and the requestis accompanied by a statement that the request is being made in conjunctionwith an application for employment with such agency or operator by the personwhose record has been expunged;
(3) a court, upon a showing of a subsequent conviction of the person whoserecord has been expunged;
(4) the secretary of social and rehabilitation services, or a designee of thesecretary, for the purpose of obtaining information relating to employment inan institution, as defined in K.S.A. 76-12a01, and amendments thereto, of thedepartment of social and rehabilitation services of any person whose record hasbeen expunged;
(5) a person entitled to such information pursuant to the terms of theexpungement order;
(6) a prosecuting attorney, and such request is accompanied by a statementthat the request is being made in conjunction with a prosecution of an offensethat requires a prior conviction as one of the elements of such offense;
(7) the supreme court, the clerk or disciplinary administrator thereof, thestate board for admission of attorneys or the state board for discipline ofattorneys, and the request is accompanied by a statement that the request isbeing made in conjunction with an application for admission, or for an order ofreinstatement, to the practice of law in this state by the person whose recordhas been expunged;
(8) the Kansas lottery, and the request is accompanied by a statement thatthe request is being made to aid in determining qualifications for employmentwith the Kansas lottery or for work in sensitive areas within the Kansaslottery as deemed appropriate by the executive director of the Kansas lottery;
(9) the governor or the Kansas racing and gaming commission, or adesignee of thecommission, and the request is accompanied by a statement that the request isbeing made to aid in determining qualifications for executive director of thecommission, for employment with the commission, for work in sensitive areas inparimutuel racing as deemed appropriate by the executive director of thecommission or for licensure, renewal of licensure or continued licensureby the commission;
(10) the Kansas racing and gaming commission, or a designee of thecommission, and therequest is accompanied by a statement that the request is being made to aid indeterminingqualifications of the following under the Kansas expanded lottery act: (A)Lottery gaming facilitymanagers and prospective managers, racetrack gaming facility managers andprospective managers, licensees and certificate holders; and (B) theirofficers, directors,employees, owners, agents andcontractors;
(11) the Kansas sentencing commission;
(12) the state gaming agency, and the request isaccompanied by a statementthat the request is being made to aid in determining qualifications: (A) To bean employee of the state gaming agency; or (B) to be an employee of a tribalgaming commission or to hold a license issued pursuant to atribal-gaming compact;
(13) the Kansas securities commissioner or a designee ofthe commissioner,and the request is accompanied by a statement that the request is being made inconjunction with an application for registration as a broker-dealer, agent,investment adviser or investment adviser representative by such agency and theapplication was submitted by the person whose record has been expunged;
(14) the Kansas commissionon peace officers' standards and training andthe request isaccompanied by a statement that the request is being made to aid in determiningcertification eligibility as a law enforcement officer pursuant to K.S.A.74-5601 et seq., and amendments thereto;
(15) a law enforcement agency and the request isaccompanied by a statementthat the request is being made to aid in determining eligibility for employmentas a law enforcement officer as defined by K.S.A. 22-2202,and amendments thereto; or
(16) the attorney general and the request is accompaniedby a statement thatthe request is being made to aid in determining qualifications for a license tocarry a concealed weapon pursuant to the personal and family protection act.
