Article 15.--UNIFORM ACT REGULATING TRAFFIC; RULES OF THE ROAD
8-1567.Driving under influence of alcohol or drugs;
blood alcohol
concentration; penalties. [See Revisor's Note]
(a) No person shall operate or attempt 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 amendments thereto, is .08
or more;
(2) the alcohol concentration in the person's blood or breath, as
measured within two 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.
(b) No person shall operate or attempt to operate any vehicle within
this state if the person is a habitual user of
any narcotic, hypnotic, somnifacient or stimulating drug.
(c) 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.
(d) Upon a first
conviction of a violation of this section, a person shall
be guilty of a class B, nonperson misdemeanor and 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 $500 nor more than
$1,000. The
person convicted must serve at least 48 consecutive hours' imprisonment
or 100 hours of public service either before or as a condition of any grant
of probation or suspension, reduction
of sentence or parole.
In addition, the court shall enter an order which requires that the person
enroll in and successfully complete an alcohol and drug safety action education
program or treatment program as provided in K.S.A. 8-1008, and amendments
thereto, or both the education and treatment programs.
(e) On a second conviction of a violation of this section, a person shall
be guilty of a class A, nonperson misdemeanor and sentenced to
not less
than 90 days nor more than one year's imprisonment and fined not less than
$1,000 nor more than $1,500. The person
convicted must serve at least five consecutive days'
imprisonment before the person is granted probation, suspension or
reduction of sentence or parole or is otherwise released. The five days'
imprisonment mandated by this subsection may be served
in a work release
program only after such person has served 48 consecutive hours' imprisonment,
provided such work release program requires such person to return to
confinement at the end of each day in the work release program. The court may
place the person convicted under a house arrest program pursuant to K.S.A.
21-4603b, and amendments thereto, to serve the remainder of the minimum
sentence only after such person has served 48 consecutive hours'
imprisonment.
As a condition
of any grant of probation, suspension of sentence or parole or of any other
release, the person shall be required to enter into and complete a
treatment
program for alcohol and drug abuse as provided in K.S.A. 8-1008, and amendments
thereto.
(f) (1) On the third conviction of a violation of
this section,
a person shall be guilty of a nonperson felony and
sentenced to
not less than 90 days nor more than one
year's imprisonment and fined not less than $1,500 nor
more than $2,500.
The person convicted
shall
not be
eligible for release on probation, suspension or reduction of sentence or
parole until the person has served at least 90 days'
imprisonment. The 90 days' imprisonment mandated by this
paragraph 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 court may place the person convicted under a house
arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve
the remainder of the minimum sentence only after such person has served 48
consecutive hours' imprisonment.
(2) The court may order that the term of imprisonment imposed pursuant to
paragraph (1) 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.
21-4704, and amendments thereto. The person shall remain imprisoned at the
state facility only while participating in the substance abuse treatment
program designated by
the secretary and shall be returned to
the custody of the sheriff for execution of the balance
of the term of imprisonment upon completion of or the person's discharge from
the substance abuse treatment program. Custody of the person shall be returned
to the sheriff for execution of the sentence imposed in the event the secretary
of corrections determines: (A) That substance abuse treatment resources or the
capacity of the facility designated by the secretary for the incarceration and
treatment of the person is not available; (B) the person fails to meaningfully
participate in the treatment program of the designated facility; (C) the person
is disruptive to the security or operation of the designated facility; or (D)
the medical or mental health condition of the person renders the person
unsuitable for confinement at the designated facility. The determination by the
secretary that the person either is not to be admitted into the designated
facility or is to be transferred from the designated facility is not subject to
review. The sheriff shall be responsible for all transportation expenses to and
from the state correctional facility.
The court shall also require as a condition of parole that such person enter
into
and complete a treatment program for alcohol and drug abuse as provided by
K.S.A. 8-1008, and amendments thereto.
(g) (1) On the fourth or subsequent
conviction of a violation of this section, a person shall be guilty of a
nonperson felony and sentenced to
not less than 90 days nor more
than one
year's imprisonment and fined $2,500. The person convicted
shall not be eligible for release on probation, suspension or reduction of
sentence or parole until the person has served at least 90 days' imprisonment.
The 90 days' imprisonment mandated by this paragraph
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.
(2) The court may order that the term of imprisonment imposed pursuant to
paragraph (1) 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.
21-4704, and amendments thereto. The person shall remain imprisoned at the
state facility only while participating in the substance abuse treatment
program designated by the
secretary and shall be returned to the
custody of the sheriff for execution of the balance
of the term of imprisonment upon completion of or the person's discharge from
the substance abuse treatment program. Custody of the person shall be returned
to the sheriff for execution of the sentence imposed in the event the secretary
of corrections determines: (A) That substance abuse treatment resources or the
capacity of the facility designated by the secretary for the incarceration and
treatment of the person is not available; (B) the person fails to meaningfully
participate in the treatment program of the designated facility; (C) the person
is disruptive to the security or operation of the designated facility; or (D)
the medical or mental health condition of the person renders the person
unsuitable for confinement at the designated facility. The determination by the
secretary that the person either is not to be admitted into the designated
facility or is to be transferred from the designated facility is not subject to
review. The sheriff shall be responsible for all transportation expenses to and
from the state correctional facility.
At the time of the filing of the judgment form or journal entry as required by
K.S.A. 21-4620 or 22-3426, and amendments thereto, the court shall cause a
certified copy to be sent to the officer having the offender in charge. The law
enforcement agency maintaining custody and control of a defendant for
imprisonment shall cause a certified copy of the judgment form or journal entry
to be sent to the secretary of corrections within three business
days of receipt of the judgment form or journal entry from the court and
notify the secretary of corrections when
the term of imprisonment expires and upon expiration of the term of
imprisonment shall deliver the defendant to a location designated by the
secretary.
After the
term of imprisonment imposed by the court, the person shall be placed in the
custody of the secretary of corrections
for a
mandatory one-year period of postrelease supervision, which such period of
postrelease supervision shall not be reduced. During such postrelease
supervision, the person shall be required to participate in an
inpatient or outpatient program for alcohol and drug abuse, including, but
not limited to, an approved aftercare plan or mental health
counseling,
as determined by
the secretary and satisfy conditions imposed by the Kansas parole board as
provided
by K.S.A. 22-3717, and amendments thereto. Any violation of the
conditions of such postrelease supervision may
subject such person to revocation of postrelease supervision pursuant to K.S.A.
75-5217 et seq., and amendments thereto and as otherwise provided by
law.
(h) Any person convicted of violating this section or an ordinance which
prohibits the acts that this section prohibits who had one or
more children under the age of
14 years in the vehicle at the time of the offense shall have such person's
punishment enhanced by one month of imprisonment. This
imprisonment must be
served consecutively to any other minimum mandatory penalty imposed for
a violation of this
section or an ordinance which prohibits the acts that this section prohibits.
Any enhanced penalty imposed shall not exceed the maximum sentence allowable
by law. During the service of the enhanced penalty, the
judge may
order the
person on house arrest, work release or other conditional release.
(i) 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.
(j) 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.
(k) (1) Except as provided in paragraph (5), in addition to any other
penalty which may be imposed upon a
first conviction of a violation of this section, the court
may order that the
convicted person's motor vehicle or vehicles be impounded or immobilized for a
period not to exceed one year and that the
convicted person pay all towing, impoundment and storage fees or other
immobilization
costs.
(2) The court shall not order the impoundment or immobilization of a
motor vehicle driven by a person convicted of a violation of this
section if
the motor vehicle had been stolen or converted at the time it was
driven in violation of this section.
(3) Prior to ordering the impoundment or immobilization of a motor vehicle
or vehicles owned by a person convicted of a violation of this section, the
court
shall consider, but not be limited to, the following:
(A) Whether the impoundment or immobilization of the motor vehicle would
result in the loss
of
employment by the convicted person or a member of such person's family; and
(B) whether the ability of the convicted person or a member of such person's
family to attend school or obtain medical care would be impaired.
(4) Any personal property in a vehicle impounded or immobilized pursuant to
this subsection
may be retrieved prior to or during the period of such impoundment or
immobilization.
(5) As used in this subsection, the convicted person's motor vehicle or
vehicles shall include any vehicle leased by such person. If the lease on the
convicted person's motor vehicle subject to impoundment or immobilization
expires in less than one year from the date of the impoundment or
immobilization, the time of impoundment or immobilization of such vehicle shall
be the amount of time remaining on the lease.
(l) (1) Except as provided in paragraph (3), in addition to any other
penalty which may be imposed upon a second or subsequent conviction of a
violation of this section, the court shall order that each motor vehicle owned
or leased by the convicted person shall either be equipped with an ignition
interlock device or be impounded or immobilized for a period of two years. The
convicted person shall pay all costs associated with the installation,
maintenance and removal of the ignition interlock device and all towing,
impoundment and storage fees or other immobilization costs.
(2) Any personal property in a vehicle impounded or immobilized pursuant to
this subsection may be retrieved prior to or during the period of such
impoundment or immobilization.
(3) As used in this subsection, the convicted person's motor vehicle or
vehicles shall include any vehicle leased by such person. If the lease on the
convicted person's motor vehicle subject to impoundment or immobilization
expires in less than two years from the date of the impoundment or
immobilization, the time of impoundment or immobilization of such vehicle shall
be the amount of time remaining on the lease.
(m) (1) Prior to filing a complaint alleging a violation of this
section, a prosecutor 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.
(2) Prior to filing a complaint alleging a violation of this
section, a prosecutor shall request and shall receive from the
Kansas bureau of investigation central repository all criminal
history record information concerning such person.
(n) The court shall electronically report every
conviction of a violation
of
this section
and every diversion agreement entered into in lieu of further criminal
proceedings or 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.
(o) For the purpose of determining whether a conviction is
a first, second, third, fourth or subsequent conviction in sentencing under
this section:
(1) "Conviction" includes being convicted of a violation of this section or
entering into a diversion agreement in lieu of further criminal proceedings on
a complaint alleging a violation of this section;
(2) "conviction" includes being convicted of a violation of a law of another
state or 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 in a case alleging a violation of such
law, ordinance or resolution;
(3) any convictions
occurring during a person's lifetime shall be taken into account when
determining the sentence to be imposed for a first, second, third, fourth or
subsequent offender;
(4) it is irrelevant whether an offense occurred before or after
conviction for a previous offense; and
(5) 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.
(p) Upon conviction of a person of a violation of this
section or a
violation of a city ordinance or county resolution prohibiting the acts
prohibited by this section, the division, upon receiving a
report of conviction, shall
suspend, restrict or suspend and restrict the person's driving
privileges as provided by K.S.A. 8-1014, and
amendments thereto.
(q) (1) (A) Nothing contained in this section
shall be
construed as
preventing
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. Except as specifically provided
by this subsection, the minimum penalty prescribed by any such
ordinance or resolution shall not be less than the minimum
penalty prescribed by this act 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.
(B) 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.
(C) Any such ordinance or
resolution shall authorize the court to order that
the convicted person pay
restitution to any victim who suffered loss due to the violation for which
the person was convicted.
Except as provided in paragraph (5), any such ordinance or resolution may
require or authorize the court to order
that the convicted
person's motor vehicle or vehicles be impounded or immobilized for a period not
to exceed one year and that
the convicted person pay all towing, impoundment and storage fees or other
immobilization
costs.
(2) The court shall not order the impoundment or immobilization of a
motor vehicle driven by a person convicted of a violation of this
section if
the motor vehicle had been stolen or converted at the time it was
driven in violation of this section.
(3) Prior to ordering the impoundment or immobilization of a motor vehicle
or vehicles owned by a person convicted of a violation of this section, the
court
shall consider, but not be limited to, the following:
(A) Whether the impoundment or immobilization of the motor vehicle would
result in the loss
of
employment by the convicted person or a member of such person's family; and
(B) whether the ability of the convicted person or a member of such person's
family to attend school or obtain medical care would be impaired.
(4) Any personal property in a vehicle impounded or immobilized pursuant to
this subsection
may be retrieved prior to or during the period of such impoundment or
immobilization.
(5) As used in this subsection, the convicted person's motor vehicle or
vehicles shall include any vehicle leased by such person. If the lease on the
convicted person's motor vehicle subject to impoundment or immobilization
expires in less than one year from the date of the impoundment or
immobilization, the time of impoundment or immobilization of such vehicle shall
be the amount of time remaining on the lease.
(r) (1) Upon the filing of a complaint, citation or notice to appear
alleging a person has violated a
city ordinance prohibiting the acts prohibited by this section, and prior to
conviction thereof, a city attorney shall request and shall receive from the
division a record of all
prior convictions obtained against such person for
any violations of any of the motor vehicle laws of this state.
(2) Upon the filing of a complaint, citation or notice to appear alleging a
person has violated a city
ordinance prohibiting the acts prohibited by this section, and prior to
conviction thereof, a city
attorney shall request and shall receive from the Kansas bureau
of investigation central repository all criminal history record
information concerning such person.
(3) If the elements of such ordinance violation are the same as
the elements of a violation of this section that would
constitute, and be punished as, a felony, the city attorney shall
refer the violation to the appropriate county or district
attorney for prosecution.
(s) No plea
bargaining agreement shall be entered into nor shall any judge approve a
plea bargaining agreement entered into for the purpose of permitting a person
charged with a violation of this section, or a violation of any
ordinance of a city or resolution of any county in
this state which prohibits the acts prohibited by this section, to avoid
the mandatory penalties established by this section or by the ordinance.
For the purpose of this subsection, entering into a diversion agreement
pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq.,
and
amendments thereto, shall
not constitute plea bargaining.
(t) 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.
(u) Upon a fourth or subsequent conviction, the judge of
any court in
which any
person is convicted of violating this section, may revoke the person's
license plate or temporary registration certificate of the motor vehicle driven
during the violation of this section for a period of one year. Upon revoking
any license plate or temporary registration certificate pursuant to this
subsection, the court shall require that such license plate or temporary
registration certificate be surrendered to the court.
(v) For the purpose of 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.
(3) "Drug" includes toxic vapors as such term is defined in K.S.A. 2009 Supp.
21-36a12,
and
amendments thereto.
(w) 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 alcoholism and intoxication programs fund and 50% to the
department of corrections alcohol and drug abuse treatment fund, which is
hereby created in the state treasury.
(x) Upon every conviction of a violation of this
section, the court shall
order such person to submit to a pre-sentence alcohol and drug abuse evaluation
pursuant to K.S.A. 8-1008, and amendments thereto. Such pre-sentence evaluation
shall be made available, and shall be considered by the sentencing court.
History: L. 1974, ch. 33, § 8-1567;
L. 1976, ch. 50, § 1;
L. 1982, ch. 144, § 5;
L. 1983, ch. 37, § 2;
L. 1984, ch. 37, § 4;
L. 1984, ch. 39, § 9;
L. 1985, ch. 48, § 9;
L. 1985, ch. 50, § 5;
L. 1988, ch. 48, § 6;
L. 1988, ch. 47, § 17;
L. 1989, ch. 92, § 16;
L. 1990, ch. 44, § 6;
L. 1990, ch. 47, § 3;
L. 1991, ch. 36, § 20;
L. 1992, ch. 298, § 1;
L. 1993, ch. 259, § 8;
L. 1993, ch. 291, § 270;
L. 1994, ch. 291, § 2;
L. 2001, ch. 200, § 14;
L. 2002, ch. 50, § 1;
L. 2002, ch. 166, § 2;
L. 2003, ch. 100, § 1;
L. 2007, ch. 181, § 9;
L. 2008, ch. 170, § 4;
L. 2009, ch. 107, § 5;
L. 2009, ch. 143, § 3; July 1.
Article 15.--UNIFORM ACT REGULATING TRAFFIC; RULES OF THE ROAD
8-1567.Driving under influence of alcohol or drugs;
blood alcohol
concentration; penalties. [See Revisor's Note]
(a) No person shall operate or attempt 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 amendments thereto, is .08
or more;
(2) the alcohol concentration in the person's blood or breath, as
measured within two 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.
(b) No person shall operate or attempt to operate any vehicle within
this state if the person is a habitual user of
any narcotic, hypnotic, somnifacient or stimulating drug.
(c) 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.
(d) Upon a first
conviction of a violation of this section, a person shall
be guilty of a class B, nonperson misdemeanor and 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 $500 nor more than
$1,000. The
person convicted must serve at least 48 consecutive hours' imprisonment
or 100 hours of public service either before or as a condition of any grant
of probation or suspension, reduction
of sentence or parole.
In addition, the court shall enter an order which requires that the person
enroll in and successfully complete an alcohol and drug safety action education
program or treatment program as provided in K.S.A. 8-1008, and amendments
thereto, or both the education and treatment programs.
(e) On a second conviction of a violation of this section, a person shall
be guilty of a class A, nonperson misdemeanor and sentenced to
not less
than 90 days nor more than one year's imprisonment and fined not less than
$1,000 nor more than $1,500. The person
convicted must serve at least five consecutive days'
imprisonment before the person is granted probation, suspension or
reduction of sentence or parole or is otherwise released. The five days'
imprisonment mandated by this subsection may be served
in a work release
program only after such person has served 48 consecutive hours' imprisonment,
provided such work release program requires such person to return to
confinement at the end of each day in the work release program. The court may
place the person convicted under a house arrest program pursuant to K.S.A.
21-4603b, and amendments thereto, to serve the remainder of the minimum
sentence only after such person has served 48 consecutive hours'
imprisonment.
As a condition
of any grant of probation, suspension of sentence or parole or of any other
release, the person shall be required to enter into and complete a
treatment
program for alcohol and drug abuse as provided in K.S.A. 8-1008, and amendments
thereto.
(f) (1) On the third conviction of a violation of
this section,
a person shall be guilty of a nonperson felony and
sentenced to
not less than 90 days nor more than one
year's imprisonment and fined not less than $1,500 nor
more than $2,500.
The person convicted
shall
not be
eligible for release on probation, suspension or reduction of sentence or
parole until the person has served at least 90 days'
imprisonment. The 90 days' imprisonment mandated by this
paragraph 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 court may place the person convicted under a house
arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve
the remainder of the minimum sentence only after such person has served 48
consecutive hours' imprisonment.
(2) The court may order that the term of imprisonment imposed pursuant to
paragraph (1) 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.
21-4704, and amendments thereto. The person shall remain imprisoned at the
state facility only while participating in the substance abuse treatment
program designated by
the secretary and shall be returned to
the custody of the sheriff for execution of the balance
of the term of imprisonment upon completion of or the person's discharge from
the substance abuse treatment program. Custody of the person shall be returned
to the sheriff for execution of the sentence imposed in the event the secretary
of corrections determines: (A) That substance abuse treatment resources or the
capacity of the facility designated by the secretary for the incarceration and
treatment of the person is not available; (B) the person fails to meaningfully
participate in the treatment program of the designated facility; (C) the person
is disruptive to the security or operation of the designated facility; or (D)
the medical or mental health condition of the person renders the person
unsuitable for confinement at the designated facility. The determination by the
secretary that the person either is not to be admitted into the designated
facility or is to be transferred from the designated facility is not subject to
review. The sheriff shall be responsible for all transportation expenses to and
from the state correctional facility.
The court shall also require as a condition of parole that such person enter
into
and complete a treatment program for alcohol and drug abuse as provided by
K.S.A. 8-1008, and amendments thereto.
(g) (1) On the fourth or subsequent
conviction of a violation of this section, a person shall be guilty of a
nonperson felony and sentenced to
not less than 90 days nor more
than one
year's imprisonment and fined $2,500. The person convicted
shall not be eligible for release on probation, suspension or reduction of
sentence or parole until the person has served at least 90 days' imprisonment.
The 90 days' imprisonment mandated by this paragraph
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.
(2) The court may order that the term of imprisonment imposed pursuant to
paragraph (1) 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.
21-4704, and amendments thereto. The person shall remain imprisoned at the
state facility only while participating in the substance abuse treatment
program designated by the
secretary and shall be returned to the
custody of the sheriff for execution of the balance
of the term of imprisonment upon completion of or the person's discharge from
the substance abuse treatment program. Custody of the person shall be returned
to the sheriff for execution of the sentence imposed in the event the secretary
of corrections determines: (A) That substance abuse treatment resources or the
capacity of the facility designated by the secretary for the incarceration and
treatment of the person is not available; (B) the person fails to meaningfully
participate in the treatment program of the designated facility; (C) the person
is disruptive to the security or operation of the designated facility; or (D)
the medical or mental health condition of the person renders the person
unsuitable for confinement at the designated facility. The determination by the
secretary that the person either is not to be admitted into the designated
facility or is to be transferred from the designated facility is not subject to
review. The sheriff shall be responsible for all transportation expenses to and
from the state correctional facility.
At the time of the filing of the judgment form or journal entry as required by
K.S.A. 21-4620 or 22-3426, and amendments thereto, the court shall cause a
certified copy to be sent to the officer having the offender in charge. The law
enforcement agency maintaining custody and control of a defendant for
imprisonment shall cause a certified copy of the judgment form or journal entry
to be sent to the secretary of corrections within three business
days of receipt of the judgment form or journal entry from the court and
notify the secretary of corrections when
the term of imprisonment expires and upon expiration of the term of
imprisonment shall deliver the defendant to a location designated by the
secretary.
After the
term of imprisonment imposed by the court, the person shall be placed in the
custody of the secretary of corrections
for a
mandatory one-year period of postrelease supervision, which such period of
postrelease supervision shall not be reduced. During such postrelease
supervision, the person shall be required to participate in an
inpatient or outpatient program for alcohol and drug abuse, including, but
not limited to, an approved aftercare plan or mental health
counseling,
as determined by
the secretary and satisfy conditions imposed by the Kansas parole board as
provided
by K.S.A. 22-3717, and amendments thereto. Any violation of the
conditions of such postrelease supervision may
subject such person to revocation of postrelease supervision pursuant to K.S.A.
75-5217 et seq., and amendments thereto and as otherwise provided by
law.
(h) Any person convicted of violating this section or an ordinance which
prohibits the acts that this section prohibits who had one or
more children under the age of
14 years in the vehicle at the time of the offense shall have such person's
punishment enhanced by one month of imprisonment. This
imprisonment must be
served consecutively to any other minimum mandatory penalty imposed for
a violation of this
section or an ordinance which prohibits the acts that this section prohibits.
Any enhanced penalty imposed shall not exceed the maximum sentence allowable
by law. During the service of the enhanced penalty, the
judge may
order the
person on house arrest, work release or other conditional release.
(i) 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.
(j) 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.
(k) (1) Except as provided in paragraph (5), in addition to any other
penalty which may be imposed upon a
first conviction of a violation of this section, the court
may order that the
convicted person's motor vehicle or vehicles be impounded or immobilized for a
period not to exceed one year and that the
convicted person pay all towing, impoundment and storage fees or other
immobilization
costs.
(2) The court shall not order the impoundment or immobilization of a
motor vehicle driven by a person convicted of a violation of this
section if
the motor vehicle had been stolen or converted at the time it was
driven in violation of this section.
(3) Prior to ordering the impoundment or immobilization of a motor vehicle
or vehicles owned by a person convicted of a violation of this section, the
court
shall consider, but not be limited to, the following:
(A) Whether the impoundment or immobilization of the motor vehicle would
result in the loss
of
employment by the convicted person or a member of such person's family; and
(B) whether the ability of the convicted person or a member of such person's
family to attend school or obtain medical care would be impaired.
(4) Any personal property in a vehicle impounded or immobilized pursuant to
this subsection
may be retrieved prior to or during the period of such impoundment or
immobilization.
(5) As used in this subsection, the convicted person's motor vehicle or
vehicles shall include any vehicle leased by such person. If the lease on the
convicted person's motor vehicle subject to impoundment or immobilization
expires in less than one year from the date of the impoundment or
immobilization, the time of impoundment or immobilization of such vehicle shall
be the amount of time remaining on the lease.
(l) (1) Except as provided in paragraph (3), in addition to any other
penalty which may be imposed upon a second or subsequent conviction of a
violation of this section, the court shall order that each motor vehicle owned
or leased by the convicted person shall either be equipped with an ignition
interlock device or be impounded or immobilized for a period of two years. The
convicted person shall pay all costs associated with the installation,
maintenance and removal of the ignition interlock device and all towing,
impoundment and storage fees or other immobilization costs.
(2) Any personal property in a vehicle impounded or immobilized pursuant to
this subsection may be retrieved prior to or during the period of such
impoundment or immobilization.
(3) As used in this subsection, the convicted person's motor vehicle or
vehicles shall include any vehicle leased by such person. If the lease on the
convicted person's motor vehicle subject to impoundment or immobilization
expires in less than two years from the date of the impoundment or
immobilization, the time of impoundment or immobilization of such vehicle shall
be the amount of time remaining on the lease.
(m) (1) Prior to filing a complaint alleging a violation of this
section, a prosecutor 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.
(2) Prior to filing a complaint alleging a violation of this
section, a prosecutor shall request and shall receive from the
Kansas bureau of investigation central repository all criminal
history record information concerning such person.
(n) The court shall electronically report every
conviction of a violation
of
this section
and every diversion agreement entered into in lieu of further criminal
proceedings or 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.
(o) For the purpose of determining whether a conviction is
a first, second, third, fourth or subsequent conviction in sentencing under
this section:
(1) "Conviction" includes being convicted of a violation of this section or
entering into a diversion agreement in lieu of further criminal proceedings on
a complaint alleging a violation of this section;
(2) "conviction" includes being convicted of a violation of a law of another
state or 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 in a case alleging a violation of such
law, ordinance or resolution;
(3) any convictions
occurring during a person's lifetime shall be taken into account when
determining the sentence to be imposed for a first, second, third, fourth or
subsequent offender;
(4) it is irrelevant whether an offense occurred before or after
conviction for a previous offense; and
(5) 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.
(p) Upon conviction of a person of a violation of this
section or a
violation of a city ordinance or county resolution prohibiting the acts
prohibited by this section, the division, upon receiving a
report of conviction, shall
suspend, restrict or suspend and restrict the person's driving
privileges as provided by K.S.A. 8-1014, and
amendments thereto.
(q) (1) (A) Nothing contained in this section
shall be
construed as
preventing
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. Except as specifically provided
by this subsection, the minimum penalty prescribed by any such
ordinance or resolution shall not be less than the minimum
penalty prescribed by this act 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.
(B) 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.
(C) Any such ordinance or
resolution shall authorize the court to order that
the convicted person pay
restitution to any victim who suffered loss due to the violation for which
the person was convicted.
Except as provided in paragraph (5), any such ordinance or resolution may
require or authorize the court to order
that the convicted
person's motor vehicle or vehicles be impounded or immobilized for a period not
to exceed one year and that
the convicted person pay all towing, impoundment and storage fees or other
immobilization
costs.
(2) The court shall not order the impoundment or immobilization of a
motor vehicle driven by a person convicted of a violation of this
section if
the motor vehicle had been stolen or converted at the time it was
driven in violation of this section.
(3) Prior to ordering the impoundment or immobilization of a motor vehicle
or vehicles owned by a person convicted of a violation of this section, the
court
shall consider, but not be limited to, the following:
(A) Whether the impoundment or immobilization of the motor vehicle would
result in the loss
of
employment by the convicted person or a member of such person's family; and
(B) whether the ability of the convicted person or a member of such person's
family to attend school or obtain medical care would be impaired.
(4) Any personal property in a vehicle impounded or immobilized pursuant to
this subsection
may be retrieved prior to or during the period of such impoundment or
immobilization.
(5) As used in this subsection, the convicted person's motor vehicle or
vehicles shall include any vehicle leased by such person. If the lease on the
convicted person's motor vehicle subject to impoundment or immobilization
expires in less than one year from the date of the impoundment or
immobilization, the time of impoundment or immobilization of such vehicle shall
be the amount of time remaining on the lease.
(r) (1) Upon the filing of a complaint, citation or notice to appear
alleging a person has violated a
city ordinance prohibiting the acts prohibited by this section, and prior to
conviction thereof, a city attorney shall request and shall receive from the
division a record of all
prior convictions obtained against such person for
any violations of any of the motor vehicle laws of this state.
(2) Upon the filing of a complaint, citation or notice to appear alleging a
person has violated a city
ordinance prohibiting the acts prohibited by this section, and prior to
conviction thereof, a city
attorney shall request and shall receive from the Kansas bureau
of investigation central repository all criminal history record
information concerning such person.
(3) If the elements of such ordinance violation are the same as
the elements of a violation of this section that would
constitute, and be punished as, a felony, the city attorney shall
refer the violation to the appropriate county or district
attorney for prosecution.
(s) No plea
bargaining agreement shall be entered into nor shall any judge approve a
plea bargaining agreement entered into for the purpose of permitting a person
charged with a violation of this section, or a violation of any
ordinance of a city or resolution of any county in
this state which prohibits the acts prohibited by this section, to avoid
the mandatory penalties established by this section or by the ordinance.
For the purpose of this subsection, entering into a diversion agreement
pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq.,
and
amendments thereto, shall
not constitute plea bargaining.
(t) 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.
(u) Upon a fourth or subsequent conviction, the judge of
any court in
which any
person is convicted of violating this section, may revoke the person's
license plate or temporary registration certificate of the motor vehicle driven
during the violation of this section for a period of one year. Upon revoking
any license plate or temporary registration certificate pursuant to this
subsection, the court shall require that such license plate or temporary
registration certificate be surrendered to the court.
(v) For the purpose of 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.
(3) "Drug" includes toxic vapors as such term is defined in K.S.A. 2009 Supp.
21-36a12,
and
amendments thereto.
(w) 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 alcoholism and intoxication programs fund and 50% to the
department of corrections alcohol and drug abuse treatment fund, which is
hereby created in the state treasury.
(x) Upon every conviction of a violation of this
section, the court shall
order such person to submit to a pre-sentence alcohol and drug abuse evaluation
pursuant to K.S.A. 8-1008, and amendments thereto. Such pre-sentence evaluation
shall be made available, and shall be considered by the sentencing court.
History: L. 1974, ch. 33, § 8-1567;
L. 1976, ch. 50, § 1;
L. 1982, ch. 144, § 5;
L. 1983, ch. 37, § 2;
L. 1984, ch. 37, § 4;
L. 1984, ch. 39, § 9;
L. 1985, ch. 48, § 9;
L. 1985, ch. 50, § 5;
L. 1988, ch. 48, § 6;
L. 1988, ch. 47, § 17;
L. 1989, ch. 92, § 16;
L. 1990, ch. 44, § 6;
L. 1990, ch. 47, § 3;
L. 1991, ch. 36, § 20;
L. 1992, ch. 298, § 1;
L. 1993, ch. 259, § 8;
L. 1993, ch. 291, § 270;
L. 1994, ch. 291, § 2;
L. 2001, ch. 200, § 14;
L. 2002, ch. 50, § 1;
L. 2002, ch. 166, § 2;
L. 2003, ch. 100, § 1;
L. 2007, ch. 181, § 9;
L. 2008, ch. 170, § 4;
L. 2009, ch. 107, § 5;
L. 2009, ch. 143, § 3; July 1.
Article 15.--UNIFORM ACT REGULATING TRAFFIC; RULES OF THE ROAD
8-1567.Driving under influence of alcohol or drugs;
blood alcohol
concentration; penalties. [See Revisor's Note]
(a) No person shall operate or attempt 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 amendments thereto, is .08
or more;
(2) the alcohol concentration in the person's blood or breath, as
measured within two 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.
(b) No person shall operate or attempt to operate any vehicle within
this state if the person is a habitual user of
any narcotic, hypnotic, somnifacient or stimulating drug.
(c) 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.
(d) Upon a first
conviction of a violation of this section, a person shall
be guilty of a class B, nonperson misdemeanor and 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 $500 nor more than
$1,000. The
person convicted must serve at least 48 consecutive hours' imprisonment
or 100 hours of public service either before or as a condition of any grant
of probation or suspension, reduction
of sentence or parole.
In addition, the court shall enter an order which requires that the person
enroll in and successfully complete an alcohol and drug safety action education
program or treatment program as provided in K.S.A. 8-1008, and amendments
thereto, or both the education and treatment programs.
(e) On a second conviction of a violation of this section, a person shall
be guilty of a class A, nonperson misdemeanor and sentenced to
not less
than 90 days nor more than one year's imprisonment and fined not less than
$1,000 nor more than $1,500. The person
convicted must serve at least five consecutive days'
imprisonment before the person is granted probation, suspension or
reduction of sentence or parole or is otherwise released. The five days'
imprisonment mandated by this subsection may be served
in a work release
program only after such person has served 48 consecutive hours' imprisonment,
provided such work release program requires such person to return to
confinement at the end of each day in the work release program. The court may
place the person convicted under a house arrest program pursuant to K.S.A.
21-4603b, and amendments thereto, to serve the remainder of the minimum
sentence only after such person has served 48 consecutive hours'
imprisonment.
As a condition
of any grant of probation, suspension of sentence or parole or of any other
release, the person shall be required to enter into and complete a
treatment
program for alcohol and drug abuse as provided in K.S.A. 8-1008, and amendments
thereto.
(f) (1) On the third conviction of a violation of
this section,
a person shall be guilty of a nonperson felony and
sentenced to
not less than 90 days nor more than one
year's imprisonment and fined not less than $1,500 nor
more than $2,500.
The person convicted
shall
not be
eligible for release on probation, suspension or reduction of sentence or
parole until the person has served at least 90 days'
imprisonment. The 90 days' imprisonment mandated by this
paragraph 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 court may place the person convicted under a house
arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve
the remainder of the minimum sentence only after such person has served 48
consecutive hours' imprisonment.
(2) The court may order that the term of imprisonment imposed pursuant to
paragraph (1) 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.
21-4704, and amendments thereto. The person shall remain imprisoned at the
state facility only while participating in the substance abuse treatment
program designated by
the secretary and shall be returned to
the custody of the sheriff for execution of the balance
of the term of imprisonment upon completion of or the person's discharge from
the substance abuse treatment program. Custody of the person shall be returned
to the sheriff for execution of the sentence imposed in the event the secretary
of corrections determines: (A) That substance abuse treatment resources or the
capacity of the facility designated by the secretary for the incarceration and
treatment of the person is not available; (B) the person fails to meaningfully
participate in the treatment program of the designated facility; (C) the person
is disruptive to the security or operation of the designated facility; or (D)
the medical or mental health condition of the person renders the person
unsuitable for confinement at the designated facility. The determination by the
secretary that the person either is not to be admitted into the designated
facility or is to be transferred from the designated facility is not subject to
review. The sheriff shall be responsible for all transportation expenses to and
from the state correctional facility.
The court shall also require as a condition of parole that such person enter
into
and complete a treatment program for alcohol and drug abuse as provided by
K.S.A. 8-1008, and amendments thereto.
(g) (1) On the fourth or subsequent
conviction of a violation of this section, a person shall be guilty of a
nonperson felony and sentenced to
not less than 90 days nor more
than one
year's imprisonment and fined $2,500. The person convicted
shall not be eligible for release on probation, suspension or reduction of
sentence or parole until the person has served at least 90 days' imprisonment.
The 90 days' imprisonment mandated by this paragraph
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.
(2) The court may order that the term of imprisonment imposed pursuant to
paragraph (1) 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.
21-4704, and amendments thereto. The person shall remain imprisoned at the
state facility only while participating in the substance abuse treatment
program designated by the
secretary and shall be returned to the
custody of the sheriff for execution of the balance
of the term of imprisonment upon completion of or the person's discharge from
the substance abuse treatment program. Custody of the person shall be returned
to the sheriff for execution of the sentence imposed in the event the secretary
of corrections determines: (A) That substance abuse treatment resources or the
capacity of the facility designated by the secretary for the incarceration and
treatment of the person is not available; (B) the person fails to meaningfully
participate in the treatment program of the designated facility; (C) the person
is disruptive to the security or operation of the designated facility; or (D)
the medical or mental health condition of the person renders the person
unsuitable for confinement at the designated facility. The determination by the
secretary that the person either is not to be admitted into the designated
facility or is to be transferred from the designated facility is not subject to
review. The sheriff shall be responsible for all transportation expenses to and
from the state correctional facility.
At the time of the filing of the judgment form or journal entry as required by
K.S.A. 21-4620 or 22-3426, and amendments thereto, the court shall cause a
certified copy to be sent to the officer having the offender in charge. The law
enforcement agency maintaining custody and control of a defendant for
imprisonment shall cause a certified copy of the judgment form or journal entry
to be sent to the secretary of corrections within three business
days of receipt of the judgment form or journal entry from the court and
notify the secretary of corrections when
the term of imprisonment expires and upon expiration of the term of
imprisonment shall deliver the defendant to a location designated by the
secretary.
After the
term of imprisonment imposed by the court, the person shall be placed in the
custody of the secretary of corrections
for a
mandatory one-year period of postrelease supervision, which such period of
postrelease supervision shall not be reduced. During such postrelease
supervision, the person shall be required to participate in an
inpatient or outpatient program for alcohol and drug abuse, including, but
not limited to, an approved aftercare plan or mental health
counseling,
as determined by
the secretary and satisfy conditions imposed by the Kansas parole board as
provided
by K.S.A. 22-3717, and amendments thereto. Any violation of the
conditions of such postrelease supervision may
subject such person to revocation of postrelease supervision pursuant to K.S.A.
75-5217 et seq., and amendments thereto and as otherwise provided by
law.
(h) Any person convicted of violating this section or an ordinance which
prohibits the acts that this section prohibits who had one or
more children under the age of
14 years in the vehicle at the time of the offense shall have such person's
punishment enhanced by one month of imprisonment. This
imprisonment must be
served consecutively to any other minimum mandatory penalty imposed for
a violation of this
section or an ordinance which prohibits the acts that this section prohibits.
Any enhanced penalty imposed shall not exceed the maximum sentence allowable
by law. During the service of the enhanced penalty, the
judge may
order the
person on house arrest, work release or other conditional release.
(i) 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.
(j) 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.
(k) (1) Except as provided in paragraph (5), in addition to any other
penalty which may be imposed upon a
first conviction of a violation of this section, the court
may order that the
convicted person's motor vehicle or vehicles be impounded or immobilized for a
period not to exceed one year and that the
convicted person pay all towing, impoundment and storage fees or other
immobilization
costs.
(2) The court shall not order the impoundment or immobilization of a
motor vehicle driven by a person convicted of a violation of this
section if
the motor vehicle had been stolen or converted at the time it was
driven in violation of this section.
(3) Prior to ordering the impoundment or immobilization of a motor vehicle
or vehicles owned by a person convicted of a violation of this section, the
court
shall consider, but not be limited to, the following:
(A) Whether the impoundment or immobilization of the motor vehicle would
result in the loss
of
employment by the convicted person or a member of such person's family; and
(B) whether the ability of the convicted person or a member of such person's
family to attend school or obtain medical care would be impaired.
(4) Any personal property in a vehicle impounded or immobilized pursuant to
this subsection
may be retrieved prior to or during the period of such impoundment or
immobilization.
(5) As used in this subsection, the convicted person's motor vehicle or
vehicles shall include any vehicle leased by such person. If the lease on the
convicted person's motor vehicle subject to impoundment or immobilization
expires in less than one year from the date of the impoundment or
immobilization, the time of impoundment or immobilization of such vehicle shall
be the amount of time remaining on the lease.
(l) (1) Except as provided in paragraph (3), in addition to any other
penalty which may be imposed upon a second or subsequent conviction of a
violation of this section, the court shall order that each motor vehicle owned
or leased by the convicted person shall either be equipped with an ignition
interlock device or be impounded or immobilized for a period of two years. The
convicted person shall pay all costs associated with the installation,
maintenance and removal of the ignition interlock device and all towing,
impoundment and storage fees or other immobilization costs.
(2) Any personal property in a vehicle impounded or immobilized pursuant to
this subsection may be retrieved prior to or during the period of such
impoundment or immobilization.
(3) As used in this subsection, the convicted person's motor vehicle or
vehicles shall include any vehicle leased by such person. If the lease on the
convicted person's motor vehicle subject to impoundment or immobilization
expires in less than two years from the date of the impoundment or
immobilization, the time of impoundment or immobilization of such vehicle shall
be the amount of time remaining on the lease.
(m) (1) Prior to filing a complaint alleging a violation of this
section, a prosecutor 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.
(2) Prior to filing a complaint alleging a violation of this
section, a prosecutor shall request and shall receive from the
Kansas bureau of investigation central repository all criminal
history record information concerning such person.
(n) The court shall electronically report every
conviction of a violation
of
this section
and every diversion agreement entered into in lieu of further criminal
proceedings or 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.
(o) For the purpose of determining whether a conviction is
a first, second, third, fourth or subsequent conviction in sentencing under
this section:
(1) "Conviction" includes being convicted of a violation of this section or
entering into a diversion agreement in lieu of further criminal proceedings on
a complaint alleging a violation of this section;
(2) "conviction" includes being convicted of a violation of a law of another
state or 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 in a case alleging a violation of such
law, ordinance or resolution;
(3) any convictions
occurring during a person's lifetime shall be taken into account when
determining the sentence to be imposed for a first, second, third, fourth or
subsequent offender;
(4) it is irrelevant whether an offense occurred before or after
conviction for a previous offense; and
(5) 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.
(p) Upon conviction of a person of a violation of this
section or a
violation of a city ordinance or county resolution prohibiting the acts
prohibited by this section, the division, upon receiving a
report of conviction, shall
suspend, restrict or suspend and restrict the person's driving
privileges as provided by K.S.A. 8-1014, and
amendments thereto.
(q) (1) (A) Nothing contained in this section
shall be
construed as
preventing
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. Except as specifically provided
by this subsection, the minimum penalty prescribed by any such
ordinance or resolution shall not be less than the minimum
penalty prescribed by this act 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.
(B) 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.
(C) Any such ordinance or
resolution shall authorize the court to order that
the convicted person pay
restitution to any victim who suffered loss due to the violation for which
the person was convicted.
Except as provided in paragraph (5), any such ordinance or resolution may
require or authorize the court to order
that the convicted
person's motor vehicle or vehicles be impounded or immobilized for a period not
to exceed one year and that
the convicted person pay all towing, impoundment and storage fees or other
immobilization
costs.
(2) The court shall not order the impoundment or immobilization of a
motor vehicle driven by a person convicted of a violation of this
section if
the motor vehicle had been stolen or converted at the time it was
driven in violation of this section.
(3) Prior to ordering the impoundment or immobilization of a motor vehicle
or vehicles owned by a person convicted of a violation of this section, the
court
shall consider, but not be limited to, the following:
(A) Whether the impoundment or immobilization of the motor vehicle would
result in the loss
of
employment by the convicted person or a member of such person's family; and
(B) whether the ability of the convicted person or a member of such person's
family to attend school or obtain medical care would be impaired.
(4) Any personal property in a vehicle impounded or immobilized pursuant to
this subsection
may be retrieved prior to or during the period of such impoundment or
immobilization.
(5) As used in this subsection, the convicted person's motor vehicle or
vehicles shall include any vehicle leased by such person. If the lease on the
convicted person's motor vehicle subject to impoundment or immobilization
expires in less than one year from the date of the impoundment or
immobilization, the time of impoundment or immobilization of such vehicle shall
be the amount of time remaining on the lease.
(r) (1) Upon the filing of a complaint, citation or notice to appear
alleging a person has violated a
city ordinance prohibiting the acts prohibited by this section, and prior to
conviction thereof, a city attorney shall request and shall receive from the
division a record of all
prior convictions obtained against such person for
any violations of any of the motor vehicle laws of this state.
(2) Upon the filing of a complaint, citation or notice to appear alleging a
person has violated a city
ordinance prohibiting the acts prohibited by this section, and prior to
conviction thereof, a city
attorney shall request and shall receive from the Kansas bureau
of investigation central repository all criminal history record
information concerning such person.
(3) If the elements of such ordinance violation are the same as
the elements of a violation of this section that would
constitute, and be punished as, a felony, the city attorney shall
refer the violation to the appropriate county or district
attorney for prosecution.
(s) No plea
bargaining agreement shall be entered into nor shall any judge approve a
plea bargaining agreement entered into for the purpose of permitting a person
charged with a violation of this section, or a violation of any
ordinance of a city or resolution of any county in
this state which prohibits the acts prohibited by this section, to avoid
the mandatory penalties established by this section or by the ordinance.
For the purpose of this subsection, entering into a diversion agreement
pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq.,
and
amendments thereto, shall
not constitute plea bargaining.
(t) 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.
(u) Upon a fourth or subsequent conviction, the judge of
any court in
which any
person is convicted of violating this section, may revoke the person's
license plate or temporary registration certificate of the motor vehicle driven
during the violation of this section for a period of one year. Upon revoking
any license plate or temporary registration certificate pursuant to this
subsection, the court shall require that such license plate or temporary
registration certificate be surrendered to the court.
(v) For the purpose of 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.
(3) "Drug" includes toxic vapors as such term is defined in K.S.A. 2009 Supp.
21-36a12,
and
amendments thereto.
(w) 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 alcoholism and intoxication programs fund and 50% to the
department of corrections alcohol and drug abuse treatment fund, which is
hereby created in the state treasury.
(x) Upon every conviction of a violation of this
section, the court shall
order such person to submit to a pre-sentence alcohol and drug abuse evaluation
pursuant to K.S.A. 8-1008, and amendments thereto. Such pre-sentence evaluation
shall be made available, and shall be considered by the sentencing court.
History: L. 1974, ch. 33, § 8-1567;
L. 1976, ch. 50, § 1;
L. 1982, ch. 144, § 5;
L. 1983, ch. 37, § 2;
L. 1984, ch. 37, § 4;
L. 1984, ch. 39, § 9;
L. 1985, ch. 48, § 9;
L. 1985, ch. 50, § 5;
L. 1988, ch. 48, § 6;
L. 1988, ch. 47, § 17;
L. 1989, ch. 92, § 16;
L. 1990, ch. 44, § 6;
L. 1990, ch. 47, § 3;
L. 1991, ch. 36, § 20;
L. 1992, ch. 298, § 1;
L. 1993, ch. 259, § 8;
L. 1993, ch. 291, § 270;
L. 1994, ch. 291, § 2;
L. 2001, ch. 200, § 14;
L. 2002, ch. 50, § 1;
L. 2002, ch. 166, § 2;
L. 2003, ch. 100, § 1;
L. 2007, ch. 181, § 9;
L. 2008, ch. 170, § 4;
L. 2009, ch. 107, § 5;
L. 2009, ch. 143, § 3; July 1.