The 2018 session was filled with drama. School finance dominated the headlines from the opening gavel but many other less controversial topics were proposed, debated and ultimately passed. The Kansas Legislature introduced 462 Senate bills compared to 799 House bills. Together, the chambers proposed 45 concurrent resolutions (30 by the House/15 by the Senate). They also discussed 158 simple resolutions with the Senate outpacing the House 95 to 63 respectively.
To date, 131 bills have passed into law. Most of these bills were stand-alone proposals that worked their way thru the legislative process without much political tinkering, but there are also several bundled bills that need to be unpacked to determine what was signed into law.
I will highlight these bills over the next several weeks, so you can better understand how the law has changed.
Let’s begin with House Sub for SB 374 – Driving Under the Influence
House Sub. for SB 374 amends law concerning driving under the influence of alcohol, drugs, or both (DUI). Specifically, the bill amends statutes governing the crimes of operating or attempting to operate a commercial motor vehicle under the influence (commercial DUI); implied consent; and tests of blood, breath, urine, or other bodily substance. The bill also repeals the crime of test refusal.
Legislative Intent - The bill states the Legislature’s intent regarding comparability of an out-of-jurisdiction offense to a Kansas offense shall be liberally construed to allow comparable offenses, (regardless of whether the elements are identical to or narrower than the corresponding Kansas offense), for the purposes of determining a person’s criminal history. It also indicates the Legislature intends to include—but does not limit such offenses to—convictions under specified statutes in Missouri, Oklahoma, Colorado, and Nebraska, as well as a Wichita municipal ordinance.
Commercial DUI - The bill amends language in the commercial DUI implied consent statute to state that a person who drives a commercial motor vehicle “consents” to take a test or tests of that person’s blood, breath, urine, or other bodily substance. Current law states a person is “deemed to have given consent” to tests of blood, breath, or urine. The bill amends the commercial DUI statute to specify that a person commits the crime if the person commits an offense “otherwise comparable” to DUI, as defined in Kansas law.
Commercial DUI and DUI Changes - The bill amends provisions in the commercial DUI and DUI statutes concerning supervision upon release from imprisonment. If an offender for whom a warrant has been issued by the court alleging a violation of supervision cannot be found in order to serve the warrant, that person will be considered a fugitive from. If it is found the offender has violated the provisions of this supervision, the court determines whether the time from the issuing of the warrant to the date of the court’s determination of an alleged violation, or any part of it, is to be counted as time served on supervision. Further, the bill allows the term of supervision to be extended at the court’s discretion beyond one year. Any violation of the conditions of such extended term of supervision may subject such person to the revocation of supervision and imprisonment in jail of up to the remainder of the original sentence, not the term of the extended supervision. Within both statutes, the bill amends the one-month imprisonment enhancement for convicted persons who had one or more children under the age of 14 in the vehicle at the time of the offense. The bill specifies the enhancement applies to “any person 18 years of age or older” when one or more children under the age of 18 are in the vehicle at the time of the offense.
DUI Implied Consent - The bill amends language in the DUI implied consent statute to state that a person who operates or attempts to operate a vehicle “may be requested” to submit to one or more tests of the person’s blood, breath, urine, or other bodily substance. The bill removes language stating a dead or unconscious person shall be deemed not to have withdrawn consent. The bill adds language requiring the test to be administered at the direction of a law enforcement officer, and the law enforcement officer determines which type of test is to be conducted or requested. This replaces language requiring a law enforcement officer to request the person to submit to testing after providing required notice (described below) and to select the test or tests to be completed. The bill removes language requiring law enforcement to request a person to submit to a test deemed consented to if at the time of the request the officer has reasonable grounds to believe the person was DUI. Instead, the bill adds language stating one or more tests may be required of a person when, at the time of the request, a law enforcement officer has probable cause to believe the person has committed the crime of DUI. The bill also replaces “reasonable grounds” with “probable cause” elsewhere in the bill to reflect this change in the required standard.
The bill also revises language in this subsection to allow a test when a person has been involved in a motor vehicle accident or collision resulting in personal injury or death. This new language replaces provisions that distinguish between personal injury and serious injury or death when the operator may be cited for any traffic offense. The bill removes a definition for “serious injury” and other references to these provisions to reflect this change.
The bill removes “accident” from language allowing a law enforcement officer directing administration of a test to act on the basis of the collective information available to law enforcement officers involved in the investigation or arrest.
DUI Testing Notice - When Requesting a Test and Exceptions. The bill removes provisions governing the oral and written notice required to be given to a person when requesting a test or tests of blood, breath, urine, or other bodily substance. Instead, the bill adds two new subsections governing notice for tests of breath or other bodily substance other than blood or urine and for tests of blood and urine. The notice for tests of breath or other bodily substance other than blood or urine states the following: there is no right to consult with an attorney regarding whether to submit to testing, but, after the completion of the testing, the person may request and has the right to consult with an attorney and may secure additional testing; if the person refuses to submit to and complete the test or tests, or if the person fails a test, the person’s driving privileges will be suspended for a period of at least 30 days and up to a year; refusal to submit to testing may be used against the person at any trial or hearing on a charge arising out of DUI; and the results of the testing may be used against the person at any trial or hearing on a DUI charge. The notice for tests of blood or urine states the following: if the person refuses to submit to and complete the test or tests, or if the person fails a test, the person’s driving privileges will be suspended for a period of at least 30 days and up to a year; the results of the testing may be used against the person at any trial or hearing on a DUI charge; and after the completion of the testing, the person may request and has the right to consult with an attorney and may secure additional testing. The bill states nothing in this section is to be construed to limit the right of a law enforcement officer to conduct any search of a person’s breath or other bodily substance, other than blood or urine, incident to a lawful arrest pursuant to the U.S. Constitution, with or without providing the person the notice outlined above for requesting a test of breath or other bodily substance, other than blood or urine, nor limit the admissibility at any trial or hearing of alcohol or drug concentration testing results obtained pursuant to such a search. Additionally, the bill states nothing in this section is to be construed to limit the right of a law enforcement officer to conduct or obtain a blood or urine test of a person pursuant to a warrant under the Kansas Code of Criminal Procedure, the U.S. Constitution, or a judicially recognized exception to the search warrant requirement, with or without providing the person the notice outlined above for requesting a test of blood or urine, nor limit the admissibility at any trial or hearing of alcohol or drug concentration testing results obtained pursuant to such a search. Similarly, the bill states nothing in this section is to be construed to limit the admissibility at trial of test results obtained pursuant to a judicially recognized exception to the warrant requirement.
The bill amends a subsection stating no test results shall be suppressed because of technical irregularities in the consent or notice required. Instead, the bill states no test results shall be suppressed because of irregularities not affecting the substantial rights of the accused in the consent or notice authorized. The bill replaces notice “required” with notice “authorized” elsewhere in the bill consistent with this change.
The bill states failure to provide any or all notice is not an issue or defense in any action other than an administrative action regarding the subject’s driving privileges.
Immunity of Persons and Entities Involved in Testing - The bill adds paramedics to and adds “advanced” to the term “emergency medical technicians” in the list of persons and entities who have immunity for participating in good faith in the obtaining, withdrawal, collection, or testing of blood, breath, urine, or other bodily substance under specified circumstances. The bill adds “as otherwise authorized by law” to the circumstances under which this immunity applies.
This summary of House Sub for SB 374 was drafted by the Kansas Legislative Research Department. It can be found in Summary of Legislation PDF - http://www.kslegresearch.org/KLRD-web/Publications/SummaryofLegislation/PreliminarySummaries/2018-preliminary-summary-supp-II.pdf