Session of 1999
         
SENATE BILL No. 178
         
By Committee on Transportation and Tourism
         
2-1
         

  9             AN  ACT concerning alcohol or drug related offenses involving the op-
10             eration of a vehicle; amending K.S.A. 1998 Supp. 8-1002 and repealing
11             the existing section.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             Section  1. K.S.A. 1998 Supp. 8-1002 is hereby amended to read as
15       follows: 8-1002. (a) Whenever a test is requested pursuant to this act and
16       results in either a test failure or test refusal, a law enforcement officer's
17       certification shall be prepared. If the person had been driving a com-
18       mercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments
19       thereto, a separate certification pursuant to K.S.A. 8-2,145 and amend-
20       ments thereto shall be prepared in addition to any certification required
21       by this section. The certification required by this section shall be signed
22       by one or more officers to certify:
23             (1) With regard to a test refusal, that: (A) There existed reasonable
24       grounds to believe the person was operating or attempting to operate a
25       vehicle while under the influence of alcohol or drugs, or both, or to be-
26       lieve that the person had been driving a commercial motor vehicle, as
27       defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol
28       or other drugs in such person's system; (B) the person had been placed
29       under arrest, was in custody or had been involved in a vehicle accident
30       or collision; (C) a law enforcement officer had presented the person with
31       the oral and written notice required by K.S.A. 8-1001, and amendments
32       thereto; and (D) the person refused to submit to and complete a test as
33       requested by a law enforcement officer.
34             (2) With regard to a test failure, that: (A) There existed reasonable
35       grounds to believe the person was operating a vehicle while under the
36       influence of alcohol or drugs, or both, or to believe that the person had
37       been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128,
38       and amendments thereto, while having alcohol or other drugs in such
39       person's system; (B) the person had been placed under arrest, was in
40       custody or had been involved in a vehicle accident or collision; (C) a law
41       enforcement officer had presented the person with the oral and written
42       notice required by K.S.A. 8-1001, and amendments thereto; and (D) the
43       result of the test showed that the person had an alcohol concentration of
44       .08 or greater in such person's blood or breath.
45             (3) With regard to failure of a breath test, in addition to those matters
46       required to be certified under subsection (a)(2), that: (A) The testing
47       equipment used was certified by the Kansas department of health and
48       environment; (B) the testing procedures used were in accordance with
49       the requirements set out by the Kansas department of health and envi-
50       ronment; and (C) the person who operated the testing equipment was
51       certified by the Kansas department of health and environment to operate
52       such equipment.
53             (b) For purposes of this section, certification shall be complete upon
54       signing, and no additional acts of oath, affirmation, acknowledgment or
55       proof of execution shall be required. The signed certification or a copy
56       or photostatic reproduction thereof shall be admissible in evidence in all
57       proceedings brought pursuant to this act, and receipt of any such certi-
58       fication, copy or reproduction shall accord the department authority to
59       proceed as set forth herein. Any person who signs a certification submit-
60       ted to the division knowing it contains a false statement is guilty of a class
61       B nonperson misdemeanor.
62             (c) When the officer directing administration of the testing deter-
63       mines that a person has refused a test and the criteria of subsection (a)(1)
64       have been met or determines that a person has failed a test and the criteria
65       of subsection (a)(2) have been met, the officer shall serve upon the person
66       notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and
67       amendments thereto. If the determination is made while the person is
68       still in custody, service shall be made in person by the officer on behalf
69       of the division of vehicles. In cases where a test failure is established by
70       a subsequent analysis of a breath, blood or urine sample, the officer shall
71       serve notice of such suspension in person or by another designated officer
72       or by mailing the notice to the person at the address provided at the time
73       of the test.
74             (d) In addition to the information required by subsection (a), the law
75       enforcement officer's certification and notice of suspension shall contain
76       the following information: (1) The person's name, driver's license number
77       and current address; (2) the reason and statutory grounds for the suspen-
78       sion; (3) the date notice is being served and a statement that the effective
79       date of the suspension shall be the 30th calendar day after the date of
80       service; (4) the right of the person to request an administrative hearing;
81       and (5) the procedure the person must follow to request an administrative
82       hearing. The law enforcement officer's certification and notice of suspen-
83       sion shall also inform the person that all correspondence will be mailed
84       to the person at the address contained in the law enforcement officer's
85       certification and notice of suspension unless the person notifies the di-
86       vision in writing of a different address or change of address. The address
87       provided will be considered a change of address for purposes of K.S.A.
88       8-248, and amendments thereto, if the address furnished is different from
89       that on file with the division.
90             (e) If a person refuses a test or if a person is still in custody when it
91       is determined that the person has failed a test, the officer shall take any
92       license in the possession of the person and, if the license is not expired,
93       suspended, revoked or canceled, shall issue a temporary license effective
94       until the 30th calendar day after the date of service set out in the law
95       enforcement officer's certification and notice of suspension. If the test
96       failure is established by a subsequent analysis of a breath or blood sample,
97       the temporary license shall be served together with the copy of the law
98       enforcement officer's certification and notice of suspension. A temporary
99       license issued pursuant to this subsection shall bear the same restrictions
100       and limitations as the license for which it was exchanged. Within five days
101       after the date of service of a copy of the law enforcement officer's certi-
102       fication and notice of suspension the officer's certification and notice of
103       suspension, along with any licenses taken, shall be forwarded to the
104       division.
105             (f) Upon receipt of the law enforcement officer's certification, the
106       division shall review the certification to determine that it meets the
107       requirements of subsection (a). Upon so determining, the division shall
108       proceed to suspend the person's driving privileges in accordance with the
109       notice of suspension previously served. If the requirements of subsection
110       (a) are not met, the division shall dismiss the administrative proceeding
111       and return any license surrendered by the person.
112             (g) If the person mails a written request which is postmarked within
113       10 days after service of the notice, if by personal service, or 13 days after
114       service, if by mail, the division shall schedule a hearing in the county
115       where the alleged violation occurred, or in a county adjacent thereto. The
116       licensee may request that subpoenas be issued in accordance with the
117       notice provided pursuant to subsection (d). Any request made by the
118       licensee to subpoena witnesses must be made in writing at the time the
119       hearing is requested and must include the name and current address of
120       such witnesses and, except for the law enforcement officer or officers
121       certifying refusal or failure, a statement of how the testimony of such
122       witness is relevant. Upon receiving a timely request for a hearing, the
123       division shall mail to the person notice of the time, date and place of
124       hearing in accordance with subsection (l) and extend the person's tem-
125       porary driving privileges until the date set for the hearing by the division.
126             (h)  (1) If the officer certifies that the person refused the test, the
127       scope of the hearing shall be limited to whether: (A) A law enforcement
128       officer had reasonable grounds to believe the person was operating or
129       attempting to operate a vehicle while under the influence of alcohol or
130       drugs, or both, or to believe that the person had been driving a com-
131       mercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments
132       thereto, while having alcohol or other drugs in such person's system; (B)
133       the person was in custody or arrested for an alcohol or drug related of-
134       fense or was involved in a vehicle accident or collision resulting in prop-
135       erty damage, personal injury or death; (C) a law enforcement officer had
136       presented the person with the oral and written notice required by K.S.A.
137       8-1001, and amendments thereto; and (D) the person refused to submit
138       to and complete a test as requested by a law enforcement officer.
139             (2) If the officer certifies that the person failed the test, the scope of
140       the hearing shall be limited to whether: (A) A law enforcement officer
141       had reasonable grounds to believe the person was operating a vehicle
142       while under the influence of alcohol or drugs, or both, or to believe that
143       the person had been driving a commercial motor vehicle, as defined in
144       K.S.A. 8-2,128, and amendments thereto, while having alcohol or other
145       drugs in such person's system; (B) the person was in custody or arrested
146       for an alcohol or drug related offense or was involved in a vehicle accident
147       or collision resulting in property damage, personal injury or death; (C) a
148       law enforcement officer had presented the person with the oral and writ-
149       ten notice required by K.S.A. 8-1001, and amendments thereto; (D) the
150       testing equipment used was reliable; (E) the person who operated the
151       testing equipment was qualified; (F) the testing procedures used were
152       reliable; (G) the test result determined that the person had an alcohol
153       concentration of .08 or greater in such person's blood or breath; and (H)
154       the person was operating a vehicle.
155             (i) At a hearing pursuant to this section, or upon court review of an
156       order entered at such a hearing, an affidavit of the custodian of records
157       at the Kansas department of health and environment stating that the
158       breath testing device was certified and the operator of such device was
159       certified on the date of the test shall be admissible into evidence in the
160       same manner and with the same force and effect as if the certifying officer
161       or employee of the Kansas department of health and environment had
162       testified in person. Such affidavit shall be admitted to prove such relia-
163       bility without further foundation requirement. A certified operator of a
164       breath testing device shall be competent to testify regarding the proper
165       procedures to be used in conducting the test.
166             (j) At a hearing pursuant to this section, or upon court review of an
167       order entered at such hearing, in which the report of blood test results
168       have been prepared by the Kansas bureau of investigation or other fo-
169       rensic laboratory of a state or local law enforcement agency are to be
170       introduced as evidence, the report, or a copy of the report, of the findings
171       of the forensic examiner shall be admissible into evidence in the same
172       manner and with the same force and effect as if the forensic examiner
173       who performed such examination, analysis, comparison or identification
174       and prepared the report thereon had testified in person.
175             (k) If no timely request for hearing is made, the suspension period
176       imposed pursuant to this section shall begin upon the expiration of the
177       temporary license granted under subsection (e). If a timely request for
178       hearing is made, the hearing shall be held within 30 days of the date the
179       request for hearing is received by the division, except that failure to hold
180       such hearing within 30 days shall not be cause for dismissal absent a
181       showing of prejudice. At the hearing, the director or the representative
182       of the director, shall either affirm the order of suspension or suspension
183       and restriction or dismiss the administrative action. If the division is un-
184       able to hold a hearing within 30 days of the date upon which the request
185       for hearing is received, the division shall extend the person's temporary
186       driving privileges until the date set for the hearing by the division. No
187       extension of temporary driving privileges shall be issued for continuances
188       requested by or on behalf of the licensee. If the person whose privileges
189       are suspended is a nonresident licensee, the license of the person shall
190       be forwarded to the appropriate licensing authority in the person's state
191       of residence if the result at the hearing is adverse to such person or if no
192       timely request for a hearing is received.
193             (l) All notices affirming or canceling a suspension under this section,
194       all notices of a hearing held under this section and all issuances of tem-
195       porary driving privileges pursuant to subsection (k) shall be sent by first-
196       class mail and a U.S. post office certificate of mailing shall be obtained
197       therefor. All notices so mailed shall be deemed received three days after
198       mailing.
199             (m) The division shall prepare and distribute forms for use by law
200       enforcement officers in giving the notice required by this section.
201             (n) This section and the applicable provisions contained in subsec-
202       tions (d) and (e) of K.S.A. 8-255 and amendments thereto constitute the
203       administrative procedures to be used for all administrative hearings held
204       under this act. To the extent that this section and any other provision of
205       law conflicts, this section prevails.
206             (o) The provisions of K.S.A. 60-206 and amendments thereto regard-
207       ing the computation of time shall not be applicable in determining the
208       effective date of suspension set out in subsection (d) or the time for
209       requesting an administrative hearing set out in subsection (g). "Calendar
210       day" when used in this section shall mean that every day shall be included
211       in computations of time whether a week day, Saturday, Sunday or holiday. 
212       Sec.  2. K.S.A. 1998 Supp. 8-1002 is hereby repealed.
213        Sec.  3. This act shall take effect and be in force from and after its
214       publication in the statute book.