Session of 1999
SENATE BILL No. 363
An Act concerning driving under the
influence of alcohol or drugs; relating to required
notices; amending K.S.A. 1998 Supp. 8-1001 and
8-1567a, as amended by section 19 of
1999 Senate Bill No. 51 and repealing the
existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 1998 Supp. 8-1001
is hereby amended to read as
follows: 8-1001. (a) Any person who operates or attempts to operate
a
vehicle within this state is deemed to have given consent, subject
to the
provisions of this act, to submit to one or more tests of the
person's blood,
breath, urine or other bodily substance to determine the presence
of
alcohol or drugs. The testing deemed consented to herein shall
include
all quantitative and qualitative tests for alcohol and drugs. A
person who
is dead or unconscious shall be deemed not to have withdrawn the
per-
son's consent to such test or tests, which shall be administered in
the
manner provided by this section.
(b) A law enforcement officer shall
request a person to submit to a
test or tests deemed consented to under subsection (a) if the
officer has
reasonable grounds to believe the person was operating or
attempting to
operate a vehicle while under the influence of alcohol or drugs, or
both,
or to believe that the person was driving a commercial motor
vehicle, as
defined in K.S.A. 8-2,128, and amendments thereto, while having
alcohol
or other drugs in such person's system; and one of the following
condi-
tions exists: (1) The person has been arrested or otherwise taken
into
custody for any offense involving operation or attempted operation
of a
vehicle while under the influence of alcohol or drugs, or both, or
involving
driving a commercial motor vehicle, as defined in K.S.A. 8-2,128,
and
amendments thereto, while having alcohol or other drugs in such
person's
system, in violation of a state statute or a city ordinance; or (2)
the person
has been involved in a vehicle accident or collision resulting in
property
damage, personal injury or death. The law enforcement officer
directing
administration of the test or tests may act on personal knowledge
or on
the basis of the collective information available to law
enforcement offi-
cers involved in the accident investigation or arrest.
(c) If a law enforcement officer requests
a person to submit to a test
of blood under this section, the withdrawal of blood at the
direction of
the officer may be performed only by: (1) A person licensed to
practice
medicine and surgery or a person acting under the supervision of
any
such licensed person; (2) a registered nurse or a licensed
practical nurse;
or (3) any qualified medical technician, including, but not limited
to, an
emergency medical technician-intermediate or mobile intensive
care
technician, as those terms are defined in K.S.A. 65-6112, and
amend-
ments thereto, or a phlebotomist. When presented with a written
state-
ment by a law enforcement officer directing blood to be withdrawn
from
a person who has tentatively agreed to allow the withdrawal of
blood
under this section, the person authorized herein to withdraw blood
and
the medical care facility where blood is withdrawn may rely on such
a
statement as evidence that the person has consented to the medical
pro-
cedure used and shall not require the person to sign any additional
con-
sent or waiver form. In such a case, the person authorized to
withdraw
blood and the medical care facility shall not be liable in any
action alleging
lack of consent or lack of informed consent. No person authorized
by this
subsection to withdraw blood, nor any person assisting in the
performance
of a blood test nor any medical care facility where blood is
withdrawn or
tested that has been directed by any law enforcement officer to
withdraw
or test blood, shall be liable in any civil or criminal action when
the act
is performed in a reasonable manner according to generally
accepted
medical practices in the community where performed.
(d) If there are reasonable grounds to
believe that there is impair-
ment by a drug which is not subject to detection by the blood or
breath
test used, a urine test may be required. If a law enforcement
officer
requests a person to submit to a test of urine under this section,
the
collection of the urine sample shall be supervised by persons of
the same
sex as the person being tested and shall be conducted out of the
view of
any person other than the persons supervising the collection of the
sample
and the person being tested, unless the right to privacy is waived
by the
person being tested. The results of qualitative testing for drug
presence
shall be admissible in evidence and questions of accuracy or
reliability
shall go to the weight rather than the admissibility of the
evidence.
(e) No law enforcement officer who is
acting in accordance with this
section shall be liable in any civil or criminal proceeding
involving the
action.
(f) (1) Before a test or tests are
administered under this section, the
person shall be given oral and written notice that: (A) Kansas law
requires
the person to submit to and complete one or more tests of breath,
blood
or urine to determine if the person is under the influence of
alcohol or
drugs, or both; (B) the opportunity to consent to or refuse a test
is not a
constitutional right; (C) there is no constitutional right to
consult with an
attorney regarding whether to submit to testing; (D) if the person
refuses
to submit to and complete any test of breath, blood or urine
hereafter
requested by a law enforcement officer, the person's driving
privileges
will be suspended for at least one year; (E) if the person submits
to and
completes the test or tests and the test results show an alcohol
concen-
tration of .08 or greater, the person's driving privileges will be
suspended
for at least 30 days; (F) if the person refuses a test or the test
results show
an alcohol concentration of .08 or greater and if, within the past
five years,
the person has been convicted or granted diversion on a charge of
driving
under the influence of alcohol or drugs, or both, or a related
offense or
has refused or failed a test, the person's driving privileges will
be sus-
pended for at least one year; (G) if the person is less than 21
years of age
at the time of the test request and submits to and completes the
tests and
the test results show an alcohol concentration of .08 or
greater, the per-
son's driving privileges will be suspended up to one year;
(H) refusal to
submit to testing may be used against the person at any trial on a
charge
arising out of the operation or attempted operation of a vehicle
while
under the influence of alcohol or drugs, or both;
(H) (I) the results of the
testing may be used against the person at any trial on a charge
arising out
of the operation or attempted operation of a vehicle while under
the
influence of alcohol or drugs, or both; and (I)
(J) after the completion of
the testing, the person has the right to consult with an attorney
and may
secure additional testing, which, if desired, should be done as
soon as
possible and is customarily available from medical care facilities
and phy-
sicians. If a law enforcement officer has reasonable grounds to
believe
that the person has been driving a commercial motor vehicle, as
defined
in K.S.A. 8-2,128, and amendments thereto, while having alcohol or
other
drugs in such person's system, the person must also be provided the
oral
and written notice pursuant to K.S.A. 8-2,145 and amendments
thereto.
Any failure to give the notices required by K.S.A. 8-2,145 and
amend-
ments thereto shall not invalidate any action taken as a result of
the
requirements of this section. After giving the foregoing
information, a law
enforcement officer shall request the person to submit to testing.
The
selection of the test or tests shall be made by the officer. If the
person
refuses to submit to and complete a test as requested pursuant to
this
section, additional testing shall not be given unless the
certifying officer
has probable cause to believe that the person, while under the
influence
of alcohol or drugs, or both, has operated a vehicle in such a
manner as
to have caused the death of or serious injury to another person. As
used
in this section, the officer shall have probable cause to believe
that the
person operated a vehicle while under the influence of alcohol or
drugs,
or both, if the vehicle was operated by such person in such a
manner as
to have caused the death of or serious injury to another person. In
such
event, such test or tests may be made pursuant to a search warrant
issued
under the authority of K.S.A. 22-2502, and amendments thereto, or
with-
out a search warrant under the authority of K.S.A. 22-2501, and
amend-
ments thereto. If the test results show a blood or breath alcohol
concen-
tration of .08 or greater, the person's driving privileges shall be
subject
to suspension, or suspension and restriction, as provided in K.S.A.
8-1002
and 8-1014, and amendments thereto. The person's refusal shall be
ad-
missible in evidence against the person at any trial on a charge
arising out
of the alleged operation or attempted operation of a vehicle while
under
the influence of alcohol or drugs, or both. If a law enforcement
officer
had reasonable grounds to believe the person had been driving a
com-
mercial motor vehicle, as defined in K.S.A. 8-2,128, and
amendments
thereto, and the test results show a blood or breath alcohol
concentration
of .04 or greater, the person shall be disqualified from driving a
com-
mercial motor vehicle, pursuant to K.S.A. 8-2,142, and
amendments
thereto. If a law enforcement officer had reasonable grounds to
believe
the person had been driving a commercial motor vehicle, as defined
in
K.S.A. 8-2,128, and amendments thereto, and the test results show
a
blood or breath alcohol concentration of .08 or greater, or the
person
refuses a test, the person's driving privileges shall be subject to
suspen-
sion, or suspension and restriction, pursuant to this section, in
addition
to being disqualified from driving a commercial motor vehicle
pursuant
to K.S.A. 8-2,142, and amendments thereto.
(2) Failure of a person to provide an
adequate breath sample or sam-
ples as directed shall constitute a refusal unless the person shows
that the
failure was due to physical inability caused by a medical condition
unre-
lated to any ingested alcohol or drugs.
(3) It shall not be a defense that the
person did not understand the
written or oral notice required by this section.
(4) No test shall be suppressed because
of technical irregularities in
the consent or notice pursuant to K.S.A. 8-2,145, and
amendments
thereto.
(g) Nothing in this section shall be
construed to limit the admissibility
at any trial of alcohol or drug concentration testing results
obtained pur-
suant to a search warrant.
(h) Upon the request of any person
submitting to testing under this
section, a report of the results of the testing shall be made
available to
such person.
(i) This act is remedial law and shall be
liberally construed to promote
public health, safety and welfare.
Sec. 2. K.S.A. 1998 Supp. 8-1567a,
as amended by section 19 of 1999
Senate Bill No. 51, is hereby amended to read as follows: 8-1567a.
(a) It
shall be unlawful for any person less than 21 years of age to
operate or
attempt to operate a vehicle in this state with a breath or blood
alcohol
content of .02 or greater.
(b) Whenever a law enforcement officer
determines that a breath or
blood alcohol test is to be required of a person less than 21 years
of age
pursuant to K.S.A. 8-1001 or K.S.A. 8-2,142 and amendments thereto,
in
addition to any other notices required by law, the law enforcement
officer
shall provide written and oral notice that: (1) It is unlawful for
any person
less than 21 years of age to operate or attempt to operate a
vehicle in this
state with a breath or blood alcohol content of .02 or greater; and
(2) if
the person is less than 21 years of age at the time of the test
request and
submits to and completes the test or tests and the test results
show an
alcohol concentration of .02 or greater, the person's driving
privileges will
be suspended for at least 30 days upon the first occurrence
and for at
least 90 days upon a second or subsequent
occurrence one year.
(c) Any suspension and restriction of
driving privileges pursuant to
this section shall be in addition to any disqualification from
driving a
commercial motor vehicle pursuant to K.S.A. 8-2,142 and
amendments
thereto.
(d) Whenever a breath or blood alcohol
test is requested pursuant to
K.S.A. 8-1001 and amendments thereto, from a person less than 21
years
of age, and results in a test result of .02 or greater, but less
than .08, a
law enforcement officer's certification under this section shall be
pre-
pared. The certification required by this section shall be signed
by one
or more officers to certify that:
(1) (A) There existed reasonable
grounds to believe the person was
operating a vehicle while under the influence of alcohol or drugs,
or both,
or to believe that the person had been driving a commercial motor
ve-
hicle, as defined in K.S.A. 8-2,128 and amendments thereto, while
having
alcohol or other drugs in such person's system; (B) the person had
been
placed under arrest, was in custody or had been involved in a
vehicle
accident or collision; (C) a law enforcement officer had presented
the
person with the oral and written notice required by K.S.A. 8-1001
and
amendments thereto, and the oral and written notice required by
this
section; (D) that the person was less than 21 years of age at the
time of
the test request; and (E) the result of the test showed that the
person
had an alcohol concentration of .02 or greater in such person's
blood or
breath.
(2) With regard to a breath test, in
addition to those matters required
to be certified under subsection (d)(1), that: (A) The testing
equipment
used was certified by the Kansas department of health and
environment;
(B) the testing procedures used were in accordance with the
require-
ments set out by the Kansas department of health and environment;
and
(C) the person who operated the testing equipment was certified by
the
Kansas department of health and environment to operate such
equip-
ment.
(e) If a hearing is requested as a result
of a law enforcement officer's
certification under this section, the scope of the hearing shall be
limited
to whether: (1) A law enforcement officer had reasonable grounds
to
believe the person was operating a vehicle while under the
influence of
alcohol or drugs, or both, or to believe that the person had been
driving
a commercial motor vehicle, as defined in K.S.A. 8-2,128 and
amend-
ments thereto, while having alcohol or other drugs in such person's
sys-
tem; (2) the person was in custody or arrested for an alcohol or
drug
related offense or was involved in a motor vehicle accident or
collision
resulting in property damage, personal injury or death; (3) a law
enforce-
ment officer had presented the person with the oral and written
notice
required by K.S.A. 8-1001 and amendments thereto, and the oral
and
written notice required by this section; (4) the testing equipment
used
was reliable; (5) the person who operated the testing equipment
was
qualified; (6) the testing procedures used were reliable; (7) the
test result
determined that the person had an alcohol concentration of .02 or
greater
in such person's blood or breath; (8) the person was operating a
vehicle;
and (9) the person was less than 21 years of age at the time a test
was
requested.
(f) If a person less than 21 years of age
submits to a breath or blood
alcohol test requested pursuant to K.S.A. 8-1001 or K.S.A. 8-2,142
and
amendments thereto, and produces a test result of .02 or greater,
but less
than .08, the person's driving privileges shall be suspended for
one year.
(g) Except where there is a conflict
between this section and K.S.A.
8-1001 and 8-1002 and amendments thereto, the provisions of K.S.A.
8-
1001 and 8-1002 and amendments thereto, shall be applicable to
pro-
ceedings under this section.
(h) Any determination under this section
that a person less than 21
years of age had a test result of .02 or greater, but less than
.08, and any
resulting administrative action upon the person's driving
privileges, upon
the first occurrence of such test result and administrative action,
shall not
be considered by any insurance company in determining the rate
charged
for any automobile liability insurance policy or whether to cancel
any such
policy under the provisions of subsection (4)(a) of K.S.A. 40-277
and
amendments thereto.
Sec. 3. K.S.A. 1998 Supp. 8-1001
and 8-1567a, as amended by sec-
tion 19 of 1999 Senate Bill No. 51 are hereby repealed.
Sec. 4. This act shall take effect
and be in force from and after its
publication in the statute book.
I hereby certify that the above BILL originated in the
SENATE, and passed that body
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Passed the HOUSE ______________________________
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APPROVED ______________________________
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