As Amended by House Committee

         
As Amended by Senate Committee
         
Session of 1999
         
SENATE BILL No. 4
         
By Special Committee on Judiciary
         
12-15
         

11             AN  ACT concerning criminal procedure; relating to crimes, punish-
12             ment and criminal procedure; expungement; arrest records;
13             driver's license restrictions for alcohol and drug-related of-
14             fenses; amending K.S.A. 1998 Supp. 8-1014, 8-1015, 8-1016, 12-
15             4516 and, 12-4516a, 21-4619 and 22-2410 and repealing the existing
16             sections.
17      
18       Be it enacted by the Legislature of the State of Kansas:
19        Section  1. K.S.A. 1998 Supp. 8-1014 is hereby amended to
20       read as follows: 8-1014. (a) Except as provided by subsection (d)
21       and K.S.A. 8-2,142, and amendments thereto, if a person refuses a
22       test, the division, pursuant to K.S.A. 8-1002, and amendments
23       thereto, shall suspend the person's driving privileges for one year.
24             (b) Except as provided by subsection (d) and K.S.A. 8-2,142,
25       and amendments thereto, if a person fails a test or has an alcohol
26       or drug-related conviction in this state, the division shall:
27             (1) If the person had an alcohol concentration of less than .15 in the
28       person's blood or breath, on the person's first occurrence, suspend
29       the person's driving privileges for 30 days, then restrict the per-
30       son's driving privileges as provided by K.S.A. 8-1015, and amend-
31       ments thereto, for an additional 330 days; and
32             (2) if the person had an alcohol concentration of .15 or more in the
33       person's blood or breath, on the person's first occurrence, suspend the
34       person's driving privilege for 30 days and restrict the person's driving
35       privileges for 330 days to driving only a motor vehicle equipped with an
36       ignition interlock device;
37             (2) (3) on the person's second or a subsequent occurrence, sus-
38       pend the person's driving privileges for one year and restrict the
39       person's driving privileges for one year in accordance with K.S.A. 8-1015,
40       and amendments thereto, and restrict the person's driving privileges for
41       one year to driving only a motor vehicle equipped with an ignition inter-
42       lock device. Any time period of ignition interlock restriction shall be cred-

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  1       ited to the one year minimum reinstatement time period.
  2             (c) Whenever the division is notified by an alcohol and drug
  3       safety action program that a person has failed to complete any
  4       alcohol and drug safety action education or treatment program
  5       ordered by a court for a conviction of a violation of K.S.A. 8-1567,
  6       and amendments thereto, the division shall suspend the person's
  7       driving privileges until the division receives notice of the person's
  8       completion of such program.
  9             (d) Except as provided in K.S.A. 8-2,142, and amendments
10       thereto, if a person's driving privileges are subject to suspension
11       pursuant to this section for a test refusal, test failure or alcohol or
12       drug-related conviction arising from the same arrest, the period
13       of such suspension shall not exceed the longest applicable period
14       authorized by subsection (a) or (b), and such suspension periods
15       shall not be added together or otherwise imposed consecutively.
16       In addition, in determining the period of such suspension as au-
17       thorized by subsection (a) or (b), such person shall receive credit
18       for any period of time for which such person's driving privileges
19       were suspended while awaiting any hearing or final order author-
20       ized by this act.
21             If a person's driving privileges are subject to restriction pursu-
22       ant to this section for a test failure or alcohol or drug-related con-
23       viction arising from the same arrest, the restriction periods shall
24       not be added together or otherwise imposed consecutively. In ad-
25       dition, in determining the period of restriction, the person shall
26       receive credit for any period of suspension imposed for a test re-
27       fusal arising from the same arrest.
28             (e) If the division has taken action under subsection (a) for a
29       test refusal or under subsection (b) for a test failure and such ac-
30       tion is stayed pursuant to K.S.A. 8-259, and amendments thereto,
31       or if temporary driving privileges are issued pursuant to subsec-
32       tion (k) of K.S.A. 8-1002, and amendments thereto, the stay or tem-
33       porary driving privileges shall not prevent the division from taking
34       the action required by subsection (b) for an alcohol or drug-related
35       conviction.
36             (f) Upon restricting a person's driving privileges pursuant to
37       this section or K.S.A. 8-262, and amendments thereto, the division
38       shall issue without for a charge of $25 a driver's license which shall
39       indicate on the face of the license that restrictions have been im-
40       posed on the person's driving privileges and that a copy of the
41       order imposing the restrictions is required to be carried by the
42       person for whom the license was issued any time the person is
43       operating a motor vehicle on the highways of this state.

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  1             (g) Any person whose license is restricted to operating only a motor
  2       vehicle with an ignition interlock device installed may operate an em-
  3       ployer's vehicle without an ignition interlock device installed during nor-
  4       mal business activities, provided that the person does not partly or entirely
  5       own or control the employer's vehicle or business.
  6             (h) Whenever the division is notified by a certified ignition interlock
  7       manufacturer or an authorized representative of the manufacturer that
  8       any person whose license is restricted to the use of an ignition interlock
  9       has failed to comply with the rules and regulations adopted by the division
10       under K.S.A. 8-1016, and amendments thereto, the division shall suspend
11       the person's driving privileges until the division receives notice of the
12       person's compliance with the ignition interlock program.
13             Sec.  2. K.S.A. 1998 Supp. 8-1015 is hereby amended to read
14       as follows: 8-1015. (a) When subsection (b)(1) of K.S.A. 8-1014, and
15       amendments thereto, requires or authorizes the division to place
16       restrictions on a person's driving privileges, the division shall re-
17       strict the person's driving privileges to driving only under the cir-
18       cumstances provided by subsections (a)(1), (2), (3) and (4) of K.S.A.
19       8-292 and amendments thereto.
20             (b) In lieu of the restrictions set out in subsection (a), the di-
21       vision, upon request of the person whose driving privileges are to
22       be restricted, may restrict the person's driving privileges to driving
23       only a motor vehicle equipped with an ignition interlock device,
24       approved by the division and obtained, installed and maintained
25       at the person's expense.
26             (c) When subsection (b) of K.S.A. 8-262, and amendments thereto,
27       and subsections (b)(2) and (b)(3) of K.S.A. 8-1014, and amendments
28       thereto, require or authorize the division to place restrictions on a person's
29       driving privileges, the division shall restrict the person's driving privileges
30       to driving only a motor vehicle equipped with an ignition interlock device,
31       approved by the division and maintained at the person's expense and may
32       require driving only under circumstances provided by K.S.A. 8-292, and
33       amendments thereto. The division shall not issue the restricted license
34       under this subsection until the person has provided proof of installation
35       of an approved ignition interlock device.
36             (c) Upon a person's second or subsequent conviction for an alcohol
37       related offense, if the person had an alcohol concentration of .15 or more
38       in the person's blood or breath, the convicting court shall restrict the
39       person's driving privileges to driving only a motor vehicle equipped with
40       an ignition interlock device, approved by the division and obtained, in-
41       stalled and maintained at the person's expense.
42             (d) Upon expiration of the period of time for which restrictions
43       are imposed pursuant to this section, the licensee may apply to the

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  1       division for the return of any license previously surrendered by
  2       the licensee. If the license has expired, the person may apply to
  3       the division for a new license, which shall be issued by the division
  4       upon payment of the proper fee and satisfaction of the other con-
  5       ditions established by law, unless the person's driving privileges
  6       have been suspended or revoked prior to expiration.
  7             Sec.  3. K.S.A. 1998 Supp. 8-1016 is hereby amended to read
  8       as follows: 8-1016. (a) The secretary of revenue shall adopt rules
  9       and regulations for:
10             (1) The approval by the division of models and classes of igni-
11       tion interlock devices suitable for use by persons whose driving
12       privileges have been restricted to driving a vehicle equipped with
13       such a device; and
14             (2) the calibration and maintenance of such devices, which
15       shall be the responsibility of the manufacturer; and
16             (3) ensuring that each manufacturer approved provides a reasonable
17       statewide service network where such devices may be obtained, repaired,
18       replaced or serviced and such service network can be accessed 24 hours
19       per day through a toll-free phone service.
20             In adopting rules and regulations for approval of ignition inter-
21       lock devices under this section, the secretary of revenue shall in-
22       sure that those devices approved do not impede the safe operation of a
23       motor vehicle and have the fewest opportunities to be bypassed so as to
24       rende them ineffective require that the manufacturer's or the manufac-
25       turer's representatives calibrate and maintain the devices at intervals not
26       to exceed 60 days. Calibration and maintenance shall include but not be
27       limited to physical inspection of the device, the vehicle and wiring of the
28       device to the vehicle for signs of tampering, calibration of the device and
29       downloading of all data contained within the device's memory and re-
30       porting of any violation or noncompliance to the division.
31             (4) The division shall adopt by rule and regulation participant
32       requirements for proper use and maintenance of a certified ignition in-
33       terlock device during any time period the person's license is restricted by
34       the division to only operating a motor vehicle with an ignition interlock
35       device installed and by rule and regulation the reporting requirements of
36       the approved manufacturer to the division relating to the person's proper
37       use and maintenance of a certified ignition interlock device.
38             (b) If the division approves an ignition interlock device in ac-
39       cordance with rules and regulations adopted under this section,
40       the division shall give written notice of the approval to the man-
41       ufacturer of the device. Such notice shall be admissible in any civil
42       or criminal proceeding in this state.
43             (c) The manufacturer of an ignition interlock device shall re-

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  1       imburse the division for any cost incurred in approving or disap-
  2       proving such device under this section.
  3             (d) Neither the state nor any agency, officer or employee
  4       thereof shall be liable in any civil or criminal proceeding arising
  5       out of the use of an ignition interlock device approved under this
  6       section.
  7             Section  1. 4. K.S.A. 1998 Supp. 12-4516 is hereby amended to read
  8       as follows: 12-4516. (a)  (1) Except as provided in subsection (b), any
  9       person who has been convicted of a violation of a city ordinance of this
10       state may petition the convicting court for the expungement of such con-
11       viction and related arrest records if three or more years have elapsed
12       since the person:
13             (A) Satisfied the sentence imposed; or
14             (B) was discharged from probation, parole or a suspended sentence.
15             (2) Except as provided in subsection (b), any person who has fulfilled
16       the terms of a diversion agreement based on a violation of a city ordinance
17       of this state may petition the court for the expungement of such diversion
18       agreement and related arrest records if three or more years have elapsed
19       since the terms of the diversion agreement were fulfilled.
20             (b) No person may petition for expungement until five or more years
21       have elapsed since the person satisfied the sentence imposed or the terms
22       of a diversion agreement or was discharged from probation, parole, con-
23       ditional release or a suspended sentence, if such person was convicted of
24       the violation of a city ordinance which would also constitute:
25             (1) Vehicular homicide, as defined by K.S.A. 21-3405, and amend-
26       ments thereto;
27             (2) a violation of K.S.A. 8-1567, and amendments thereto;
28             (3) driving while the privilege to operate a motor vehicle on the public
29       highways of this state has been canceled, suspended or revoked, as pro-
30       hibited by K.S.A. 8-262, and amendments thereto;
31             (4) perjury resulting from a violation of K.S.A. 8-261a, and amend-
32       ments thereto;
33             (5) a violation of the provisions of the fifth clause of K.S.A. 8-142,
34       and amendments thereto, relating to fraudulent applications;
35             (6) any crime punishable as a felony wherein a motor vehicle was
36       used in the perpetration of such crime;
37             (7) failing to stop at the scene of an accident and perform the duties
38       required by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto;
39             (8) a violation of the provisions of K.S.A. 40-3104, and amendments
40       thereto, relating to motor vehicle liability insurance coverage; or
41             (9) a violation of K.S.A. 21-3405b, and amendments thereto.
42             (c) When a petition for expungement is filed, the court shall set a
43       date for a hearing of such petition and shall cause notice of such hearing

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  1       to be given to the prosecuting attorney and the arresting law enforcement
  2       agency. The petition shall state: (1) The defendant's full name;
  3             (2) the full name of the defendant at the time of arrest , conviction
  4       or diversion, if different than the defendant's current name;
  5             (3) the defendant's sex, race and date of birth;
  6             (4) the crime for which the defendant was arrested, convicted or
  7       diverted;
  8             (5) the date of the defendant's arrest, conviction or diversion; and
  9             (6) the identity of the convicting court, arresting law enforcement
10       agency or diverting authority. A municipal court may prescribe a fee to
11       be charged as costs for a person petitioning for an order of expungement
12       pursuant to this section. Any person who may have relevant information
13       about the petitioner may testify at the hearing. The court may inquire
14       into the background of the petitioner and shall have access to any reports
15       or records relating to the petitioner that are on file with the secretary of
16       corrections or the Kansas parole board.
17             (d) At the hearing on the petition, the court shall order the peti-
18       tioner's arrest record, conviction or diversion expunged if the court finds
19       that:
20             (1) The petitioner has not been convicted of a felony in the past two
21       years and no proceeding involving any such crime is presently pending
22       or being instituted against the petitioner;
23             (2) the circumstances and behavior of the petitioner warrant the
24       expungement; and
25             (3) the expungement is consistent with the public welfare.
26             (e) When the court has ordered an arrest record, conviction or di-
27       version expunged, the order of expungement shall state the information
28       required to be contained in the petition. The clerk of the court shall send
29       a certified copy of the order of expungement to the Kansas bureau of
30       investigation which shall notify the federal bureau of investigation, the
31       secretary of corrections and any other criminal justice agency which may
32       have a record of the arrest, conviction or diversion. After the order of
33       expungement is entered, the petitioner shall be treated as not having been
34       arrested, convicted or diverted of the crime, except that:
35             (1) Upon conviction for any subsequent crime, the conviction that
36       was expunged may be considered as a prior conviction in determining the
37       sentence to be imposed;
38             (2) upon conviction for any subsequent violation of K.S.A. 8-1567,
39       and amendments thereto, the diversion that was expunged shall be con-
40       sidered as a prior conviction pursuant to K.S.A. 8-1567, and amendments
41       thereto, in determining the sentence to be imposed; and
42             (3) the petitioner shall disclose that the arrest, conviction or diversion
43       occurred if asked about previous arrests, convictions or diversions:

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  1             (A) In any application for employment as a detective with a private
  2       detective agency, as defined by K.S.A. 75-7b01, and amendments thereto;
  3       as security personnel with a private patrol operator, as defined by K.S.A.
  4       75-7b01, and amendments thereto; or with an institution, as defined in
  5       K.S.A. 76-12a01, and amendments thereto, of the department of social
  6       and rehabilitation services;
  7             (B) in any application for admission, or for an order of reinstatement,
  8       to the practice of law in this state;
  9             (C) to aid in determining the petitioner's qualifications for employ-
10       ment with the Kansas lottery or for work in sensitive areas within the
11       Kansas lottery as deemed appropriate by the executive director of the
12       Kansas lottery;
13             (D) to aid in determining the petitioner's qualifications for executive
14       director of the Kansas racing commission, for employment with the com-
15       mission or for work in sensitive areas in parimutuel racing as deemed
16       appropriate by the executive director of the commission, or to aid in
17       determining qualifications for licensure or renewal of licensure by the
18       commission;
19             (E) upon application for a commercial driver's license under K.S.A.
20       8-2,125 through 8-2,142, and amendments thereto;
21             (F) to aid in determining the petitioner's qualifications to be an em-
22       ployee of the state gaming agency;
23             (G) to aid in determining the petitioner's qualifications to be an em-
24       ployee of a tribal gaming commission or to hold a license issued pursuant
25       to a tribal-state gaming compact; or
26             (H) in any application for registration as a broker-dealer, agent, in-
27       vestment adviser or investment adviser representative all as defined in
28       K.S.A. 17-1252 and amendments thereto;
29             (3) the court, in the order of expungement, may specify other cir-
30       cumstances under which the arrest, conviction or diversion is to be dis-
31       closed; and
32             (4) the conviction may be disclosed in a subsequent prosecution for
33       an offense which requires as an element of such offense a prior conviction
34       of the type expunged.
35             (f) Whenever a person is convicted of an ordinance violation, pleads
36       guilty and pays a fine for such a violation, is placed on parole or probation
37       or is granted a suspended sentence for such a violation, the person shall
38       be informed of the ability to expunge the arrest records or conviction.
39       Whenever a person enters into a diversion agreement, the person shall
40       be informed of the ability to expunge the diversion.
41             (g) Subject to the disclosures required pursuant to subsection (e), in
42       any application for employment, license or other civil right or privilege,
43       or any appearance as a witness, a person whose arrest records, conviction

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  1       or diversion of an offense has been expunged under this statute may state
  2       that such person has never been arrested, convicted or diverted of such
  3       offense.
  4             (h) Whenever the record of any arrest, conviction or diversion has
  5       been expunged under the provisions of this section or under the provi-
  6       sions of any other existing or former statute, the custodian of the records
  7       of arrest, conviction, diversion and incarceration relating to that crime
  8       shall not disclose the existence of such records, except when requested
  9       by:
10             (1) The person whose record was expunged;
11             (2) a private detective agency or a private patrol operator, and the
12       request is accompanied by a statement that the request is being made in
13       conjunction with an application for employment with such agency or op-
14       erator by the person whose record has been expunged;
15             (3) a court, upon a showing of a subsequent conviction of the person
16       whose record has been expunged;
17             (4) the secretary of social and rehabilitation services, or a designee of
18       the secretary, for the purpose of obtaining information relating to em-
19       ployment in an institution, as defined in K.S.A. 76-12a01, and amend-
20       ments thereto, of the department of social and rehabilitation services of
21       any person whose record has been expunged;
22             (5) a person entitled to such information pursuant to the terms of the
23       expungement order;
24             (6) a prosecuting attorney, and such request is accompanied by a
25       statement that the request is being made in conjunction with a prosecu-
26       tion of an offense that requires a prior conviction as one of the elements
27       of such offense;
28             (7) the supreme court, the clerk or disciplinary administrator thereof,
29       the state board for admission of attorneys or the state board for discipline
30       of attorneys, and the request is accompanied by a statement that the
31       request is being made in conjunction with an application for admission,
32       or for an order of reinstatement, to the practice of law in this state by the
33       person whose record has been expunged;
34             (8) the Kansas lottery, and the request is accompanied by a statement
35       that the request is being made to aid in determining qualifications for
36       employment with the Kansas lottery or for work in sensitive areas within
37       the Kansas lottery as deemed appropriate by the executive director of the
38       Kansas lottery;
39             (9) the governor or the Kansas racing commission, or a designee of
40       the commission, and the request is accompanied by a statement that the
41       request is being made to aid in determining qualifications for executive
42       director of the commission, for employment with the commission, for
43       work in sensitive areas in parimutuel racing as deemed appropriate by

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  1       the executive director of the commission or for licensure, renewal of
  2       licensure or continued licensure by the commission;
  3             (10) the state gaming agency, and the request is accompanied by a
  4       statement that the request is being made to aid in determining qualifi-
  5       cations: (A) To be an employee of the state gaming agency; or (B) to be
  6       an employee of a tribal gaming commission or to hold a license issued
  7       pursuant to a tribal-state gaming compact; or
  8             (11) the Kansas securities commissioner, or a designee of the com-
  9       missioner, and the request is accompanied by a statement that the request
10       is being made in conjunction with an application for registration as a
11       broker-dealer, agent, investment adviser or investment adviser represen-
12       tative by such agency and the application was submitted by the person
13       whose record has been expunged.
14        (i) Nothing in this section shall be construed to create an obli-
15       gation on the part of any person to disclose an arrest record unless
16       specifically required by law to disclose such arrest record.
17        Sec.  2. 5. K.S.A. 1998 Supp. 12-4516a is hereby amended to
18       read as follows: 12-4516a. (a) Any person who has been arrested
19       on a violation of a city ordinance of this state may petition the court
20       for the expungement of such arrest record.
21             (b) When a petition for expungement is filed, the court shall set
22       a date for hearing on such petition and shall cause notice of such
23       hearing to be given to the prosecuting attorney and the arresting
24       law enforcement agency. The petition shall state: (1) The peti-
25       tioner's full name;
26             (2) the full name of the petitioner at the time of arrest, if differ-
27       ent than the petitioner's current name;
28             (3) the petitioner's sex, race and date of birth;
29             (4) the crime for which the petitioner was arrested;
30             (5) the date of the petitioner's arrest, and
31             (6) the identity of the arresting law enforcement agency.
32             A municipal court may prescribe a fee to be charged as costs for
33       a person petitioning for an order of expungement pursuant to this
34       section. Any person who may have relevant information about the
35       petitioner may testify at the hearing. The court may inquire into
36       the background of the petitioner.
37             (c) At the hearing on a petition for expungement, the court shall
38       order the arrest record and subsequent court proceedings, if any,
39       expunged upon finding: (1) The arrest occurred because of mistaken
40       identity;
41             (2) a court has found that there was no probable cause for the
42       arrest;
43             (3) the petitioner was found not guilty in court proceedings; or

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  1             (4) the expungement would be in the best interests of justice and
  2       (A) Charges have been dismissed; or (B) no charges have been or
  3       are likely to be filed.
  4             (d) When the court has ordered expungement of an arrest record
  5       and subsequent court proceedings, if any, the order shall state the
  6       information required to be stated in the petition and shall state the
  7       grounds for expungement under subsection (c). The clerk of the
  8       court shall send a certified copy of the order to the federal bureau
  9       of investigation, the Kansas bureau of investigation, the secretary
10       of corrections and any other criminal justice agency which may
11       have a record of the arrest. If an order of expungement is entered,
12       the petitioner shall be treated as not having been arrested.
13             (e) If the ground for expungement is as provided in subsection
14       (c)(4), the court shall determine whether, in the interest of public
15       welfare, the records should be available for any of the following
16       purposes: (1) In any application for employment as a detective with
17       a private detective agency, as defined by K.S.A. 75-7b01 and amend-
18       ments thereto; as security personnel with a private patrol operator,
19       as defined by K.S.A. 75-7b01 and amendments thereto; or with an
20       institution, as defined in K.S.A. 76-12a01 and amendments thereto,
21       of the department of social and rehabilitation services;
22             (2) in any application for admission, or for an order of rein-
23       statement, to the practice of law in this state;
24             (3) to aid in determining the petitioner's qualifications for em-
25       ployment with the Kansas lottery or for work in sensitive areas
26       within the Kansas lottery as deemed appropriate by the executive
27       director of the Kansas lottery;
28             (4) to aid in determining the petitioner's qualifications for ex-
29       ecutive director of the Kansas racing commission, for employment
30       with the commission or for work in sensitive areas in parimutuel
31       racing as deemed appropriate by the executive director of the com-
32       mission, or to aid in determining qualifications for licensure or re-
33       newal of licensure by the commission;
34             (5) in any application for a commercial driver's license under
35       K.S.A. 8-2,125 through 8-2,142 and amendments thereto;
36             (6) to aid in determining the petitioner's qualifications to be an
37       employee of the state gaming agency;
38             (7) to aid in determining the petitioner's qualifications to be an
39       employee of a tribal gaming commission or to hold a license issued
40       pursuant to a tribal-state gaming compact; or
41             (8) in any other circumstances which the court deems
42       appropriate.
43             (f) Subject to any disclosures required under subsection (e), in

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  1       any application for employment, license or other civil right or priv-
  2       ilege, or any appearance as a witness, a person whose arrest records
  3       have been expunged as provided in this section may state that such
  4       person has never been arrested.
  5             (g) Whenever a petitioner's arrest records have been expunged
  6       as provided in this section, the custodian of the records of arrest,
  7       incarceration due to arrest or court proceedings related to the ar-
  8       rest, shall not disclose the arrest or any information related to the
  9       arrest, except as directed by the order of expungement or when re-
10       quested by the person whose arrest record was expunged.
11             (h) Nothing in this section shall be construed to create an obligation
12       on the part of any person to disclose an arrest record unless specifically
13       required by law to disclose such arrest record.
14             Sec.  2. 3 6. K.S.A. 1998 Supp. 21-4619 is hereby amended to read
15       as follows: 21-4619. (a)  (1) Except as provided in subsections (b) and
16       (c), any person convicted in this state of a traffic infraction, cigarette or
17       tobacco infraction, misdemeanor or a class D or E felony, or for crimes
18       committed on or after July 1, 1993, nondrug crimes ranked in severity
19       levels 6 through 10 or any felony ranked in severity level 4 of the drug
20       grid, may petition the convicting court for the expungement of such con-
21       viction or related arrest records if three or more years have elapsed since
22       the person: (A) Satisfied the sentence imposed; or (B) was discharged
23       from probation, a community correctional services program, parole, post-
24       release supervision, conditional release or a suspended sentence.
25             (2) Except as provided in subsections (b) and (c), any person who has
26       fulfilled the terms of a diversion agreement may petition the district court
27       for the expungement of such diversion agreement and related arrest re-
28       cords if three or more years have elapsed since the terms of the diversion
29       agreement were fulfilled.
30             (b) Except as provided in subsection (c), no person may petition for
31       expungement until five or more years have elapsed since the person sat-
32       isfied the sentence imposed, the terms of a diversion agreement or was
33       discharged from probation, a community correctional services program,
34       parole, postrelease supervision, conditional release or a suspended sen-
35       tence, if such person was convicted of a class A, B or C felony, or for
36       crimes committed on or after July 1, 1993, if convicted of an off-grid
37       felony or any nondrug crime ranked in severity levels 1 through 5 or any
38       felony ranked in severity levels 1 through 3 of the drug grid, or:
39             (1) Vehicular homicide, as defined by K.S.A. 21-3405 and amend-
40       ments thereto or as prohibited by any law of another state which is in
41       substantial conformity with that statute;
42             (2) a violation of K.S.A. 8-1567 and amendments thereto, or a viola-
43       tion of any law of another state, which declares to be unlawful the acts

SB 4--Am. by H

12

  1       prohibited by that statute;
  2             (3) driving while the privilege to operate a motor vehicle on the public
  3       highways of this state has been canceled, suspended or revoked, as pro-
  4       hibited by K.S.A. 8-262 and amendments thereto or as prohibited by any
  5       law of another state which is in substantial conformity with that statute;
  6             (4) perjury resulting from a violation of K.S.A. 8-261a and amend-
  7       ments thereto or resulting from the violation of a law of another state
  8       which is in substantial conformity with that statute;
  9             (5) violating the provisions of the fifth clause of K.S.A. 8-142 and
10       amendments thereto, relating to fraudulent applications or violating the
11       provisions of a law of another state which is in substantial conformity with
12       that statute;
13             (6) any crime punishable as a felony wherein a motor vehicle was
14       used in the perpetration of such crime;
15             (7) failing to stop at the scene of an accident and perform the duties
16       required by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto,
17       or required by a law of another state which is in substantial conformity
18       with those statutes;
19             (8) violating the provisions of K.S.A. 40-3104 and amendments
20       thereto, relating to motor vehicle liability insurance coverage; or
21             (9) a violation of K.S.A. 21-3405b, prior to its repeal.
22             (c) There shall be no expungement of convictions for the following
23       offenses or of convictions for an attempt to commit any of the following
24       offenses: (1) Rape as defined in subsection (a)(2) of K.S.A. 21-3502 and
25       amendments thereto; (2) indecent liberties with a child as defined in
26       K.S.A. 21-3503 and amendments thereto; (3) aggravated indecent liber-
27       ties with a child as defined in K.S.A. 21-3504 and amendments thereto;
28       (4) criminal sodomy as defined in subsection (a)(2) or (a)(3) of K.S.A. 21-
29       3505 and amendments thereto; (5) aggravated criminal sodomy as defined
30       in K.S.A. 21-3506 and amendments thereto; (6) indecent solicitation of a
31       child as defined in K.S.A. 21-3510 and amendments thereto; (7) aggra-
32       vated indecent solicitation of a child as defined in K.S.A. 21-3511 and
33       amendments thereto; (8) sexual exploitation of a child as defined in K.S.A.
34       21-3516 and amendments thereto; (9) aggravated incest as defined in
35       K.S.A. 21-3603 and amendments thereto; (10) endangering a child as
36       defined in K.S.A. 21-3608 and amendments thereto; (11) abuse of a child
37       as defined in K.S.A. 21-3609 and amendments thereto; (12) capital mur-
38       der as defined in K.S.A. 21-3439 and amendments thereto; (13) murder
39       in the first degree as defined in K.S.A. 21-3401 and amendments thereto;
40       (14) murder in the second degree as defined in K.S.A. 21-3402 and
41       amendments thereto; (15) voluntary manslaughter as defined in K.S.A.
42       21-3403 and amendments thereto; (16) involuntary manslaughter as de-
43       fined in K.S.A. 21-3404 and amendments thereto; (17) involuntary man-

SB 4--Am. by H

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  1       slaughter while driving under the influence of alcohol or drugs as defined
  2       in K.S.A. 21-3442 and amendments thereto; or (18) any conviction for
  3       any offense in effect at any time prior to the effective date of this act,
  4       that is comparable to any offense as provided in this subsection.
  5             (d) When a petition for expungement is filed, the court shall set a
  6       date for a hearing of such petition and shall cause notice of such hearing
  7       to be given to the prosecuting attorney and the arresting law enforcement
  8       agency. The petition shall state: (1) The defendant's full name;
  9             (2) the full name of the defendant at the time of arrest , conviction
10       or diversion, if different than the defendant's current name;
11             (3) the defendant's sex, race and date of birth;
12             (4) the crime for which the defendant was arrested, convicted or
13       diverted;
14             (5) the date of the defendant's arrest, conviction or diversion; and
15             (6) the identity of the convicting court, arresting law enforcement
16       authority or diverting authority. There shall be no docket fee for filing a
17       petition pursuant to this section. All petitions for expungement shall be
18       docketed in the original criminal action. Any person who may have rel-
19       evant information about the petitioner may testify at the hearing. The
20       court may inquire into the background of the petitioner and shall have
21       access to any reports or records relating to the petitioner that are on file
22       with the secretary of corrections or the Kansas parole board.
23             (e) At the hearing on the petition, the court shall order the peti-
24       tioner's arrest record, conviction or diversion expunged if the court finds
25       that:
26             (1) The petitioner has not been convicted of a felony in the past two
27       years and no proceeding involving any such crime is presently pending
28       or being instituted against the petitioner;
29             (2) the circumstances and behavior of the petitioner warrant the
30       expungement; and
31             (3) the expungement is consistent with the public welfare.
32             (f) When the court has ordered an arrest record, conviction or diver-
33       sion expunged, the order of expungement shall state the information re-
34       quired to be contained in the petition. The clerk of the court shall send
35       a certified copy of the order of expungement to the Kansas bureau of
36       investigation which shall notify the federal bureau of investigation, the
37       secretary of corrections and any other criminal justice agency which may
38       have a record of the arrest, conviction or diversion. After the order of
39       expungement is entered, the petitioner shall be treated as not having been
40       arrested, convicted or diverted of the crime, except that:
41             (1) Upon conviction for any subsequent crime, the conviction that
42       was expunged may be considered as a prior conviction in determining the
43       sentence to be imposed;

SB 4--Am. by H

14

  1             (2) upon conviction for any subsequent violation of K.S.A. 8-1567,
  2       and amendments thereto, the diversion that was expunged shall be con-
  3       sidered as a prior conviction pursuant to K.S.A. 8-1567, and amendments
  4       thereto, in determining the sentence to be imposed; and
  5             (3) the petitioner shall disclose that the arrest, conviction or diversion
  6       occurred if asked about previous arrests, convictions or diversions: (A) In
  7       any application for employment as a detective with a private detective
  8       agency, as defined by K.S.A. 75-7b01 and amendments thereto; as se-
  9       curity personnel with a private patrol operator, as defined by K.S.A. 75-
10       7b01 and amendments thereto; or with an institution, as defined in K.S.A.
11       76-12a01 and amendments thereto, of the department of social and re-
12       habilitation services;
13             (B) in any application for admission, or for an order of reinstatement,
14       to the practice of law in this state;
15             (C) to aid in determining the petitioner's qualifications for employ-
16       ment with the Kansas lottery or for work in sensitive areas within the
17       Kansas lottery as deemed appropriate by the executive director of the
18       Kansas lottery;
19             (D) to aid in determining the petitioner's qualifications for executive
20       director of the Kansas racing commission, for employment with the com-
21       mission or for work in sensitive areas in parimutuel racing as deemed
22       appropriate by the executive director of the commission, or to aid in
23       determining qualifications for licensure or renewal of licensure by the
24       commission;
25             (E) upon application for a commercial driver's license under K.S.A.
26       8-2,125 through 8-2,142, and amendments thereto;
27             (F) to aid in determining the petitioner's qualifications to be an em-
28       ployee of the state gaming agency;
29             (G) to aid in determining the petitioner's qualifications to be an em-
30       ployee of a tribal gaming commission or to hold a license issued pursuant
31       to a tribal-state gaming compact; or
32             (H) in any application for registration as a broker-dealer, agent, in-
33       vestment adviser or investment adviser representative all as defined in
34       K.S.A. 17-1252 and amendments thereto;
35             (3) the court, in the order of expungement, may specify other cir-
36       cumstances under which the conviction is to be disclosed;
37             (4) the conviction may be disclosed in a subsequent prosecution for
38       an offense which requires as an element of such offense a prior conviction
39       of the type expunged; and
40             (5) upon commitment to the custody of the secretary of corrections,
41       any previously expunged record in the possession of the secretary of cor-
42       rections may be reinstated and the expungement disregarded, and the
43       record continued for the purpose of the new commitment.

SB 4--Am. by H

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  1             (g) Whenever a person is convicted of a crime, pleads guilty and pays
  2       a fine for a crime, is placed on parole, postrelease supervision or proba-
  3       tion, is assigned to a community correctional services program, is granted
  4       a suspended sentence or is released on conditional release, the person
  5       shall be informed of the ability to expunge the arrest records or convic-
  6       tion. Whenever a person enters into a diversion agreement, the person
  7       shall be informed of the ability to expunge the diversion.
  8             (h) Subject to the disclosures required pursuant to subsection (f), in
  9       any application for employment, license or other civil right or privilege,
10       or any appearance as a witness, a person whose arrest records, conviction
11       or diversion of a crime has been expunged under this statute may state
12       that such person has never been arrested, convicted or diverted of such
13       crime, but the expungement of a felony conviction does not relieve an
14       individual of complying with any state or federal law relating to the use
15       or possession of firearms by persons convicted of a felony.
16             (i) Whenever the record of any arrest, conviction or diversion has
17       been expunged under the provisions of this section or under the provi-
18       sions of any other existing or former statute, the custodian of the records
19       of arrest, conviction, diversion and incarceration relating to that crime
20       shall not disclose the existence of such records, except when requested
21       by:
22             (1) The person whose record was expunged;
23             (2) a private detective agency or a private patrol operator, and the
24       request is accompanied by a statement that the request is being made in
25       conjunction with an application for employment with such agency or op-
26       erator by the person whose record has been expunged;
27             (3) a court, upon a showing of a subsequent conviction of the person
28       whose record has been expunged;
29             (4) the secretary of social and rehabilitation services, or a designee of
30       the secretary, for the purpose of obtaining information relating to em-
31       ployment in an institution, as defined in K.S.A. 76-12a01 and amend-
32       ments thereto, of the department of social and rehabilitation services of
33       any person whose record has been expunged;
34             (5) a person entitled to such information pursuant to the terms of the
35       expungement order;
36             (6) a prosecuting attorney, and such request is accompanied by a
37       statement that the request is being made in conjunction with a prosecu-
38       tion of an offense that requires a prior conviction as one of the elements
39       of such offense;
40             (7) the supreme court, the clerk or disciplinary administrator thereof,
41       the state board for admission of attorneys or the state board for discipline
42       of attorneys, and the request is accompanied by a statement that the
43       request is being made in conjunction with an application for admission,

SB 4--Am. by H

16

  1       or for an order of reinstatement, to the practice of law in this state by the
  2       person whose record has been expunged;
  3             (8) the Kansas lottery, and the request is accompanied by a statement
  4       that the request is being made to aid in determining qualifications for
  5       employment with the Kansas lottery or for work in sensitive areas within
  6       the Kansas lottery as deemed appropriate by the executive director of the
  7       Kansas lottery;
  8             (9) the governor or the Kansas racing commission, or a designee of
  9       the commission, and the request is accompanied by a statement that the
10       request is being made to aid in determining qualifications for executive
11       director of the commission, for employment with the commission, for
12       work in sensitive areas in parimutuel racing as deemed appropriate by
13       the executive director of the commission or for licensure, renewal of
14       licensure or continued licensure by the commission;
15             (10) the Kansas sentencing commission;
16             (11) the state gaming agency, and the request is accompanied by a
17       statement that the request is being made to aid in determining qualifi-
18       cations: (A) To be an employee of the state gaming agency; or (B) to be
19       an employee of a tribal gaming commission or to hold a license issued
20       pursuant to a tribal-gaming compact; or
21             (12) the Kansas securities commissioner or a designee of the com-
22       missioner, and the request is accompanied by a statement that the request
23       is being made in conjunction with an application for registration as a
24       broker-dealer, agent, investment adviser or investment adviser represen-
25       tative by such agency and the application was submitted by the person
26       whose record has been expunged. 
27       (j) Nothing in this section shall be construed to create an obli-
28       gation on the part of any person to disclose an arrest record unless
29       specifically required by law to disclose such arrest record.
30        Sec.  4. 7. K.S.A. 1998 Supp. 22-2410 is hereby amended to read
31       as follows: 22-2410. (a) Any person who has been arrested in this
32       state may petition the district court for the expungement of such
33       arrest record.
34             (b) When a petition for expungement is filed, the court shall set
35       a date for hearing on such petition and shall cause notice of such
36       hearing to be given to the prosecuting attorney and the arresting
37       law enforcement agency. The petition shall state: (1) The peti-
38       tioner's full name;
39             (2) the full name of the petitioner at the time of arrest, if differ-
40       ent than the petitioner's current name;
41             (3) the petitioner's sex, race and date of birth;
42             (4) the crime for which the petitioner was arrested;
43             (5) the date of the petitioner's arrest; and

SB 4--Am. by H

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  1             (6) the identity of the arresting law enforcement agency.
  2             There shall be no docket fee for filing a petition pursuant to this
  3       section. Any person who may have relevant information about the
  4       petitioner may testify at the hearing. The court may inquire into
  5       the background of the petitioner.
  6             (c) At the hearing on a petition for expungement, the court shall
  7       order the arrest record and subsequent court proceedings, if any,
  8       expunged upon finding: (1) The arrest occurred because of mistaken
  9       identity;
10             (2) a court has found that there was no probable cause for the
11       arrest;
12             (3) the petitioner was found not guilty in court proceedings; or
13             (4) the expungement would be in the best interests of justice and
14       (A) Charges have been dismissed; or (B) no charges have been or
15       are likely to be filed.
16             (d) When the court has ordered expungement of an arrest record
17       and subsequent court proceedings, if any, the order shall state the
18       information required to be stated in the petition and shall state the
19       grounds for expungement under subsection (c). The clerk of the
20       court shall send a certified copy of the order to the federal bureau
21       of investigation, the Kansas bureau of investigation, the secretary
22       of corrections and any other criminal justice agency which may
23       have a record of the arrest. If an order of expungement is entered,
24       the petitioner shall be treated as not having been arrested.
25             (e) If the ground for expungement is as provided in subsection
26       (c)(4), the court shall determine whether, in the interests of public
27       welfare, the records should be available for any of the following
28       purposes: (1) In any application for employment as a detective with
29       a private detective agency, as defined in K.S.A. 75-7b01 and amend-
30       ments thereto; as security personnel with a private patrol operator,
31       as defined by K.S.A. 75-7b01 and amendments thereto; or with an
32       institution, as defined in K.S.A. 76-12a01 and amendments thereto,
33       of the department of social and rehabilitation services;
34             (2) in any application for admission, or for an order of rein-
35       statement, to the practice of law in this state;
36             (3) to aid in determining the petitioner's qualifications for em-
37       ployment with the Kansas lottery or for work in sensitive areas
38       within the Kansas lottery as deemed appropriate by the executive
39       director of the Kansas lottery;
40             (4) to aid in determining the petitioner's qualifications for ex-
41       ecutive director of the Kansas racing commission, for employment
42       with the commission or for work in sensitive areas in parimutuel
43       racing as deemed appropriate by the executive director of the com-

SB 4--Am. by H

18

  1       mission, or to aid in determining qualifications for licensure or re-
  2       newal of licensure by the commission;
  3             (5) in any application for a commercial driver's license under
  4       K.S.A. 8-2,125 through 8-2,142 and amendments thereto;
  5             (6) to aid in determining the petitioner's qualifications to be an
  6       employee of the state gaming agency;
  7             (7) to aid in determining the petitioner's qualifications to be an
  8       employee of a tribal gaming commission or to hold a license issued
  9       pursuant to a tribal-state gaming compact; or
10             (8) in any other circumstances which the court deems
11       appropriate.
12             (f) Subject to any disclosures required under subsection (e), in
13       any application for employment, license or other civil right or priv-
14       ilege, or any appearance as a witness, a person whose arrest records
15       have been expunged as provided in this section may state that such
16       person has never been arrested.
17             (g) Whenever a petitioner's arrest records have been expunged
18       as provided in this section, the custodian of the records of arrest,
19       incarceration due to arrest or court proceedings related to the ar-
20       rest, shall not disclose the arrest or any information related to the
21       arrest, except as directed by the order of expungement or when re-
22       quested by the person whose arrest record was expunged.
23             (h) Nothing in this section shall be construed to create an obligation
24       on the part of any person to disclose an arrest record unless specifically
25       required by law to disclose such arrest record.
26        Sec.  3. 5. 8. K.S.A. 1998 Supp. 8-1014, 8-1015, 8-1016, 12-4516
27       and, 12-4516a, 21-4619 and 22-2410 are hereby repealed.
28        Sec.  4. 6. 9. This act shall take effect and be in force from and
29       after its publication in the statute book.