[As Amended by Senate Committee of the Whole]
         
Session of 2000
         
Substitute for SENATE BILL No. 341
         
By Committee on Judiciary
         
4-7
         

10             AN  ACT concerning driving under the influence of alcohol or drugs;
11             relating to suspension of license; administrative hearing procedure;
12             reinstatement; penalties; amending K.S.A. 1999 Supp. [the powers
13             and duties of the division of vehicles; relating to the operation of
14             vehicles; amending K.S.A. 8-1324 and 8-1332 and K.S.A. 1999
15             Supp. 8-235d, 8-237, 8-240,] 8-241, 8-1002, 8-1014 and 8-1567a and
16             repealing the existing sections.
17      
18       Be it enacted by the Legislature of the State of Kansas:
19        [Section  1. K.S.A. 1999 Supp. 8-235d is hereby amended to
20       read as follows: 8-235d. (a) Drivers' license examiners of the divi-
21       sion shall accept original applications for drivers' licenses and in-
22       struction permits, as distinguished from applications for renewals
23       of licenses, on forms prescribed by the division and also shall issue
24       instruction permits. Drivers' license examiners of the division shall
25       examine every applicant for a driver's license who is required by
26       the provisions of the motor vehicle drivers' license act to be exam-
27       ined. Such examination shall be held in the county where the ap-
28       plicant resides or at a place adjacent thereto reasonably convenient
29       to the applicant or at a location established by the secretary for the
30       issuance of a commercial driver's license. Such examination shall
31       include a test of the applicant's eyesight, the applicant's ability to
32       read and understand highway signs regulating, warning and di-
33       recting traffic, the applicant's knowledge of the traffic laws of this
34       state and shall include an actual demonstration of ability to exercise
35       ordinary and reasonable control in the operation of motor vehicles
36       which the class of license applied for would entitle the applicant to
37       drive. At the conclusion of the examination the examiner shall issue
38       a license to the applicant, if the applicant has successfully passed
39       the examination with the class of license the applicant has applied
40       for.
41             [(b) In addition to the requirements of subsection (a),:
42             [(1) Any person applying for a driver's license shall comply with the
43       provisions of subsection (b) of K.S.A. 8-240, and amendments thereto; and


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  1             [(2) any person who is under the age of 18 years and at least 16
  2       years of age, who is applying for a driver's license for the first time,
  3       not including an instruction permit, shall submit a signed affidavit
  4       of either a parent or guardian, stating that the applicant has com-
  5       pleted at least 50 hours of adult supervised driving with at least 10
  6       of those hours being at night. The required adult supervised driving
  7       required in this subsection shall be conducted by an adult who is
  8       at least 21 years of age and is the holder of a valid commercial
  9       driver's license, class A, B or C driver's license.
10             [Evidence of failure of any licensee who was required to complete
11       the 50 hours of adult supervised driving under this subsection shall
12       not be admissible in any action for the purpose of determining any
13       aspect of comparative negligence or mitigation of damages.
14             [Sec.  2. K.S.A. 1999 Supp. 8-237 is hereby amended to read as
15       follows: 8-237. The division of vehicles shall not issue any driver's
16       license to any person:
17             [(a) Who is under the age of 16 years, except that the division
18       may issue a restricted class C or M license, as provided in this act,
19       to any person who: (1) Is at least 15 years of age; (2) has successfully
20       completed an approved course in driver training; (3) has held an
21       instructional permit issued under the provisions of K.S.A. 8-239,
22       and amendments thereto, for a period of at least six months and has
23       completed at least 25 hours of adult supervised driving; and (4)
24       upon the written application of the person's parent or guardian. The
25       required adult supervised driving required in clause (3) above shall
26       be conducted by an adult who is at least 21 years of age and is the
27       holder of a valid commercial driver's license, class A, B or C driver's
28       license. Except as hereafter provided, the application of the parent
29       or guardian shall be submitted to the division. The governing body
30       of any city, by ordinance, may require the application of any person
31       who is under 16 years of age and who resides within the city to be
32       first submitted to the chief law enforcement officer of the city. The
33       board of county commissioners of any county, by resolution, may
34       require the application of any person who is under 16 years of age
35       and who resides within the county and outside the corporate limits
36       of any city to be first submitted to the chief law enforcement officer
37       of the county. No ordinance or resolution authorized by this sub-
38       section shall become effective until a copy of it is transmitted to the
39       division of vehicles. The chief law enforcement officer of any city
40       or county which has adopted the ordinance or resolution authorized
41       by this subsection shall make a recommendation on the application
42       as to the necessity for the issuance of the restricted license, and the
43       recommendation shall be transmitted, with the application, to the


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  1       division of vehicles. If the division finds that it is necessary to issue
  2       the restricted license, it shall issue a driver's license to the person.
  3             [A restricted class C license issued under this subsection shall
  4       entitle the licensee, while possessing the license, to operate any mo-
  5       tor vehicle in class C, as designated in K.S.A. 8-234b, and amend-
  6       ments thereto. A restricted class M license shall entitle the licensee,
  7       while possessing such license, to operate a motorcycle. The re-
  8       stricted license shall entitle the licensee to operate the appropriate
  9       vehicle at any time:
10             [(1) While going to or from or in connection with any job, em-
11       ployment or farm-related work;
12             [(2) on days while school is in session, over the most direct and
13       accessible route between the licensee's residence and school of en-
14       rollment for the purposes of school attendance;
15             [(3) when the licensee is operating a passenger car, at any time
16       when accompanied by an adult who is the holder of a valid com-
17       mercial driver's license, class A, B or C driver's license and who is
18       actually occupying a seat beside the driver; or
19             [(4) when the licensee is operating a motorcycle, at any time
20       when accompanied by an adult who is the holder of a valid class M
21       driver's license and who is operating a motorcycle in the general
22       proximity of the licensee.
23             [Any licensee issued a restricted license under this subsection
24       shall not operate any motor vehicle with nonsibling minor passen-
25       gers and any conviction for violating this provision shall be con-
26       strued as a moving traffic violation for the purpose of K.S.A. 8-255,
27       and amendments thereto.
28             [A restricted driver's license issued under this subsection is sub-
29       ject to suspension or revocation in the same manner as any other
30       driver's license. In addition, the division may suspend the restricted
31       driver's license upon receiving satisfactory evidence that: (1) The
32       licensee has violated the restriction of the license, (2) the licensee
33       has been involved in two or more accidents chargeable to the li-
34       censee or (3) the recommendation of the chief law enforcement of-
35       ficer of any city or county requiring the recommendation has been
36       withdrawn. The suspended license shall not be reinstated for one
37       year or until the licensee reaches the age of 16, whichever period
38       is longer.
39             [Any licensee issued a restricted license under this subsection
40       who: (1) Is under the age of 16 years and is convicted of two or more
41       moving traffic violations committed on separate occasions shall not
42       be eligible to receive a driver's license which is not restricted in
43       accordance with the provisions of this subsection until the person


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  1       reaches 17 years of age; or (2) fails to provide the required affidavit
  2       stating that the licensee has completed at least 50 hours of adult
  3       supervised driving with 10 of those hours being at night shall not
  4       be eligible to receive a driver's license which is not restricted in
  5       accordance with the provisions of this subsection until the person
  6       provides such affidavit to the division or the person reaches 17 years
  7       of age, whichever occurs first.
  8             [Any licensee issued a restricted license under this subsection on
  9       and after July 1, 1999, shall provide prior to reaching 16 years of
10       age, a signed affidavit of either a parent or guardian, stating that
11       the applicant has completed the required 25 hours prior to being
12       issued a restricted license and 25 hours of additional adult super-
13       vised driving. Of the 50 hours required by this subsection, at least
14       10 of those hours shall be at night. The adult supervised driving
15       shall be conducted by an adult who is at least 21 years of age and
16       is the holder of a valid commercial driver's license, class A, B or C
17       driver's license.
18             [Evidence of failure of any licensee who was required to complete
19       the 50 hours of adult supervised driving under this subsection shall
20       not be admissible in any action for the purpose of determining any
21       aspect of comparative negligence or mitigation of damages.
22             [(b) Who is under the age of 18 years, except as provided in
23       K.S.A. 1999 Supp. 8-2,147, and amendments thereto, for the pur-
24       pose of driving a commercial or class A or B motor vehicle.
25             [(c) Whose license is currently revoked, suspended or canceled
26       in this or any other state, except as provided in K.S.A. 8-256, and
27       amendments thereto.
28             [(d) Who is a habitual drunkard, habitual user of narcotic drugs
29       or habitual user of any other drug to a degree which renders the
30       user incapable of safely driving a motor vehicle.
31             [(e) Who has previously been adjudged to be afflicted with or
32       suffering from any mental disability or disease and who, at the time
33       of making application for a driver's license, has not been restored
34       to capacity in the manner provided by law. Application of this lim-
35       itation to any person known to have suffered any seizure disorder
36       is subject to the provisions of paragraph (7) of subsection (e) of
37       K.S.A. 8-247, and amendments thereto.
38             [(f) Who is required by the motor vehicle drivers' license act to
39       take an examination, unless the person has successfully passed the
40       examination.
41             [(g) Who is at least 16 years of age and less than 17 years of
42       age, who is applying for a driver's license for the first time since
43       reaching 16 years of age and who, three times or more, has been


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  1       adjudged to be a traffic offender under the Kansas juvenile code or
  2       a juvenile offender under the Kansas juvenile justice code, by rea-
  3       son of violation of one or more statutes regulating the movement of
  4       traffic on the roads, streets or highways of this state, except that, in
  5       the discretion of the director, the person may be issued a driver's
  6       license which is restricted in the manner the division deems to be
  7       appropriate. No person described by this subsection shall be eligi-
  8       ble to receive a driver's license which is not restricted until the
  9       person has reached the age of 17 years.
10             [(h) Who has not submitted proof of age or proof of identity, as re-
11       quired by K.S.A. 8-240, and amendments thereto.
12             [(i) Whose presence in the United States is in violation of federal
13       immigration laws.
14             [Sec.  3. K.S.A. 1999 Supp. 8-240 is hereby amended to read as
15       follows: 8-240. (a) Every application for an instruction permit shall
16       be made upon a form furnished by the division of vehicles and ac-
17       companied by a fee of $2 for class A, B, C or M and $5 for all
18       commercial classes. Every other application shall be made upon a
19       form furnished by the division and accompanied by an examination
20       fee of $3, unless a different fee is required by K.S.A. 8-241, and
21       amendments thereto, and by the proper fee for the license for which
22       the application is made. If the applicant is not required to take an
23       examination the examination fee shall not be required. The exami-
24       nation shall consist of three tests, as follows: (1) Vision; (2) written;
25       and (3) driving. If the applicant fails the vision test, the applicant
26       may have correction of vision made and take the vision test again
27       without any additional fee. If an applicant fails the written test, the
28       applicant may take such test again upon the payment of an addi-
29       tional examination fee of $1.50. If an applicant fails the driving test,
30       the applicant may take such test again upon the payment of an
31       additional examination fee of $1.50. If an applicant fails to pass all
32       three of the tests within a period of six months from the date of
33       original application and desires to take additional tests, the appli-
34       cant shall file an application for reexamination upon a form fur-
35       nished by the division, which shall be accompanied by a reexami-
36       nation fee of $3, except that any applicant who fails to pass the
37       written or driving portion of an examination four times within a six-
38       month period, shall be required to wait a period of six months from
39       the date of the last failed examination before additional examina-
40       tions may be given. Upon the filing of such application and the
41       payment of such reexamination fee, the applicant shall be entitled
42       to reexamination in like manner and subject to the additional fees
43       and time limitation as provided for examination on an original ap-


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  1       plication. If the applicant passes the reexamination, the applicant
  2       shall be issued the classified driver's license for which the applicant
  3       originally applied, which license shall be issued to expire as if the
  4       applicant had passed the original examination.
  5             [(b)  (1) For the purposes of obtaining any driver's license, an
  6       applicant, except for any applicant under 16 years of age, shall provide
  7       at least two of the documents specified in K.S.A. 8-246, and amendments
  8       thereto. Any applicant under 16 years of age shall provide at least one of
  9       the documents specified in K.S.A. 8-246, and amendments thereto, which
10       shall contain the date of birth of the applicant and such applicant's parent
11       or guardian shall sign the application for any driver's license shall submit,
12       with the application, proof of age or proof of identity, or both, as the
13       division may require.
14             [(2) An applicant who submits proof of age or of identity issued by
15       an entity other than a state or the United States shall also submit such
16       proof as the division may require that the applicant is lawfully present in
17       the United States.
18             [(3) The division shall not issue any driver's license to any person
19       who is not lawfully present in the United States.
20             [(4) The division shall not issue any driver's license to any person
21       who is not a resident of the state of Kansas, except as provided in K.S.A.
22       1999 Supp. 8-2,148, and amendments thereto.
23             [(5) The parent or guardian of an applicant under 16 years of age
24       shall sign the application for any driver's license submitted by such
25       applicant.
26             [(c) Every application shall state the name, date of birth, sex
27       and residence address of the applicant, and briefly describe the ap-
28       plicant, and shall state whether the applicant has theretofore been
29       licensed as a driver, and, if so, when and by what state or country,
30       and whether any such license has ever been suspended or revoked,
31       or whether an application has ever been refused, and, if so, the date
32       of and reason for such suspension, revocation or refusal. In addition
33       to the above criteria, applications for commercial drivers' licenses
34       and instruction permits for commercial licenses must include the
35       following: The applicant's social security number; the person's sig-
36       nature; the person's color photograph; certifications, including
37       those required by 49 C.F.R. 383.71(a), effective January 1, 1991; a
38       consent to release driving record information; and, any other infor-
39       mation required by the division.
40             [(d) When an application is received from a person previously
41       licensed in another jurisdiction, the division shall request a copy of
42       the driver's record from the other jurisdiction. When received, the
43       driver's record shall become a part of the driver's record in this


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  1       state with the same force and effect as though entered on the driver's
  2       record in this state in the original instance.
  3             [(e) When the division receives a request for a driver's record
  4       from another licensing jurisdiction the record shall be forwarded
  5       without charge.
  6             [(f) A fee shall be charged as follows:
  7             [(1) For a class C driver's license issued to a person at least 21
  8       years of age, but less than 65 years of age, $12;
  9             [(2) for a class C driver's license issued to a person less than 21
10       years of age or 65 years of age or older, or a farm permit, $8;
11             [(3) for a class M driver's license issued to a person at least 21
12       years of age, but less than 65 years of age, $6.50;
13             [(4) for a class M driver's license issued to a person less than 21
14       years of age or 65 years of age or older, $5;
15             [(5) for a class A or B driver's license issued to a person who is
16       at least 21 years of age, but less than 65 years of age, $18;
17             [(6) for a class A or B driver's license issued to a person less
18       than 21 years of age or 65 years of age or older, $12; or
19             [(7) for any class of commercial driver's license, $14.
20             [A fee of $10 shall be charged for each commercial driver's license
21       endorsement, except air brake endorsements which shall have no
22       charge.
23             [If one fails to make an original application or renewal applica-
24       tion for a driver's license within the time required by law, or fails
25       to make application within 60 days after becoming a resident of
26       Kansas, a penalty of $1 shall be added to the fee charged for the
27       driver's license.]
28             Section  1. [Sec. 4.] K.S.A. 1999 Supp. 8-241 is hereby amended to
29       read as follows: 8-241. (a) Except as provided in K.S.A. 8-2,125 through
30       8-2,142, and amendments thereto, any person licensed to operate a motor
31       vehicle in this state shall submit to an examination whenever: (1) The
32       division of vehicles has good cause to believe that such person is incom-
33       petent or otherwise not qualified to be licensed; or (2) the division of
34       vehicles has suspended such person's license pursuant to K.S.A. 8-1014,
35       and amendments thereto, as the result of a test refusal, test failure or
36       conviction for a violation of K.S.A. 8-1567, and amendments thereto, or
37       a violation of city ordinance or county resolution prohibiting the acts
38       prohibited by K.S.A. 8-1567 and amendments thereto, except that no
39       person shall have to submit to and successfully complete an examination
40       more than once as the result of separate suspensions arising out of the
41       same occurrence.
42             (b) When a person is required to submit to an examination pursuant
43       to subsection (a)(1), the fee for such examination shall be in the amount


8

  1       provided by K.S.A 8-240, and amendments thereto. When a person is
  2       required to submit to an examination pursuant to subsection (a)(2), the
  3       fee for such examination shall be $5. In addition, any person required to
  4       submit to an examination pursuant to subsection (a)(2) shall be required,
  5       at the time of examination, to pay a reinstatement fee of $50 $100 after
  6       the first occurrence, $200 after the second occurrence, $300 after the third
  7       occurrence and $400 after the fourth or subsequent occurrence. All ex-
  8       amination fees collected pursuant to this section shall be disposed of as
  9       provided in K.S.A. 8-267, and amendments thereto. All reinstatement
10       fees collected pursuant to this section shall be remitted to the state trea-
11       surer, who shall deposit the entire amount in the state treasury and credit
12       50% to the community alcoholism and intoxication programs fund created
13       pursuant to K.S.A. 41-1126, and amendments thereto, 20% to the juvenile
14       detention facilities fund created by K.S.A. 79-4803, and amendments
15       thereto, 20% to the forensic laboratory and materials fee fund cited in
16       K.S.A. 28-176, and amendments thereto, and 10% to the driving under
17       the influence equipment fund created by K.S.A. 75-5660, and amend-
18       ments thereto. Moneys credited to the forensic laboratory and materials
19       fee fund as provided herein shall be used to supplement existing appro-
20       priations and shall not be used to supplant general fund appropriations
21       to the Kansas bureau of investigation.
22             (c) When an examination is required pursuant to subsection (a), at
23       least five days' written notice of the examination shall be given to the
24       licensee. The examination administered hereunder shall be at least equiv-
25       alent to the examination required by subsection (e) of K.S.A. 8-247, and
26       amendments thereto, with such additional tests as the division deems
27       necessary. Upon the conclusion of such examination, the division shall
28       take action as may be appropriate and may suspend or revoke the license
29       of such person or permit the licensee to retain such license, or may issue
30       a license subject to restrictions as permitted under K.S.A. 8-245, and
31       amendments thereto.
32             (d) Refusal or neglect of the licensee to submit to an examination as
33       required by this section shall be grounds for suspension or revocation of
34       the license.
35             Sec.  2. [5.] K.S.A. 1999 Supp. 8-1002 is hereby amended to read as
36       follows: 8-1002. (a) Whenever a test is requested pursuant to this act and
37       results in either a test failure or test refusal, a law enforcement officer's
38       certification shall be prepared. If the person had been driving a com-
39       mercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments
40       thereto, a separate certification pursuant to K.S.A. 8-2,145 and amend-
41       ments thereto shall be prepared in addition to any certification required
42       by this section. The certification required by this section shall be signed
43       by one or more officers to certify:


9

  1             (1) With regard to a test refusal, that: (A) There existed reasonable
  2       grounds to believe the person was operating or attempting to operate a
  3       vehicle while under the influence of alcohol or drugs, or both, or to be-
  4       lieve that the person had been driving a commercial motor vehicle, as
  5       defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol
  6       or other drugs in such person's system; (B) the person had been placed
  7       under arrest, was in custody or had been involved in a vehicle accident
  8       or collision; (C) a law enforcement officer had presented the person with
  9       the oral and written notice required by K.S.A. 8-1001, and amendments
10       thereto; and (D) the person refused to submit to and complete a test as
11       requested by a law enforcement officer.
12             (2) With regard to a test failure, that: (A) There existed reasonable
13       grounds to believe the person was operating a vehicle while under the
14       influence of alcohol or drugs, or both, or to believe that the person had
15       been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128,
16       and amendments thereto, while having alcohol or other drugs in such
17       person's system; (B) the person had been placed under arrest, was in
18       custody or had been involved in a vehicle accident or collision; (C) a law
19       enforcement officer had presented the person with the oral and written
20       notice required by K.S.A. 8-1001, and amendments thereto; and (D) the
21       result of the test showed that the person had an alcohol concentration of
22       .08 or greater in such person's blood or breath.
23             (3) With regard to failure of a breath test, in addition to those matters
24       required to be certified under subsection (a)(2), that: (A) The testing
25       equipment used was certified by the Kansas department of health and
26       environment; (B) the testing procedures used were in accordance with
27       the requirements set out by the Kansas department of health and envi-
28       ronment; and (C) the person who operated the testing equipment was
29       certified by the Kansas department of health and environment to operate
30       such equipment.
31             (b) For purposes of this section, certification shall be complete upon
32       signing, and no additional acts of oath, affirmation, acknowledgment or
33       proof of execution shall be required. The signed certification or a copy
34       or photostatic reproduction thereof shall be admissible in evidence in all
35       proceedings brought pursuant to this act, and receipt of any such certi-
36       fication, copy or reproduction shall accord the department authority to
37       proceed as set forth herein. Any person who signs a certification submit-
38       ted to the division knowing it contains a false statement is guilty of a class
39       B nonperson misdemeanor.
40             (c) When the officer directing administration of the testing deter-
41       mines that a person has refused a test and the criteria of subsection (a)(1)
42       have been met or determines that a person has failed a test and the criteria
43       of subsection (a)(2) have been met, the officer shall serve upon the person


10

  1       notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and
  2       amendments thereto. If the determination is made while the person is
  3       still in custody, service shall be made in person by the officer on behalf
  4       of the division of vehicles. In cases where a test failure is established by
  5       a subsequent analysis of a breath, blood or urine sample, the officer shall
  6       serve notice of such suspension in person or by another designated officer
  7       or by mailing the notice to the person at the address provided at the time
  8       of the test.
  9             (d) In addition to the information required by subsection (a), the law
10       enforcement officer's certification and notice of suspension shall contain
11       the following information: (1) The person's name, driver's license number
12       and current address; (2) the reason and statutory grounds for the suspen-
13       sion; (3) the date notice is being served and a statement that the effective
14       date of the suspension shall be the 30th calendar day after the date of
15       service; (4) the right of the person to request an administrative hearing;
16       and (5) the procedure the person must follow to request an administrative
17       hearing. The law enforcement officer's certification and notice of suspen-
18       sion shall also inform the person that all correspondence will be mailed
19       to the person at the address contained in the law enforcement officer's
20       certification and notice of suspension unless the person notifies the di-
21       vision in writing of a different address or change of address. The address
22       provided will be considered a change of address for purposes of K.S.A.
23       8-248, and amendments thereto, if the address furnished is different from
24       that on file with the division.
25             (e) If a person refuses a test or if a person is still in custody when it
26       is determined that the person has failed a test, the officer shall take any
27       license in the possession of the person and, if the license is not expired,
28       suspended, revoked or canceled, shall issue a temporary license effective
29       until the 30th calendar day after the date of service set out in the law
30       enforcement officer's certification and notice of suspension. If the test
31       failure is established by a subsequent analysis of a breath or blood sample,
32       the temporary license shall be served together with the copy of the law
33       enforcement officer's certification and notice of suspension. A temporary
34       license issued pursuant to this subsection shall bear the same restrictions
35       and limitations as the license for which it was exchanged. Within five days
36       after the date of service of a copy of the law enforcement officer's certi-
37       fication and notice of suspension the officer's certification and notice of
38       suspension, along with any licenses taken, shall be forwarded to the
39       division.
40             (f) Upon receipt of the law enforcement officer's certification, the
41       division shall review the certification to determine that it meets the
42       requirements of subsection (a). Upon so determining, the division shall
43       proceed to suspend the person's driving privileges in accordance with the


11

  1       notice of suspension previously served. If the requirements of subsection
  2       (a) are not met, the division shall dismiss the administrative proceeding
  3       and return any license surrendered by the person.
  4             (g) If the person mails a written request which is postmarked within
  5       10 days after service of the notice, if by personal service, or 13 days after
  6       service, if by mail, the division shall schedule a hearing in the county
  7       where the alleged violation occurred, or in a county adjacent thereto. The
  8       licensee may request that subpoenas be issued in accordance with the
  9       notice provided pursuant to subsection (d). Any request made by the
10       licensee to subpoena witnesses must be made in writing at the time the
11       hearing is requested and must include the name and current address of
12       such witnesses and, except for the law enforcement officer or officers
13       certifying refusal or failure, a statement of how the testimony of such
14       witness is relevant. Upon receiving a timely request for a hearing, the
15       division shall mail to the person notice of the time, date and place of
16       hearing in accordance with subsection (l) and extend the person's tem-
17       porary driving privileges until the date set for the hearing by the division.
18             (h)  (1) If the officer certifies that the person refused the test, the
19       scope of the hearing shall be limited to whether: (A) A law enforcement
20       officer had reasonable grounds to believe the person was operating or
21       attempting to operate a vehicle while under the influence of alcohol or
22       drugs, or both, or to believe that the person had been driving a com-
23       mercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments
24       thereto, while having alcohol or other drugs in such person's system; (B)
25       the person was in custody or arrested for an alcohol or drug related of-
26       fense or was involved in a vehicle accident or collision resulting in prop-
27       erty damage, personal injury or death; (C) a law enforcement officer had
28       presented the person with the oral and written notice required by K.S.A.
29       8-1001, and amendments thereto; and (D) the person refused to submit
30       to and complete a test as requested by a law enforcement officer.
31             (2) If the officer certifies that the person failed the test, the scope of
32       the hearing shall be limited to whether: (A) A law enforcement officer
33       had reasonable grounds to believe the person was operating a vehicle
34       while under the influence of alcohol or drugs, or both, or to believe that
35       the person had been driving a commercial motor vehicle, as defined in
36       K.S.A. 8-2,128, and amendments thereto, while having alcohol or other
37       drugs in such person's system; (B) the person was in custody or arrested
38       for an alcohol or drug related offense or was involved in a vehicle accident
39       or collision resulting in property damage, personal injury or death; (C) a
40       law enforcement officer had presented the person with the oral and writ-
41       ten notice required by K.S.A. 8-1001, and amendments thereto; (D) the
42       testing equipment used was reliable; (E) the person who operated the
43       testing equipment was qualified; (F) the testing procedures used were


12

  1       reliable; (G) the test result determined that the person had an alcohol
  2       concentration of .08 or greater in such person's blood or breath; and (H)
  3       the person was operating a vehicle.
  4             (i) At a hearing pursuant to this section, or upon court review of an
  5       order entered at such a hearing, an affidavit of the custodian of records
  6       at the Kansas department of health and environment stating that the
  7       breath testing device was certified and the operator of such device was
  8       certified on the date of the test shall be admissible into evidence in the
  9       same manner and with the same force and effect as if the certifying officer
10       or employee of the Kansas department of health and environment had
11       testified in person. Such affidavit shall be admitted to prove such relia-
12       bility without further foundation requirement. A certified operator of a
13       breath testing device shall be competent to testify regarding the proper
14       procedures to be used in conducting the test.
15             (j) At a hearing pursuant to this section, or upon court review of an
16       order entered at such hearing, in which the report of blood test results
17       have been prepared by the Kansas bureau of investigation or other fo-
18       rensic laboratory of a state or local law enforcement agency are to be
19       introduced as evidence, the report, or a copy of the report, of the findings
20       of the forensic examiner shall be admissible into evidence in the same
21       manner and with the same force and effect as if the forensic examiner
22       who performed such examination, analysis, comparison or identification
23       and prepared the report thereon had testified in person.
24             (k) If no timely request for hearing is made, the suspension period
25       imposed pursuant to this section shall begin upon the expiration of the
26       temporary license granted under subsection (e). If a timely request for
27       hearing is made, the hearing shall be held within 30 days of the date the
28       request for hearing is received by the division, except that failure to hold
29       such hearing within 30 days shall not be cause for dismissal absent a
30       showing of prejudice. At the hearing, the director or the representative
31       of the director, shall either affirm the order of suspension or suspension
32       and restriction or dismiss the administrative action. If the division is un-
33       able to hold a hearing within 30 days of the date upon which the request
34       for hearing is received, the division shall extend the person's temporary
35       driving privileges until the date set for the hearing by the division. No
36       extension of temporary driving privileges shall be issued for continuances
37       requested by or on behalf of the licensee. If the person whose privileges
38       are suspended is a nonresident licensee, the license of the person shall
39       be forwarded to the appropriate licensing authority in the person's state
40       of residence if the result at the hearing is adverse to such person or if no
41       timely request for a hearing is received.
42             (l) All notices affirming or canceling a suspension under this section,
43       all notices of a hearing held under this section and all issuances of tem-


13

  1       porary driving privileges pursuant to subsection (k) shall be sent by first-
  2       class mail and a U.S. post office certificate of mailing shall be obtained
  3       therefor. All notices so mailed shall be deemed received three days after
  4       mailing.
  5             (m) (g) The division shall prepare and distribute forms for use by law
  6       enforcement officers in giving the notice required by this section.
  7             (n) This section and the applicable provisions contained in subsec-
  8       tions (d) and (e) of K.S.A. 8-255 and amendments thereto constitute the
  9       administrative procedures to be used for all administrative hearings held
10       under this act. To the extent that this section and any other provision of
11       law conflicts, this section prevails.
12             (o) (h) The provisions of K.S.A. 60-206 and amendments thereto re-
13       garding the computation of time shall not be applicable in determining
14       the effective date of suspension set out in subsection (d) or the time for
15       requesting an administrative hearing set out in subsection (g). ``Calendar
16       day'' when used in this section act shall mean that every day shall be
17       included in computations of time whether a week day, Saturday, Sunday
18       or holiday.
19             Sec.  3. [6.] K.S.A. 1999 Supp. 8-1014 is hereby amended to read as
20       follows: 8-1014. (a) Except as provided by subsection (e) and K.S.A. 8-
21       2,142, and amendments thereto, if a person refuses a test, the division,
22       pursuant to K.S.A. 8-1002, and amendments thereto, shall suspend the
23       person's driving privileges for one year.
24             (b) Except as provided by subsections (c) and (e) and K.S.A. 8-2,142,
25       and amendments thereto, if a person fails a test or has an alcohol or drug-
26       related conviction in this state, the division shall:
27             (1) On the person's first occurrence, suspend the person's driving
28       privileges for 30 days, then restrict the person's driving privileges as pro-
29       vided by K.S.A. 8-1015, and amendments thereto, for an additional 330
30       days; and
31             (2) on the person's second or a subsequent occurrence, suspend the
32       person's driving privileges for one year.
33             (c) Except as provided by subsection (e) and K.S.A. 8-2,142, and
34       amendments thereto, if a person who is less than 21 years of age fails a
35       test or has an alcohol or drug-related conviction in this state, the division
36       shall:
37             (1) On the person's first occurrence, suspend the person's driving
38       privileges for at least 60 days but not more than one year;
39             (2) on the person's second or a subsequent occurrence suspend the
40       person's driving privileges for one year; or
41             (2) (3) if such person has entered a diversion agreement under K.S.A.
42       12-4412 et seq., and amendments thereto, or K.S.A. 22-2906 et seq., and
43       amendments thereto, suspend the person's driving privileges for the term


14

  1       of such diversion agreement.
  2             (d) Whenever the division is notified by an alcohol and drug safety
  3       action program that a person has failed to complete any alcohol and drug
  4       safety action education or treatment program ordered by a court for a
  5       conviction of a violation of K.S.A. 8-1567, and amendments thereto, the
  6       division shall suspend the person's driving privileges until the division
  7       receives notice of the person's completion of such program.
  8             (e) Except as provided in K.S.A. 8-2,142, and amendments thereto,
  9       if a person's driving privileges are subject to suspension pursuant to this
10       section for a test refusal, test failure or alcohol or drug-related conviction
11       arising from the same arrest, the period of such suspension shall not
12       exceed the longest applicable period authorized by subsection (a), (b) or
13       (c), and such suspension periods shall not be added together or otherwise
14       imposed consecutively. In addition, in determining the period of such
15       suspension as authorized by subsection (a), (b) or (c), such person shall
16       receive credit for any period of time for which such person's driving
17       privileges were suspended while awaiting any hearing or final order au-
18       thorized by this act.
19             If a person's driving privileges are subject to restriction pursuant to
20       this section for a test failure or alcohol or drug-related conviction arising
21       from the same arrest, the restriction periods shall not be added together
22       or otherwise imposed consecutively. In addition, in determining the pe-
23       riod of restriction, the person shall receive credit for any period of sus-
24       pension imposed for a test refusal arising from the same arrest.
25             (f) If the division has taken action under subsection (a) for a test
26       refusal or under subsection (b) or (c) for a test failure and such action is
27       stayed pursuant to K.S.A. 8-259, and amendments thereto, or if tempo-
28       rary driving privileges are issued pursuant to subsection (k) of K.S.A. 8-
29       1002, and amendments thereto, the stay or temporary driving privileges
30       shall not prevent the division from taking the action required by subsec-
31       tion (b) or (c) for an alcohol or drug-related conviction.
32             (g) Upon restricting a person's driving privileges pursuant to this sec-
33       tion, the division shall issue without charge a driver's license which shall
34       indicate on the face of the license that restrictions have been imposed on
35       the person's driving privileges and that a copy of the order imposing the
36       restrictions is required to be carried by the person for whom the license
37       was issued any time the person is operating a motor vehicle on the high-
38       ways of this state.
39        [Sec.  7. K.S.A. 8-1324 is hereby amended to read as follows: 8-
40       1324. (a) Any resident may make application to the division of ve-
41       hicles and be issued one identification card, certified by the regis-
42       trant and attested by the division as to true name, correct age,
43       photograph and other identifying data as the division may require.


15

  1       Every application for an identification card shall be signed and
  2       verified by the applicant and shall contain such bona fide docu-
  3       mentary evidence of the age and identity of such applicant as the
  4       division may require. The applicant, except for any applicant under 16
  5       years of age, shall provide at least two of the documents specified in
  6       K.S.A. 8-1326, and amendments thereto. Any applicant under 16 years
  7       of age shall provide at least one of the documents specified in K.S.A. 8-
  8       1326, and amendments thereto, and the applicant's parent or guardian
  9       shall sign the application for the identification card.
10             [(b) An applicant who submits documentary evidence under subsec-
11       tion (a), issued by an entity other than a state or the United States shall
12       also submit such proof as the division may require that the applicant is
13       lawfully present in the United States.
14             [(c) The division shall not issue an identification card to any person
15       who is not lawfully present in the United States.
16             [(d) The parent or guardian of an applicant under 16 years of age
17       shall sign the application for an identification card submitted by such
18       applicant.
19             [(e) The division shall require payment of a fee of $6 $8 at the
20       time application for an identification card is made, except that per-
21       sons who are 65 or more years of age or who are handicapped, as
22       defined in K.S.A. 8-1,124, and amendments thereto, shall be re-
23       quired to pay a fee of only $2 $4.
24             [(b) (f) For the purposes of K.S.A. 8-1324 through 8-1328, and
25       amendments thereto, a person shall be deemed to be a resident of
26       the state if:
27             [(1) The person owns, leases or rents a place of domicile in this
28       state;
29             [(2) the person engages in a trade, business or profession in this
30       state;
31             [(3) the person is registered to vote in this state;
32             [(4) the person enrolls the person's child in a school in this state;
33       or
34             [(5) the person registers the person's motor vehicle in this state.
35             [Sec.  8. K.S.A. 8-1332 is hereby amended to read as follows: 8-
36       1332. (a) When used in reference to an identification card, ``can-
37       cellation'' means that an identification card is terminated without
38       prejudice and must be surrendered. Cancellation of a card may be
39       made when such card has been issued through error, because the
40       person is not entitled to a card or when voluntarily surrendered to the
41       division.
42             [(b) The division is hereby authorized to cancel any identification
43       card upon determining that the cardholder was not entitled to the issuance


16

  1       of such card or that the cardholder failed to give the required or correct
  2       information in such person's application or committed any fraud in mak-
  3       ing such application.
  4             [(c) Upon cancellation of an identification card the cardholder must
  5       surrender the identification card so canceled to the division.]
  6             Sec.  4. [9.] K.S.A. 1999 Supp. 8-1567a is hereby amended to read
  7       as follows: 8-1567a. (a) It shall be unlawful for any person less than 21
  8       years of age to operate or attempt to operate a vehicle in this state with
  9       a breath or blood alcohol content of .02 or greater.
10             (b) Whenever a law enforcement officer determines that a breath or
11       blood alcohol test is to be required of a person less than 21 years of age
12       pursuant to K.S.A. 8-1001 or K.S.A. 8-2,142 and amendments thereto, in
13       addition to any other notices required by law, the law enforcement officer
14       shall provide written and oral notice that: (1) It is unlawful for any person
15       less than 21 years of age to operate or attempt to operate a vehicle in this
16       state with a breath or blood alcohol content of .02 or greater; and (2) if
17       the person is less than 21 years of age at the time of the test request and
18       submits to and completes the test or tests and the test results show an
19       alcohol concentration of .02 or greater, the person's driving privileges will
20       be suspended for at least 60 days but not more than one year.
21             (c) Any suspension and restriction of driving privileges pursuant to
22       this section shall be in addition to any disqualification from driving a
23       commercial motor vehicle pursuant to K.S.A. 8-2,142 and amendments
24       thereto.
25             (d) Whenever a breath or blood alcohol test is requested pursuant to
26       K.S.A. 8-1001 and amendments thereto, from a person less than 21 years
27       of age, and results in a test result of .02 or greater, but less than .08, a
28       law enforcement officer's certification under this section shall be pre-
29       pared. The certification required by this section shall be signed by one
30       or more officers to certify that:
31             (1)  (A) There existed reasonable grounds to believe the person was
32       operating a vehicle while under the influence of alcohol or drugs, or both,
33       or to believe that the person had been driving a commercial motor ve-
34       hicle, as defined in K.S.A. 8-2,128 and amendments thereto, while having
35       alcohol or other drugs in such person's system; (B) the person had been
36       placed under arrest, was in custody or had been involved in a vehicle
37       accident or collision; (C) a law enforcement officer had presented the
38       person with the oral and written notice required by K.S.A. 8-1001 and
39       amendments thereto, and the oral and written notice required by this
40       section; (D) that the person was less than 21 years of age at the time of
41       the test request; and (E) the result of the test showed that the person
42       had an alcohol concentration of .02 or greater in such person's blood or
43       breath.


17

  1             (2) With regard to a breath test, in addition to those matters required
  2       to be certified under subsection (d)(1), that: (A) The testing equipment
  3       used was certified by the Kansas department of health and environment;
  4       (B) the testing procedures used were in accordance with the require-
  5       ments set out by the Kansas department of health and environment; and
  6       (C) the person who operated the testing equipment was certified by the
  7       Kansas department of health and environment to operate such
  8       equipment.
  9             (e) If a hearing is requested as a result of a law enforcement officer's
10       certification under this section, the scope of the hearing shall be limited
11       to whether: (1) A law enforcement officer had reasonable grounds to
12       believe the person was operating a vehicle while under the influence of
13       alcohol or drugs, or both, or to believe that the person had been driving
14       a commercial motor vehicle, as defined in K.S.A. 8-2,128 and amend-
15       ments thereto, while having alcohol or other drugs in such person's sys-
16       tem; (2) the person was in custody or arrested for an alcohol or drug
17       related offense or was involved in a motor vehicle accident or collision
18       resulting in property damage, personal injury or death; (3) a law enforce-
19       ment officer had presented the person with the oral and written notice
20       required by K.S.A. 8-1001 and amendments thereto, and the oral and
21       written notice required by this section; (4) the testing equipment used
22       was reliable; (5) the person who operated the testing equipment was
23       qualified; (6) the testing procedures used were reliable; (7) the test result
24       determined that the person had an alcohol concentration of .02 or greater
25       in such person's blood or breath; (8) the person was operating a vehicle;
26       and (9) the person was less than 21 years of age at the time a test was
27       requested.
28             (f) If a person less than 21 years of age submits to a breath or blood
29       alcohol test requested pursuant to K.S.A. 8-1001 or K.S.A. 8-2,142 and
30       amendments thereto, and produces a test result of .02 or greater, but less
31       than .08, the person's driving privileges shall be suspended for at least 60
32       days but not more than one year.
33             (g) Except where there is a conflict between this section and K.S.A.
34       8-1001 and 8-1002 and amendments thereto, the provisions of K.S.A. 8-
35       1001 and 8-1002 and amendments thereto, shall be applicable to pro-
36       ceedings under this section.
37             (h) Any determination under this section that a person less than 21
38       years of age had a test result of .02 or greater, but less than .08, and any
39       resulting administrative action upon the person's driving privileges, upon
40       the first occurrence of such test result and administrative action, shall not
41       be considered by any insurance company in determining the rate charged
42       for any automobile liability insurance policy or whether to cancel any such
43       policy under the provisions of subsection (4)(a) of K.S.A. 40-277 and


18

  1       amendments thereto.
  2             New Sec.  5. [10.] (a) Any licensee served with an officer's certifi-
  3       cation and notice of suspension pursuant to K.S.A. 8-1002, and amend-
  4       ments thereto, may request an administrative hearing. Such request may
  5       be made either by:
  6             (1) Mailing a written request which is postmarked 10 calendar days
  7       after service of notice, if such notice was given by personal service;
  8             (2) mailing a written request which is postmarked 13 calendar days
  9       after service of notice, if such notice was given by mail; or
10             (3) transmitting a written request by electronic facsimile which is re-
11       ceived by the division within 10 calendar days after service of the notice,
12       if such notice was given by personal service; or
13             (4) transmitting a written request by electronic facsimile which is re-
14       ceived by the division within 13 calendar days after service, if such notice
15       was given by mail.
16             (b) If the licensee makes a timely request for an administrative hear-
17       ing, any temporary license issued pursuant to K.S.A. 8-1002, and amend-
18       ments thereto, shall remain in effect until the 30th calendar day after the
19       effective date of the decision made by the division.
20             (c) If the licensee fails to make a timely request for an administrative
21       hearing, the licensee's driving privileges shall be suspended or suspended
22       and then restricted in accordance with the notice of suspension served
23       pursuant to K.S.A. 8-1002, and amendments thereto.
24             (d) Upon receipt of a timely request for a hearing, the division shall
25       forthwith set the matter for hearing before a representative of the director
26       and provide notice of the extension of temporary driving privileges. The
27       hearing shall be conducted in the county where the arrest occurred or a
28       county adjacent thereto. At the discretion of the division, the hearing may
29       be conducted by telephone or video conference call.
30             (e) Except as provided in subsection (f), prehearing discovery shall
31       be limited to the following documents, which shall be provided to the
32       licensee or the licensee's attorney no later than five calendar days prior
33       to the date of the hearing:
34             (1) The officer's certification and notice of suspension;
35             (2) in the case of a breath or blood test failure, copies of documents
36       indicating the result of any evidentiary breath or blood test administered
37       at the request of a law enforcement officer;
38             (3) in the case of a breath test failure, a copy of the affidavit showing
39       certification of the officer and the instrument; and
40             (4) in the case of a breath test failure, a copy of the Kansas depart-
41       ment of health and environment testing protocol checklist.
42             (f) At or prior to the time the notice of hearing is sent, the division
43       shall issue an order allowing the licensee or the licensee's attorney to


19

  1       review any video or audio tape record made of the events upon which
  2       the administrative action is based. Such review shall take place at a rea-
  3       sonable time designated by the law enforcement agency and shall be
  4       made at the location where the video or audio tape is kept. The licensee
  5       may obtain a copy of any such video or audio tape upon request and upon
  6       payment of a reasonable fee to the law enforcement agency, not to exceed
  7       $25 per tape.
  8             (g) Witnesses at the hearing shall be limited to the licensee and to
  9       any law enforcement officer who signed the certification form. The pres-
10       ence of the certifying officer or officers shall not be required, unless
11       requested by the licensee at the time of making the request for the hear-
12       ing. The examination of a law enforcement officer shall be restricted to
13       the factual circumstances relied upon in the officer's certification.
14             (h)  (1) If the officer certifies that the person refused the test, the
15       scope of the hearing shall be limited to whether:
16             (A) A law enforcement officer had reasonable grounds to believe the
17       person was operating or attempting to operate a vehicle while under the
18       influence of alcohol or drugs, or both, or had been driving a commercial
19       motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto,
20       while having alcohol or other drugs in such person's system;
21             (B) the person was in custody or arrested for an alcohol or drug re-
22       lated offense or was involved in a vehicle accident or collision resulting
23       in property damage, personal injury or death;
24             (C) a law enforcement officer had presented the person with the oral
25       and written notice required by K.S.A. 8-1001, and amendments thereto;
26       and
27             (D) the person refused to submit to and complete a test as requested
28       by a law enforcement officer.
29             (2) If the officer certifies that the person failed a breath test, the
30       scope of the hearing shall be limited to whether:
31             (A) A law enforcement officer had reasonable grounds to believe the
32       person was operating a vehicle while under the influence of alcohol or
33       drugs, or both, or had been driving a commercial motor vehicle, as de-
34       fined in K.S.A. 8-2,128, and amendments thereto, while having alcohol
35       or other drugs in such person's system;
36             (B) the person was in custody or arrested for an alcohol or drug re-
37       lated offense or was involved in a vehicle accident or collision resulting
38       in property damage, personal injury or death;
39             (C) a law enforcement officer had presented the person with the oral
40       and written notice required by K.S.A. 8-1001, and amendments thereto;
41             (D) the testing equipment used was certified by the Kansas depart-
42       ment of health and environment;
43             (E) the person who operated the testing equipment was certified by


20

  1       the Kansas department of health and environment;
  2             (F) the testing procedures used substantially complied with the pro-
  3       cedures set out by the Kansas department of health and environment;
  4             (G) the test result determined that the person had an alcohol con-
  5       centration of .08 or greater in such person's breath; and
  6             (H) the person was operating or attempting to operate a vehicle.
  7             (3) If the officer certifies that the person failed a blood test, the scope
  8       of the hearing shall be limited to whether:
  9             (A) A law enforcement officer had reasonable grounds to believe the
10       person was operating a vehicle while under the influence of alcohol or
11       drugs, or both, or had been driving a commercial motor vehicle, as de-
12       fined in K.S.A. 8-2,128, and amendments thereto, while having alcohol
13       or other drugs in such person's system;
14             (B) the person was in custody or arrested for an alcohol or drug re-
15       lated offense or was involved in a vehicle accident or collision resulting
16       in property damage, personal injury or death;
17             (C) a law enforcement officer had presented the person with the oral
18       and written notice required by K.S.A. 8-1001, and amendments thereto;
19             (D) the testing equipment used was reliable;
20             (E) the person who operated the testing equipment was qualified;
21             (F) the testing procedures used were reliable;
22             (G) the test result determined that the person had an alcohol con-
23       centration of .08 or greater in such person's blood; and
24             (H) the person was operating or attempting to operate a vehicle.
25             (i) At a hearing pursuant to this section, or upon court review of an
26       order entered at such a hearing, an affidavit of the custodian of records
27       at the Kansas department of health and environment stating that the
28       breath testing device was certified and the operator of such device was
29       certified on the date of the test shall be admissible into evidence in the
30       same manner and with the same force and effect as if the certifying officer
31       or employee of the Kansas department of health and environment had
32       testified in person. A certified operator of a breath testing device shall be
33       competent to testify regarding the proper procedures to be used in con-
34       ducting the test.
35             (j) At a hearing pursuant to this section, or upon court review of an
36       order entered at such hearing, in which the report of blood test results
37       have been prepared by the Kansas bureau of investigation or other fo-
38       rensic laboratory of a state or local law enforcement agency are to be
39       introduced as evidence, the report, or a copy of the report, of the findings
40       of the forensic examiner shall be admissible into evidence in the same
41       manner and with the same force and effect as if the forensic examiner
42       who performed such examination, analysis, comparison or identification
43       and prepared the report thereon had testified in person.


21

  1             (k) At the hearing, the licensee has the burden of proof by a prepon-
  2       derance of the evidence to show that the facts set out in the officer's
  3       certification are false or insufficient and that the order suspending or
  4       suspending and restricting the licensee's driving privileges should be
  5       dismissed.
  6             (l) Evidence at the hearing shall be limited to the following:
  7             (1) The documents set out in paragraph (e) of this section;
  8             (2) the testimony of the licensee;
  9             (3) the testimony of any certifying officer;
10             (4) any affidavits submitted from other witnesses;
11             (5) any documents submitted by the licensee to show the existence
12       of a medical condition, as described in K.S.A. 8-1001, and amendments
13       thereto; and
14             (6) any video or audio tape record of the events upon which the ad-
15       ministrative action is based.
16             (m) After the hearing, the representative of the director shall enter
17       an order affirming the order of suspension or suspension and restriction
18       of driving privileges or for good cause appearing therefor, dismiss the
19       administrative action. If the representative of the director enters an order
20       affirming the order of suspension or suspension and restriction of driving
21       privileges, the suspension or suspension and restriction shall begin on the
22       30th day after the effective date of the order of suspension or suspension
23       and restriction. If the person whose privileges are suspended is a non-
24       resident licensee, the license of the person shall be forwarded to the
25       appropriate licensing authority in the person's state of residence if the
26       result at the hearing is adverse to such person or if no timely request for
27       a hearing is received.
28             (n) The representative of the director may issue an order at the close
29       of the hearing or may take the matter under advisement and issue a
30       hearing order at a later date. If the order is made at the close of the
31       hearing, the licensee or the licensee's attorney shall be served with a copy
32       of the order by the representative of the director. If the matter is taken
33       under advisement or if the hearing was by telephone or video conference
34       call, the licensee and any attorney who appeared at the administrative
35       hearing upon behalf of the licensee each shall be served with a copy of
36       the hearing order by mail. Any law enforcement officer who appeared at
37       the hearing also may be mailed a copy of the hearing order. The effective
38       date of the hearing order shall be the date upon which the hearing order
39       is served, whether served in person or by mail.
40             (o) The licensee may file a petition for review of the hearing order
41       pursuant to K.S.A. 8-259, and amendments thereto. Upon filing a petition
42       for review, the licensee shall serve the secretary of revenue with a copy
43       of the petition and summons. Upon receipt of a copy of the petition for


22

  1       review by the secretary, the temporary license issued pursuant to para-
  2       graph (b) of this section shall be extended until the decision on the pe-
  3       tition for review is final.
  4             (p) Such review shall be in accordance with this section and the act
  5       for judicial review and civil enforcement of agency actions. To the extent
  6       that this section and any other provision of law conflicts, this section shall
  7       prevail. The petition for review shall be filed within 10 days after the
  8       effective date of the order. Venue of the action for review is the county
  9       where the person was arrested or the accident occurred, or, if the hearing
10       was not conducted by telephone conference call, the county where the
11       administrative proceeding was held. The action for review shall be by trial
12       de novo to the court. [and the evidentiary restrictions of section 5(k)
13       shall not apply to the trial de novo.] The court shall take testimony,
14       examine the facts of the case and determine whether the petitioner is
15       entitled to driving privileges or whether the petitioner's driving privileges
16       are subject to suspension or suspension and restriction under the provi-
17       sions of this act. If the court finds that the grounds for action by the
18       agency have been met, the court shall affirm the agency action.
19             (q) Upon review, the licensee shall have the burden to show that the
20       decision of the agency should be set aside. To be raised upon review, an
21       issue shall have been raised at the administrative hearing and also shall
22       be set out in the petition for review. The court is not limited to any
23       evidentiary record created during the administrative hearing and may
24       accept additional evidence on the issues preserved for review. Except as
25       otherwise provided in this section, the court shall not rely upon evidence
26       contained in the record of the administrative proceeding below, absent
27       compliance upon review with the rules of evidence in a civil proceeding.
28             (r) Notwithstanding the requirement to issue a temporary license in
29       K.S.A. 8-1002, and amendments thereto, and the requirements to extend
30       the temporary license in this section, any such temporary driving privi-
31       leges are subject to restriction, suspension, revocation or cancellation as
32       provided in K.S.A. 8-1014, and amendments thereto, or for other cause.
33             (s) Upon motion by a party, or on the court's own motion, the court
34       may enter an order restricting the driving privileges allowed by the tem-
35       porary license provided for in K.S.A. 8-1002, and amendments thereto,
36       and in this section. The temporary license also shall be subject to restric-
37       tion, suspension, revocation or cancellation, as set out in K.S.A. 8-1014,
38       and amendments thereto, or for other cause.
39             (t) The facts found by the hearing officer or by the district court upon
40       a petition for review shall be independent of the determination of the
41       same or similar facts in the adjudication of any criminal charges arising
42       out of the same occurrence. The disposition of those criminal charges
43       shall not affect the suspension or suspension and restriction to be imposed


23

  1       under this section.
  2             (u) All notices affirming or canceling a suspension under this section,
  3       all notices of a hearing held under this section and all issuances of tem-
  4       porary driving privileges pursuant to this section shall be sent by first-
  5       class mail and a United States post office certificate of mailing shall be
  6       obtained therefor. All notices so mailed shall be deemed received three
  7       days after mailing.
  8             (v) The provisions of K.S.A. 60-206, and amendments thereto, re-
  9       garding the computation of time shall not be applicable in determining
10       the time for requesting an administrative hearing as set out in subsection
11       (a) but shall apply to the time for filing a petition for review pursuant to
12       subsection (o) and K.S.A. 8-259, and amendments thereto. ``Calendar
13       day'' shall mean that every day shall be included in computations of time
14       whether a week day, Saturday, Sunday or holiday. 
15       Sec.  6. [11.] K.S.A. 1999 Supp. [8-1324 and 8-1332 and K.S.A.
16       1999 Supp. 8-235d, 8-237, 8-240,] 8-241, 8-1002, 8-1014 and 8-1567a
17       are hereby repealed.
18        Sec.  7. [12.] This act shall take effect and be in force from and after
19       its publication in the statute book.