Brief ⁽¹⁾

SB 67 deals with the suspension or restoration of drivers licenses for driving under the influence (DUI) violations and contains the following provisions.

• Persons, either a nonresident or a person unlicensed to drive in Kansas, be subject to the same revocation or suspension of privileges as a driver with a Kansas driver's license would be subjected. For a nonresident, this means that the same restrictions (as a Kansas driver's license holder) would apply. For a nonlicensed driver, this means that, although the unlicensed driver would be eligible to apply for a driver's license, the privilege of obtaining a license would be suspended for the same amount of time as a licensed driver would have a suspension of driving privileges. This provision is a result of a recent Kansas Supreme Court case, State v. Victor L. Bowie, No. 82, 929, decided March 10, 2000, which stated that:
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Driving a motor vehicle in Kansas is a privilege and not a natural right, and that privilege has been granted only to licensed drivers and those who are exempt under KSA 8-236.

A person who has not been licensed to drive a motor vehicle in this state cannot be charged with driving while suspended in violation of KSA Supp. 8-262(a).

• Procedures are outlined for a licensee who fails or refuses a DUI to request an administrative hearing. These provisions replace portions of KSA 2000 Supp. 8-1002 which are stricken in the bill. Procedural provisions of the bill include the following:
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  • Gives the Division of Vehicles the discretion to set administrative hearings by telephone or video conference call. If this is not done by agreement, some sort of due process challenge may be claimed. Similar hearings in some other states are conducted by telephone or video conference.
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  • Limits the extent of discovery prior to the administrative hearing and requires that the licensee be provided the documents described.
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  • Allows licensees to obtain copies of video or audio tapes upon payment of "a reasonable fee, not to exceed $25 per tape."
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  • Limits the witnesses which can testify at the administrative hearing and also sets out a restriction upon examination of certifying officers.
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  • Sets out the issues to be addressed at hearings. The only change from present law involves breath test failures.
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  • Sets out limitations on evidence which can be considered at the administrative hearing. The main change from present law is that it allows the use of affidavits from other witnesses and the use of documents to show the evidence of a medical condition which prevents the completion of a test.
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  • Sets out rules affecting the filing of a petition for review in district court. The main change is that the temporary license is automatically extended upon service of a copy of the petition for review upon the Secretary of Revenue. Driving privileges automatically provided can, however, be restricted or suspended as a result of some other action, or by the court in the review action, either by motion of a party, or on the court's own motion.
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  • States the applicable burden of proof upon appeal to district court (which is not a change from present law) and also provides that evidentiary rules are to be applied to evidence submitted before the district court even if the same evidence had been admitted at the administrative hearing.
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• Incorporates Kansas case law which provides that a determination in an associated criminal matter does not have collateral estoppel effect upon an administrative proceeding or appeal therefrom.
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• Provides that under KSA 8-1567a, a person who is less than 21 years of age and has an alcohol content of .02 or greater but less than .08, on the person's first occurrence, shall have the person's driving privileges suspended for 30 days and restricted for an added 330 days. On the person's second or subsequent occurrences, driving privileges shall be suspended for one year. Current law provides for a one-year suspension in all of these cases.
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• Provides that an Ignition Interlock Device (IID) restricted licensee can drive an employer's vehicle without an IID if the licensee does not wholly or partially own the employer's business or vehicle.
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• Provides that after a test failure or refusal, when a one-year suspension is over, the licensee's driving privileges will be restricted to driving with an IID for one year.
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• Provides for specific authority to regulate IID vendors.
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• Provides for a 2 percent credit of manufacturers' gross program revenues for those persons who qualify for an IID but who are unable to afford the device.
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• Adds a provision under the DUI violation law for a suspension of "at least 60 days" but not more than one year. Current law is one year.
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• Increases the presentence evaluation fee, for DUI charges, from $125 to $150. This provision is from 2001 HB 2135.
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• Expands the grounds upon which a law enforcement officer shall have probable cause to believe a person is DUI to cover the situation in which a death or injury occurs. This provision can be found in SB 215.
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• Creates a class B misdemeanor criminal penalty for refusing to submit to a blood, breath, or urine test when lawfully requested to do so.

Background

The bill, as introduced, was requested by the Director of Vehicles of the Kansas Department of Revenue as a cleanup measure and to deal with the diversion discrepancy for drivers under 21 whose blood alcohol content is .08 or greater which could allow license suspension of less than one year.

Proponents of the Senate Committee amendments said that driver's license suspension periods for the under 21-year-old driver for greater than .02 but less than .08 for first offense violations should be on the same level as first offense violators over 21 who have a blood alcohol level of .08 or greater, i.e., 30 days' suspension and 330 days' restriction.

The bill has no fiscal impact.

The House amendment incorporates provisions of 2001 HB 2230.

1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/fulltext.cgi