Memorandum                                                                 

City of Lawrence

City Attorney’s Office

 

TO:

David L. Corliss, City Manager

FROM:

Chad J. Sublet, Assistant City Attorney

Cc:

Toni Wheeler, City Attorney and Jerry Little, Supervising City Prosecutor

DATE:

June 11, 2012

RE:

Ordinance No. 8751: Changes to the current Operating Under the Influence Ordinance.

 

In the 2012 legislative session, The Kansas Legislature passed, and the Governor signed, SB60. SB60 requires that $250.00 of every fine imposed for violation of the Operating under the Influence (hereinafter “OUI”) of Alcohol or Drugs Ordinance adopted in Sec. 30 of the 2010 Standard Traffic Ordinance be sent to the State Treasurer. This change is a correction of the 2011 OUI Amendments.

 

In 2011, the State Legislature increased fines for all OUI’s from $250.00 to $500.00 and required District Court’s to send $250.00 to the State treasurer for the increase in cases monitored by Community Corrections. However, the intent was for both District and Municipal Court’s to send the $250.00 to the State Treasurer. The 2012 change specifically includes the requirement that Municipal Court send $250.00 of every OUI fine to the State treasurer. An ordinance is not required to reflect this change as Municipal Court will automatically comply with SB60 after July 1, 2012 to be in compliance with State law.

 

SB 60 also creates a new crime of refusing to submit to a test to determine the presence of alcohol or drugs when operating a motor vehicle. Under this section, it would be a crime to refuse to submit to or complete such a test if a person has a prior test refusal or a prior conviction for DUI or commercial DUI, any of which occurred (1) on or after July 1, 2001, and (2) when such person was at least 18 years of age. Thus, a first-time test refusal would not constitute criminal conduct unless a person has a previous DUI or commercial DUI conviction as

specified in the section. The penalties for a first conviction of test refusal would be the same as the penalties for a second DUI, the penalties for a second test refusal conviction would be the same as the penalties for a third DUI, and the penalties for a third or subsequent test refusal conviction would be the same as the penalties for a fourth or subsequent DUI conviction.

 

The evaluation and procedural requirements for this crime would be the same as those for DUI, as amended by this bill. The implied consent statute would be amended to include information regarding the test refusal crime in the oral and written notice given to persons subject to testing. In determining whether a test refusal conviction is a first, second, third, or subsequent conviction for sentencing under the new section, the following would count as a conviction, in addition to any convictions under the new section itself.

 

Convictions for DUI on or after July 1, 2001, and any lifetime convictions of commercial DUI, boating DUI, involuntary manslaughter while DUI, aggravated vehicular homicide, or vehicular battery while DUI. "Convictions" would include conviction of violation of a city ordinance, county resolution, or law of another state; a diversion agreement; or punishment under the Uniform Code of Military Justice or Kansas Code of Military Justice. Convictions before the offender reached the age of 18 would not be included in this calculation.

 

The bill would allow a person to obtain a class C license for the operation of a motorized bicycle if such person's driving privileges have been suspended for a first time DUI conviction. Further, a person whose license has been revoked for being a habitual violator could obtain a class C license, so long as in the last five years the person has not had a test refusal; test failure; "alcohol or drug related conviction," as defined in Kansas law; or conviction for fleeing or eluding a police officer. Chapter 17, Article 4, Section 17-104.11 of the Code of the City of Lawrence, Kansas, 2011 Edition and amendments thereto needs to be enacted to reflect these changes. The bill becomes effective upon publication in the Kansas Statutes on July 1, 2012.

 

ACTION REQUESTED

Adopt on first reading, Ordinance No. 8751, establishing the new crime of refusing to submit to a test for the presence of drugs or alcohol while operating a motor vehicle.