Printable Format8-262. Driving while license canceled, suspended or revoked; criminal penalty; fine; confinement required in certain circumstances; extension of time of suspension or revocation. (a) (1) Except as provided in subsections (a)(3), (a)(4) and (c), any person who drives a motor vehicle on any highway of this state at a time when such person's privilege so to do is canceled, suspended or revoked or while such person's privilege to obtain a driver's license is suspended or revoked pursuant to K.S.A. 8-252a, and amendments thereto, shall be guilty of a class B nonperson misdemeanor on the first conviction and a class A nonperson misdemeanor on the second or subsequent conviction. In addition to any other criminal penalties provided by law, any person convicted of a violation of this section shall be subject to a fine of not less than $100.
(2) No person shall be convicted under this section if such person was entitled at the time of arrest under K.S.A. 8-257, and amendments thereto, to the return of such person's driver's license.
(3) Except as provided in subsection (a)(4) or (c), every person convicted of a violation of this section, committed while the person's privilege to drive or privilege to obtain a driver's license was suspended or revoked for any violation other than a violation of K.S.A. 8-2110, and amendments thereto, or any ordinance of any city, resolution of any county or a law of another state that prohibits the acts prohibited by those statutes other than K.S.A. 8-2110, and amendments thereto, shall be sentenced to at least five days of confinement and, upon a second conviction, shall not be eligible for parole until completion of five days of confinement.
(4) Except as provided in subsection (c), if a person: (A) Is convicted of a violation of this section, committed while the person's privilege to drive or privilege to obtain a driver's license was suspended or revoked for a violation of K.S.A. 8-2,144 or 8-1567, and amendments thereto, or any ordinance of any city, resolution of any county or a law of another state that prohibits the acts prohibited by those statutes; and (B) is or has been also convicted of a violation of K.S.A. 8-2,144 or 8-1567, and amendments thereto, or any ordinance of any city, resolution of any county or law of another state that prohibits the acts prohibited by those statutes, committed while the person's privilege to drive or privilege to obtain a driver's license was so suspended or revoked, the person shall not be eligible for suspension of sentence, probation or parole until the person has served at least 90 days of confinement, and any fine imposed on such person shall be in addition to such a term of confinement.
(b) (1) Except as provided in subsection (b)(2), the division, upon receiving a record of the conviction of any person under this section, or any ordinance of any city or resolution of any county or a law of another state which is in substantial conformity with this section, upon a charge of driving a vehicle while the license of such person is revoked or suspended, shall extend the period of such suspension or revocation for an additional period of 90 days.
(2) For any person found guilty of driving a vehicle while the license of such person is suspended for violating K.S.A. 8-2110, and amendments thereto, such offense shall not extend the additional period of suspension pursuant to subsection (b)(1).
(c) (1) The person found guilty of a class A nonperson misdemeanor on a third or subsequent conviction of this section shall be sentenced to not less than 90 days of confinement and fined not less than $1,500 if such person's privilege to drive a motor vehicle is canceled, suspended or revoked because such person:
(A) Refused to submit and complete any test of blood, breath or urine requested by law enforcement excluding the preliminary screening test as set forth in K.S.A. 8-1012, and amendments thereto;
(B) was convicted of violating the provisions of K.S.A. 40-3104, and amendments thereto, relating to motor vehicle liability insurance coverage;
(C) was convicted of vehicular homicide, K.S.A. 21-3405, prior to its repeal, or K.S.A. 21-5406, and amendments thereto, involuntary manslaughter while driving under the influence of alcohol or drugs, K.S.A. 21-3442, prior to its repeal, or involuntary manslaughter as defined in K.S.A. 21-5405(a)(3) and (a)(5), and amendments thereto, or any other murder or manslaughter crime resulting from the operation of a motor vehicle; or
(D) was convicted of being a habitual violator, K.S.A. 8-287, and amendments thereto.
(2) The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days of confinement. The 90 days of confinement mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours of confinement and only if such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-6609, and amendments thereto, or any municipal ordinance to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours of confinement.
(d) For the purposes of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section, "conviction" includes a conviction of a violation of any ordinance of any city, resolution of any county or a law of another state that is in substantial conformity with this section.
History: L. 1937, ch. 73, § 29; L. 1949, ch. 104, § 33; L. 1959, ch. 49, § 30; L. 1967, ch. 59, § 6; L. 1970, ch. 52, § 1; L. 1972, ch. 28, § 2; L. 1974, ch. 38, § 5; L. 1981, ch. 43, § 1; L. 1983, ch. 34, § 4; L. 1985, ch. 48, § 1; L. 1985, ch. 78, § 6; L. 1991, ch. 39, § 1; L. 1992, ch. 239, § 27; L. 1993, ch. 291, § 2; L. 1994, ch. 353, § 4; L. 1999, ch. 164, § 1; L. 2001, ch. 112, § 4; L. 2001, ch. 200, § 3; L. 2006, ch. 211, § 10; L. 2007, ch. 181, § 2; L. 2011, ch. 30, § 88; L. 2011, ch. 105, § 5; L. 2012, ch. 172, § 5; L. 2018, ch. 7, § 3; L. 2018, ch. 106, § 3; L. 2021, ch. 89, § 3; L. 2023, ch. 34, § 1; July 1.
Revisor's Note:
Section was also amended by L. 2011, ch. 30, § 88, but that version was repealed by L. 2011, ch. 105, § 36.
Law Review and Bar Journal References:
1956-57 survey of Kansas law, Fred N. Six, 6 K.L.R. 163, 165 (1957).
Changes in penalties for driving with canceled, suspended or revoked license, Robert F. Bennett, 39 J.B.A.K. 107, 109 (1970).
"Recent Developments—Traffic Cases and License Problems," William M. Ferguson, 39 J.B.A.K. 351, 401 (1970).
"Delacruz: Following the Nichols Court Through the Looking Glass," Eric Lawrence, 44 K.L.R. 1045 (1996).
"Scarlet Letters, Bilboes and Cable TV: Are Shame Punishments Cruel and Outdated or Are They a Viable Option for American Jurisprudence?" Scott E. Sanders, 37 W.L.J. 359 (1997).
"The potential civil liability of law enforcement officers and agencies," Stephen R. McAllister and Peyton H. Robinson, 67 J.K.B.A. No. 7, 14 (1998).
Attorney General's Opinions:
Driving under influence of alcohol; imposition by municipal courts for subsequent violations. 82-155.
Use of prior convictions in determining sentence for DUI offense. 82-185.
Municipal court jurisdiction. 83-79.
Drivers' licenses; driving while license canceled, suspended or revoked; nonresident motorist. 85-9.
Motor vehicle drivers' license act; application of mandatory 90-day jail term. 88-23.
Driving motor vehicle with canceled, suspended or revoked license; penalty; "imprisonment" defined. 93-94.
CASE ANNOTATIONS
1. Sheriff has no authority to authorize driving while licenses suspended. State v. Merrifield, 180 Kan. 267, 269, 303 P.2d 155.
2. Violation is act malum prohibitum; standing alone is not common law manslaughter. State v. Yowell, 184 Kan. 352, 359, 362, 363, 364, 336 P.2d 841.
3. Conviction hereunder; record reviewed; admissibility of evidence; conviction upheld. State v. Harkness, 189 Kan. 581, 584, 585, 586, 587, 588, 589, 370 P.2d 100.
4. Section is self-contained specific recidivist statute, neither ex post facto law nor denial of equal protection or due process. State v. Jones, 214 Kan. 568, 569, 570, 521 P.2d 278.
5. Construction referred to in distinguishing between crimes where conviction is a necessary element and crimes considered in establishing penalties. State v. Loudermilk, 221 Kan. 157, 160, 557 P.2d 1229.
6. Crimes in which prior conviction is a necessary element distinguished from crimes considered in establishing penalties. State v. Loudermilk, 221 Kan. 157, 160, 557 P.2d 1229.
7. Section applied; conviction reversed. City of Overland Park v. Rice, 222 Kan. 693, 696, 698, 567 P.2d 1382.
8. Defendant may not be convicted hereunder where license merely restricted. State v. Streit, 5 Kan. App. 2d 168, 169, 613 P.2d 396.
9. State must offer proof that copy or written notice of order of suspension was mailed to last known address of licensee. State v. Jones, 231 Kan. 366, 368, 644 P.2d 464 (1982).
10. Violation of city ordinance prohibiting same act does not count toward conviction under K.S.A. 8-285 (before 1982 amendment). State v. Wood, 231 Kan. 699, 701, 647 P.2d 1327 (1982).
11. Habitual violator proceeding cannot be based on an uncertified record of conviction. State v. Topping, 8 Kan. App. 2d 467, 468, 660 P.2d 578 (1983).
12. Cited in holding diversion agreement in prior DUI case (K.S.A. 8-1567) considered conviction for sentence enhancement. State v. Clevenger, 235 Kan. 864, 683 P.2d 1272 (1984).
13. Statutory changes in K.S.A. 38-1602(b)(1) not retroactively applied to juvenile charged before change effective. In re Hockenbury, 9 Kan. App. 2d 450, 452, 680 P.2d 561 (1984).
14. Driving under influence statute (K.S.A. 8-1567) not vague nor denial of equal protection or ex post facto. State v. Campbell, 9 Kan. App. 2d 474, 477, 681 P.2d 679 (1984).
15. Legislative intent considered; convictions under city ordinances excluded from consideration for sentence enhancement. State v. Evans, 10 Kan. App. 2d 171, 172, 173, 694 P.2d 912 (1985).
16. Cited; burden on license holder to notify division when holder moves from address on license or license application (K.S.A. 8-248). State v. Moffett, 240 Kan. 406, 408, 728 P.2d 1330 (1986).
17. Cited; admissibility of blood alcohol test performed with consent but without notices contained in K.S.A. 8-1001(f)(1) examined. State v. Doeden, 12 Kan. App. 2d 245, 738 P.2d 876 (1987).
18. Unsworn traffic citation no longer allowed as complaint; requirement of verified complaint to commence prosecution noted. State v. Fraker, 242 Kan. 466, 467, 748 P.2d 868 (1988).
19. Cited; Nonresident Violator Compact (K.S.A. 8-1219) as exception to suspension provisions in K.S.A. 8-256(a) and 8-1474 examined. State v. Hudon, 243 Kan. 725, 763 P.2d 611 (1988).
20. Authority of department of revenue to delete suspension order under K.S.A. 40-3104 examined. State v. Damman, 244 Kan. 487, 488, 769 P.2d 662 (1989).
21. Propriety of searches and seizures, excessive sentencing examined. State v. Doile, 244 Kan. 493, 769 P.2d 666 (1989).
22. Previous uncounseled misdemeanor convictions as basis for habitual violator status (K.S.A. 8-286) and not invalidating conviction under K.S.A. 8-287 examined. State v. Whitehurst, 13 Kan. App. 2d 411, 414, 772 P.2d 1251 (1988).
23. History of K.S.A. 8-2117 (juvenile traffic offenders) examined; limitations on length and places of incarceration determined. State v. D.L.P., 13 Kan. App. 2d 647, 651, 778 P.2d 851 (1989).
24. Proper remedy for violating right to counsel in K.S.A. 8-1001(f)(1)(E) as suppression of breath test determined; invoking right examined. State v. Kelly, 14 Kan. App. 2d 182, 184, 786 P.2d 623 (1990).
25. Third or subsequent suspended license conviction requires one year minimum commitment with at least five days imprisonment. State v. Harpool, 246 Kan. 226, 229, 788 P.2d 281 (1990).
26. State's dismissal of action based on necessity and refiling same as not an avoidance of speedy trial limitations (K.S.A. 22-3402) examined. State v. Jamison, 248 Kan. 302, 303, 806 P.2d 972 (1991).
27. Violation of statute not a "traffic offense" as defined in K.S.A. 8-2117(d); minor over 14 years subject to juvenile offenders code. State v. Frazier, 248 Kan. 963, 972, 811 P.2d 1240 (1991).
28. Horizontal gaze nystagmus field sobriety test for DUI (K.S.A. 8-1567) noted as scientific; admissibility requirements examined. State v. Witte, 251 Kan. 313, 315, 836 P.2d 1110 (1992).
29. Procedure employed by another state in suspension of license considered in action involving driver charged hereunder. State v. Marshall, 252 Kan. 415, 845 P.2d 659 (1993).
30. District court's reliance upon defendant's actual knowledge that driver's license suspended was harmless error. State v. Lara, 18 Kan. App. 2d 386, 392, 853 P.2d 1168 (1993).
31. City law enforcement officer's authority to exercise powers outside city limits (K.S.A. 22-2401a) examined; "request for assistance" construed. State v. Rowe, 18 Kan. App. 2d 572, 856 P.2d 1340 (1993).
32. Whether municipal ordinances substantially conform with state statutes to be admissible in habitual violator action examined. State v. Graham, 19 Kan. App. 2d 341, 342, 868 P.2d 1245 (1994).
33. Whether substantial and compelling reasons existed for departure from presumptive sentence examined. State v. Richardson, 20 Kan. App. 2d 932, 933, 901 P.2d 1 (1995).
34. Police had probable cause to arrest driver with suspended license discovered following traffic stop. U.S. v. Shareef, 100 F.3d 1491, 1495, 1507 (1996).
35. Defendant was under indefinite suspension of driving privileges which could end only upon submission of proof of insurance and payment of fee; K.S.A. 8-262(a)(2) inapplicable. State v. Lawson, 261 Kan. 964, 965, 933 P.2d 684 (1997).
36. Licensee's actual knowledge of habitual violator declaration not required to sustain her conviction for violating K.S.A. 8-287. State v. Lewis, 23 Kan. App. 2d 758, 766, 767, 935 P.2d 1072 (1997).
37. Notice provisions of habitual violator statutes do not violate due process clause. State v. Lewis, 263 Kan. 843, 854, 953 P.2d 1016 (1998).
38. Unsigned written notice of revocation or suspension complied with section's notice requirements. State v. Carter, 264 Kan. 226, 227, 955 P.2d 119 (1998).
39. Defendant not eligible for reinstatement or entitled to return of license at time of arrest; noncompliance with K.S.A. 8-241. State v. Peterson, 265 Kan. 732, 733, 962 P.2d 1076 (1998).
40. Felony prosecution under subsection (a)(1) requires accused had knowledge driver's license was suspended as an essential element. State v. Thomas, 266 Kan. 265, 266, 970 P.2d 986 (1998).
41. Defendant's prior convictions for driving with a suspended license need not have predated current offense for HCA (K.S.A. 21-4504) enhancement purposes. State v. Bandy, 25 Kan. App. 2d 696, 697, 971 P.2d 749 (1998).
42. Defendant is entitled to full credit for jail time served in lieu of bond against, mandatory minimum sentence. State v. Wolverton, 25 Kan. App. 2d 737, 738, 969 P.2d 917 (1998).
43. Motor vehicle operator with suspended license does not violate section by driving in private parking lot. State v. Patton, 26 Kan. App. 2d 591, 593, 992 P.2d 819 (1999).
44. Person who never had a driver's license cannot be charged with driving while suspended pursuant to K.S.A. 8-262, but can be charged with driving without a license in violation of K.S.A. 8-235(a). State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000).
45. Change in penalty from felony to misdemeanor is substantive change to be applied prospectively only; penalty to be applied is one in effect at time of offense. State v. Edwards, 28 Kan. App. 2d 379, 15 P.3d 855 (2000).
46. Call on cell phone to police from vehicle driver giving identity of driver and detailed information of drunken or reckless driving by another, plus license number, is sufficient to support an investigative stop. State v. Partridge, 29 Kan. App. 2d 887, 38 P.3d 862 (2001).
47. Mentioned involving interpretation of self-contained habitual criminal statute involving third offense of driving with suspended license. State v. Paul, 285 K.2d 658, 667, 175 P.3d 840 (2008).
48. Cited; warrantless search after traffic stop and suspended driver's license; probable cause found lacking. State v. Fitzgerald, 286 Kan. 1124, 1127, 192 P.3d 171 (2008).
49. Search of vehicle upheld; case law on vehicle searches discussed and applied. State v. Davison, 41 Kan. App. 2d 140, 202 P.3d 44 (2009).
50. The legislature's use of the word "or" in the statutory phrase "canceled, suspended or revoked" was not intended to create three means of committing the crime of driving while suspended. State v. Suter, 296 Kan. 137, 290 P.3d 620 (2012).
51. A passenger with a suspended license who has exerted actual physical control of a vehicle may be convicted of driving with a suspended license. State v. Sanchez, 48 Kan. App. 2d 608, 296 P.3d 1133 (2013).
52. Driving with a suspended license is a crime. Reiling v. Sun Life Assur. Co. of Canada, 66 F. Supp. 3d 1361 (2014).