Printable Format8-1013. Definitions. As used in K.S.A. 8-1001 through 8-1018, and amendments thereto:
(a) "Alcohol concentration" means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.
(b) (1) "Alcohol or drug-related conviction" means any of the following: (A) Conviction of vehicular battery or aggravated vehicular homicide, prior to their repeal, if the crime is committed while committing a violation of K.S.A. 8-1567, and amendments thereto, or the ordinance of a city or resolution of a county in this state which prohibits any acts prohibited by that statute, or conviction of a violation of K.S.A. 8-2,144 or 8-1567, and amendments thereto, conviction of a violation of aggravated battery as described in K.S.A. 21-5413(b)(3) or (b)(4), and amendments thereto, or conviction of a violation of involuntary manslaughter as described in K.S.A. 21-5405(a)(3) or (a)(5), and amendments thereto; (B) conviction of a violation of a law of another state which would constitute a crime described in subsection (b)(1)(A) if committed in this state; (C) conviction of a violation of an ordinance of a city in this state or a resolution of a county in this state which would constitute a crime described in subsection (b)(1)(A), whether or not such conviction is in a court of record; or (D) conviction of an act which was committed on a military reservation and which would constitute a violation of K.S.A. 8-2,144 or 8-1567, and amendments thereto, or would constitute a crime described in subsection (b)(1)(A) if committed off a military reservation in this state.
(2) For the purpose of determining whether an occurrence is a first, second or subsequent occurrence: (A) "Alcohol or drug-related conviction" also includes entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging commission of a crime described in subsection (b)(1), including a diversion agreement entered into prior to the effective date of this act; and (B) it is irrelevant whether an offense occurred before or after conviction or diversion for a previous offense.
(c) "Division" means the division of vehicles of the department of revenue.
(d) "Ignition interlock device" means a device which uses a breath analysis mechanism to prevent a person from operating a motor vehicle if such person has consumed an alcoholic beverage.
(e) "Occurrence" means a test refusal, test failure or alcohol or drug-related conviction, or any combination thereof arising from one arrest, including an arrest which occurred prior to the effective date of this act.
(f) "Other competent evidence" includes: (1) Alcohol concentration tests obtained from samples taken three hours or more after the operation or attempted operation of a vehicle; and (2) readings obtained from a partial alcohol concentration test on a breath testing machine.
(g) "Samples" includes breath supplied directly for testing, which breath is not preserved.
(h) "Test failure" or "fails a test" refers to a person's having results of a test administered pursuant to this act, other than a preliminary screening test, which show an alcohol concentration of 0.08 or greater in the person's blood or breath, and includes failure of any such test on a military reservation.
(i) "Test refusal" or "refuses a test" refers to a person's failure to submit to or complete any test of the person's blood, breath, urine or other bodily substance, other than a preliminary screening test, in accordance with this act, and includes refusal of any such test on a military reservation.
(j) "Law enforcement officer" has the meaning provided by K.S.A. 21-5111, and amendments thereto, and includes any person authorized by law to make an arrest on a military reservation for an act which would constitute a violation of K.S.A. 8-1567, and amendments thereto, if committed off a military reservation in this state.
History: L. 1988, ch. 47, § 6; L. 1993, ch. 259, § 5; L. 2005, ch. 86, § 1; L. 2011, ch. 105, § 13; L. 2012, ch. 172, § 15; L. 2013, ch. 122, § 3; L. 2018, ch. 7, § 5; L. 2018, ch. 106, § 9; July 1.
Revisor's Note:
Section was also amended by L. 2011, ch. 30, § 92, but that version was repealed by L. 2011, ch. 105, § 36.
Law Review and Bar Journal References:
"Don't Hold Your Breath: Kansas's Criminal Refusal Law Is on a Collision Course with the U.S. Constitution," Taryn Alexandra Locke, 52 W.L.J. 289 (2013).
Attorney General's Opinions:
Diversion for driving under the influence of alcohol is precluded for commercial drivers. 2003-32.
Person who has been charged with operating a vehicle under the influence and thereafter completes diversion is not disqualified from being a candidate for or holding the office of sheriff. 2012-8.
CASE ANNOTATIONS
1. Absence herein of time limitation found in K.S.A. 8-1567(a)(2) does not render statute unconstitutionally vague. Podrebarac v. Kansas Dept. of Revenue, 15 Kan. App. 2d 383, 385, 807 P.2d 1327 (1991).
2. Testimony sufficient to equate breath test result with statutory definition of alcohol concentration examined. State v. Almond, 15 Kan. App. 2d 585, 589, 811 P.2d 529 (1991).
3. Enhancement of civil penalty based on a prior uncounseled DUI conviction pursuant to K.S.A. 8-1014 upheld. Musick v. Kansas Dept. of Revenue, 16 Kan. App. 2d 462, 463, 466, 825 P.2d 531 (1992).
4. No double jeopardy for DUI prosecution following suspension of driver's license for refusal to take breathalyzer test. State v. Maze, 16 Kan. App. 2d 527, 533, 825 P.2d 1169 (1992).
5. What constitutes completed breath test, inadequate sample due to physical inability caused by medical condition examined. Call v. Kansas Dept. of Revenue, 17 Kan. App. 2d 79, 81, 831 P.2d 970 (1992).
6. Drunken condition preventing completion of preparatory requirements of agreed-to breathalyzer test constitutes refusal. McRoberts v. Kansas Dept. of Revenue, 17 Kan. App. 2d 680, 682, 843 P.2d 280 (1992).
7. Admission of alcohol concentration test obtained four hours after defendant operated vehicle upheld. State v. Sliva, 25 Kan. App. 2d 437, 438, 962 P.2d 1146 (1998).
8. Deficient breath sample not admissible as "other competent evidence" in prosecution for DUI under K.S.A. 8-1567 as such is not contained in paragraph (1) of subsection (f) of K.S.A. 8-1013. State v. Herrman, 33 Kan. App. 2d 46, 99 P.3d 632 (2004).
9. Deficient or partial sample breath test is "other competent evidence" under subsection (f)(2). State v. Stevens, 36 Kan. App. 2d 323, 328, 138 P.3d 1262 (2006).
10. Unlike K.S.A. 8-1567 (a)(1), subsection (a)(3) does not limit the introduction of "other competent evidence" to that found in K.S.A. 8-1013(f)(2). State v. Stevens, 285 Kan. 307, 319, 322, 172 P.3d 570 (2007).
11. Mentioned in case upholding exclusion of constitutional issues in administrative hearings under K.S.A. 8-1020. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 630, 176 P.3d 938 (2008).
12. Defendant effected a valid rescission of her constructive test refusal; suppression of both the evidence of a test refusal and the evidence of the deficient breath sample test result. State v. May, 293 Kan. 858, 269 P.3d 1260 (2012).
13. The term "evidentiary test" on a form is sufficient to distinguish a post-arrest breath test from a preliminary breath test. Creecy v. Kansas Dep't of Revenue, 310 Kan. 454, 473, 447 P.3d 959 (2019).