Printable Format8-1599. Transportation of liquor in opened containers unlawful; exceptions; penalty; report of prior convictions; city or county not prohibited from enacting comparable ordinance or resolution, requirements. (a) As used in this section, "alcoholic beverage" means any alcoholic liquor, as defined by K.S.A. 41-102, and amendments thereto, or any cereal malt beverage, as defined by K.S.A. 41-2701, and amendments thereto.
(b) No person shall transport in any vehicle upon a highway or street any alcoholic beverage unless such beverage is:
(1) In the original unopened package or container, the seal of which has not been broken and from which the original cap, cork or other means of closure has not been removed;
(2) (A) in the locked rear trunk or rear compartment, or any locked outside compartment which is not accessible to any person in the vehicle while it is in motion; or
(B) if a motor vehicle is not equipped with a trunk, behind the last upright seat or in an area not normally occupied by the driver or a passenger; or
(3) in the exclusive possession of a passenger in a vehicle which is a recreational vehicle, as defined by K.S.A. 75-1212, and amendments thereto, or a bus, as defined by K.S.A. 8-1406, and amendments thereto, who is not in the driving compartment of such vehicle or who is in a portion of such vehicle from which the driver is not directly accessible.
(c) Violation of this section is a misdemeanor punishable by a fine of not more than $200 or by imprisonment for not more than six months, or both.
(d) Except as provided in subsection (f) upon conviction or adjudication of a second or subsequent violation of this section, the judge, in addition to any other penalty or disposition ordered pursuant to law, shall suspend the person's driver's license or privilege to operate a motor vehicle on the streets and highways of this state for one year.
(e) Upon suspension of a license pursuant to this section, the court shall require the person to surrender the license to the court, which shall transmit the license to the division of motor vehicles of the department of revenue, to be retained until the period of suspension expires. At that time, the licensee may apply to the division for return of the license. If the license has expired, the person may apply for a new license, which shall be issued promptly upon payment of the proper fee and satisfaction of other conditions established by law for obtaining a license unless another suspension or revocation of the person's privilege to operate a motor vehicle is in effect.
(f) As used in this section, "highway" and "street" have the meanings provided by K.S.A. 8-1424 and 8-1473, and amendments thereto.
(g) In lieu of suspending the driver's license or privilege to operate a motor vehicle on the highways of this state of any person convicted of violating this section, as provided in subsection (d), the judge of the court in which such person was convicted may enter an order which places conditions on such person's privilege of operating a motor vehicle on the highways of this state, a certified copy of which such person shall be required to carry any time such person is operating a motor vehicle on the highways of this state. Any such order shall prescribe the duration of the conditions imposed, which in no event shall be for a period of more than one year for a second violation.
Upon entering an order restricting a person's license hereunder, the judge shall require such person to surrender such person's driver's license to the judge who shall cause it to be transmitted to the division of vehicles, together with a copy of the order. Upon receipt thereof, the division of vehicles shall issue without charge a driver's license which shall indicate on its face that conditions have been imposed on such person's privilege of operating a motor vehicle and that a certified copy of the order imposing such conditions is required to be carried by the person for whom the license was issued any time such person is operating a motor vehicle on the highways of this state. If the person convicted is a nonresident, the judge shall cause a copy of the order to be transmitted to the division and the division shall forward a copy of it to the motor vehicle administrator, of such person's state of residence. Such judge shall furnish to any person whose driver's license has had conditions imposed on it under this section a copy of the order, which shall be recognized as a valid Kansas driver's license until such time as the division shall issue the restricted license provided for in this section.
Upon expiration of the period of time for which conditions are imposed pursuant to this subsection, the licensee may apply to the division for the return of the license previously surrendered by such licensee. In the event such license has expired, such person may apply to the division for a new license, which shall be issued immediately by the division upon payment of the proper fee and satisfaction of the other conditions established by law, unless such person's privilege to operate a motor vehicle on the highways of this state has been suspended or revoked prior thereto. If any person shall violate any of the conditions imposed under this subsection, such person's driver's license or privilege to operate a motor vehicle on the highways of this state shall be revoked for a period of not less than 60 days nor more than one year by the judge of the court in which such person is convicted of violating such conditions.
(h) It shall be an affirmative defense to any prosecution under this section that an occupant of the vehicle other than the defendant was in exclusive possession of the alcoholic liquor.
(i) The court shall report to the division every conviction of a violation of this section or of a city ordinance or county resolution that prohibits the acts prohibited by this section. Prior to sentencing under the provisions of this section, the court shall request and shall receive from the division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.
(j) For the purpose of determining whether a conviction is a first, second or subsequent conviction in sentencing under this section:
(1) "Conviction" includes being convicted of a violation of an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits;
(2) only convictions occurring in the immediately preceding five years, including prior to the effective date of this act, shall be taken into account, but the court may consider other prior convictions in determining the sentence to be imposed within the limits provided for a first, second or subsequent offender, whichever is applicable; and
(3) it is irrelevant whether an offense occurred before or after conviction for a previous offense.
(k) This section shall not be construed as preventing any city from enacting ordinances, or any county from adopting resolutions, declaring acts prohibited by this section as unlawful or prohibited in such city or county and prescribing penalties for violation thereof, but such ordinance or resolution shall provide for suspension or restriction of driving privileges as provided by this section and the convicting court shall be required to report convictions for violations of such ordinance or resolution as provided by subsection (i).
(l) This section shall be part of and supplemental to the uniform act regulating traffic on highways.
History: L. 1949, ch. 242, § 93; L. 1981, ch. 201, § 1; L. 1993, ch. 259, § 12; L. 1993, ch. 291, § 274; L. 1994, ch. 353, § 15; L. 2006, ch. 206, § 8; July 1.
Source or Prior Law:
41-804, 41-2719.
Cross References to Related Sections:
Legal transportation, see 41-724.
Law Review and Bar Journal References:
"A Comment on Kansas' New Drunk Driving Law," Joseph Brian Cox and Donald G. Strole, 51 J.K.B.A. 230, 234 (1982).
Attorney General's Opinions:
Kansas safety belt use act. 86-95.
Cereal malt beverage consumption on county-owned property. 86-142.
Possession, transportation and consumption of alcoholic liquors and cereal malt beverages by vehicle passengers. 86-157.
CASE ANNOTATIONS
1. Defendant not guilty hereunder unless he knew liquor was in vehicle. City of Hutchinson v. Weems, 173 Kan. 452, 453, 455, 457, 459, 249 P.2d 633.
2. Conviction hereunder upheld; substantial rights of accused not affected by instructions. State v. Ashton, 175 Kan. 164, 165, 262 P.2d 123.
3. Direct and circumstantial evidence reviewed; conviction upheld. State v. Dill, 182 Kan. 174, 176, 319 P.2d 172.
4. Plea of guilty and payment of fine and acceptance of parole constitute acquiescence in judgment; court without authority to set aside plea. State v. Morse, 191 Kan. 328, 329, 380 P.2d 310.
5. Conviction hereunder; instruction as to "under influence of intoxicating liquor" upheld. State v. Sauvage, 201 Kan. 555, 441 P.2d 861.
6. Cited in case concerning reasonableness of a search and seizure. State v. Thomas, 205 Kan. 442, 443, 469 P.2d 279.
7. Violation hereof and violation of K.S.A. 8-235 sufficient causes to premise limited search made at scene or arrest. United States v. Croft, 429 F.2d 884, 885, 886 (1970).
8. Ordinance regulating cereal malt beverage consumption and possession does not conflict herewith; subject not specifically pre-empted. City of Lyons v. Suttle, 209 Kan. 735, 739, 743, 498 P.2d 9.
9. Cited in dissent arguing that search of locked trunk of motor vehicle stopped for traffic violation was unreasonable. State v. Undorf, 210 Kan. 1, 9, 499 P.2d 1105.
10. Conviction hereunder affirmed. State v. Gordon, 219 Kan. 643, 645, 654, 549 P.2d 886.
11. Cited; implied consent given pursuant to K.S.A. 8-1001 applicable to unconscious or incapacitated driver; results of breath test admissible as evidence. State v. Garner, 3 Kan. App. 2d 697, 600 P.2d 1166; Aff'd. 227 Kan. 566, 608 P.2d 1321.
12. Conviction hereunder affirmed; no abuse of discretion in denying continuance when defendant's conduct is dilatory. State v. Miller, 4 Kan. App. 2d 68, 602 P.2d 553.
13. Prohibition against transporting open container of cereal malt beverage in a vehicle applies to passengers as well as the driver. State v. Erbacher, 8 Kan. App. 2d 169, 170, 171, 172, 651 P.2d 973 (1982).
14. Cited in holding state has no right to appeal partial dismissal of complaint while remainder pending. State v. Bickford, 234 Kan. 507, 508, 672 P.2d 607 (1983).
15. 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, 865, 683 P.2d 1272 (1984).
16. Cited; "reasonable opportunity" to have additional alcohol concentration test (K.S.A. 8-1004) examined. State v. George, 12 Kan. App. 2d 649, 652, 754 P.2d 460 (1988).
17. Error to extend doctrine of constructive possession to cases involving transportation of open containers. State v. Bishop, 14 Kan. App. 2d 223, 227, 786 P.2d 1152 (1990).
18. Trial court's authority to sentence following conviction does not include suspension of license for 180 days. State v. Gaschler, 17 Kan. App. 2d 699, 700, 847 P.2d 1319 (1992).
19. Defendant who fails to participate in ordered drug abuse treatment program is subject to serve underlying prison sentence. State v. Bee, 288 Kan. 733, 207 P.3d 244 (2009).
20. Conviction hereunder; district court without jurisdiction to modify sentence after sentencing concluded. State v. Trostle, 41 Kan. App. 2d 98, 201 P.3d 724 (2009).
21. Conviction under K.S.A. 8-1567 upheld; court reviews reasonableness of blood draw. State v. Davis, 41 Kan. App. 2d 1034, 207 P.3d 281 (2009).
22. Following a traffic stop, warrantless search of automobile was permissible where probable cause existed to search vehicle for open containers of alcohol. State v. Stevenson, 46 Kan. App. 2d 474, 262 P.3d 689 (2011).
23. To have probable cause to search a vehicle under the statute, the investigating officer must possess information that creates a fair probability that the vehicle contains an open container that has been unlawfully transported. State v. Stevenson, 299 Kan. 53, 321 P.3d 754 (2014).