ORDINANCE NO. 8645
AN ORDINANCE REGULATING TRAFFIC WITHIN THE CORPORATE LIMITS OF THE CITY OF LAWRENCE, KANSAS; BY AMENDING CHAPTER 17, ARTICLE 1 OF THE CODE OF THE CITY OF LAWRENCE, KANSAS 2011 EDITION AND AMENDMENTS THERETO AMENDING THE “STANDARD TRAFFIC ORDINANCE FOR KANSAS CITIES,” EDITION OF 2010, PROVISIONS RELATING TO DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS AND RELATING TO PRELIMINARY BREATH TESTS.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LAWRENCE, KANSAS:
Section 1. Chapter 17, Article 1, Section 17-121 of the Code of the City of Lawrence, Kansas 2011 edition and amendments thereto, is hereby enacted to read as follows:
17-121 AMENDMENTS TO STO: DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; PENALTIES.
Article 6, Section 30 of the Standard Traffic Ordinance for Kansas Cities, Edition of 2010, incorporated in Section 17-101 of this Article, is hereby amended to read as follows:
Sec. 30. Driving under the influence of intoxicating liquor or drugs; penalties.
(a) No person shall operate or attempt to operate any vehicle within the city while:
(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence is .08 or more. For the purposes of this section, "any 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;
(2) The alcohol concentration in the person's blood or breath, as measured within three hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) Under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
(4) Under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or
(5) Under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.
(6) The person is a habitual user of any narcotic, hypnotic, omnificent or stimulating drug.
(b) Upon a first conviction of a violation of this section, a person shall be sentenced to not less than 48 consecutive hours nor more than six months imprisonment or, in the court's discretion, one hundred hours of public service, and fined not less than $750 nor more than $1,000. The person convicted shall serve at least 48 consecutive hours' imprisonment or 100
hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole. The court may place the person convicted under a house arrest program pursuant to section 249 of Chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours’ imprisonment.
(c) On a second conviction of a violation of this section, a person shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,250 nor more than $1,750. The person convicted shall serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment; provided, such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 120 hours of confinement. Such 120 hours of confinement shall be a period of at least 48 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender’s work day. The court may place the person convicted under a house arrest program pursuant to Section 249 of Chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment. The person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender’s location. The offender shall serve a minimum of 120 hours of confinement within the boundaries of the offender’s residence. Any exceptions to remaining within the boundaries of the offender’s residence provided for in the house arrest agreement shall not be counted as part of the 120 hours.
(d) On a third conviction for a violation of this section, unless such person has a prior conviction which occurred within the preceding ten years, not including any period of incarceration, the person convicted shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,750 nor more than $2,500. 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’ imprisonment. The 90 days’ imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 240 hours of confinement. Such 240 hours of confinement shall be a period of at least 48 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender’s work day. The court may place the person convicted under a house arrest program pursuant to section 349 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours imprisonment, the person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender’s location. The offender shall serve a minimum of 240 hours of confinement within the boundaries of the offender’s residence. Any exceptions to remaining within the boundaries of the offender’s residence provided for in the house arrest agreement shall not be counted as part of the 240 hours.
(e) In addition, prior to sentencing for any conviction, the court shall order the person to participate in an alcohol and drug evaluation conducted by a provider in accordance with K.S.A. 8-1008, and amendments thereto. The person shall be required to follow any recommendations made by the provider after such evaluation, unless otherwise ordered by the court.
(f) Any person convicted of violating this section who had one or more children under the age of fourteen years in the vehicle at the time of the offense shall have such person's punishment enhanced by one month of imprisonment. This imprisonment must be served consecutively to any other minimum mandatory penalty imposed for a violation of this section. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.
(g) If a person is charged with a violation of this section involving drugs, the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.
(h) The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessment and costs shall be required to be paid not later than 90 days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.
(i) In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to seven dollars ($7.00) for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.
(j) Except as provided in paragraph (4), in addition to any other penalty which may be imposed upon a first conviction of a violation of this section, the court may order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period of one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.
(1) The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section;
(2) Prior to ordering the impoundment or immobilization of a motor vehicle or
vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:
(a) Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and
(b) Whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.
(3) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such imprisonment or immobilization.
(4) As used in this subsection, the convicted person's motor vehicle or vehicles shall not include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.
(k) The court shall electronically report every plea of guilty or conviction of a violation of this section and every diversion agreement entered into in lieu of further criminal proceedings on a complaint alleging a violation of this section to the division. 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 vehiclelaws of the state.
(l) For the purpose of determining whether a conviction is a first, or second, in sentencing under this section:
(1) ‘Conviction’ includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;
(2) ‘Conviction’ includes being convicted of a violation of a law of this state or of
another state, or an ordinance of any city or resolution of any county which prohibits the acts that this section prohibits, or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;
(3) Only convictions occurring on or after July 1, 2001 shall be taken into account when determining the sentence to be imposed for a first or second offender.
(4) It is irrelevant whether an offense occurred before or after conviction for a
previous offense.
(5) A person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section, and amendments thereto, or a state statute or ordinance which prohibits the acts of this section, and amendments thereto, only once during the person's lifetime.
(m) Upon conviction of a person for a violation of this section, the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person’s driving privileges as provided by K.S.A. 8-1014, and amendments thereto.
(n) The court shall be authorized to order any person convicted of a violation of this section to pay restitution to any victim who has suffered loss due to the violation for which the person was convicted.
(o) No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section to avoid the mandatory penalties established by this section. For the purpose of this subsection, entering into a diversion agreement established pursuant to K.S.A. 12-4413 et seq. and amendments thereto, shall not constitute plea bargaining.
(p) The alternatives set out in subsections (a)(1), (2) and (3) of this section may be pleaded in the alternative, and the city may, but shall not be required to, elect one or two of the three prior to submission of the case of the fact finder.
(q) For the purpose of this section:
(1) ‘Alcohol concentration’ means the number of grams of alcohol per one hundred milliliters of blood or per two hundred ten liters of breath;
(2) ‘Imprisonment’ includes any restrained environment in which the court and law enforcement agency intend to retain custody and control of a defendant and such environment has been approved by the governing body.
(3) ‘Drug’ includes toxic vapors.
(4) ‘Toxic Vapors’ are defined as including the following substances or products
containing such substances:
(a) Alcohols, including methyl, isopropyl, propyl or butyl;
(b) Aliphatic acetates, including ethyl, methyl, proply or methyl
cellosolve acetate;
(c) acetone;
(d) Benzene
(e) Carbon tetrachloride;
(f) Cyclohexane;
(g) Freons, including freon 11 and freon 12;
(h) Hexane;
(i) Methyl ethyl ketone;
(j) Methyl isobutyl ketone
(k) Naptha;
(l) Perchlorethylene;
(m) Toluene;
(n) Trichloroethane; and/or Xylene.
(r) Should any court declare any subsection, clause or provision of this section to be
unconstitutional, such decision shall affect only such subsection, clause or provision so declared unconstitutional and shall not affect any other subsection, clause or provision of this section.
Section 2. Chapter 17, Article 1, Section 17-122 of the Code of the City of Lawrence, Kansas 2011 edition and amendments thereto, is hereby enacted to read as follows:
17-122 AMENDMENTS TO STO: DRIVING COMMERCIAL MOTOR VEHICLE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; PENALTIES.
Article 6, Section 30.1 of the Standard Traffic Ordinance for Kansas Cities, Edition of 2010, incorporated in Section 17-101 of this Article, is hereby amended to read as follows:
Sec. 30.1. Driving commercial motor vehicle under the influence of intoxicating liquor or
drugs; penalties.
(a) No person shall operate any commercial motor vehicle within the city while:
(1) the alcohol concentration in the person's blood or breath, as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .04 or more;
(2) the alcohol concentration in the person's blood or breath, as measured within threehours of the time of driving a commercial motor vehicle, is .04 or more; or
(3) committing a violation of subsection (a) of Section 30 of this ordinance.
(b) Upon a first conviction of a violation of this section, a person shall be sentenced to not less than 48 consecutive hours nor more than six months imprisonment or, in the court's discretion, 100 hours of public service, and fined not less than $750 nor more than $1,000. The person convicted must serve at least 48 consecutive hours' imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole.
(c) On a second conviction of a violation of this section, a person shall be sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,250.00 nor more than $1,750. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of the each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 120 hours of confinement. Such 120 of confinement shall be a period of at least 48 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender’s work day. The court may place the person convicted under a house arrest program pursuant to section 249 of chapter 136 of the 2010 Session Laws of Kansas, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment. The person convicted, if placed under house arrest shall be monitored by an electronic monitoring device, which verifies the offender’s location. The offender shall serve a minimum of 120hours of confinement within the boundaries of the offender’s residence. Any exceptions to remaining within the boundaries of the offender’s residence provided for in the house arrest agreement,
shall not be counted as part of the 120 hours.
(d) In addition, prior to sentencing for any conviction, the court shall order the person to participate in an alcohol and drug evaluation conducted by a provider in accordance with K.S.A. 8-1008, and amendment thereto. The person shall be required to follow any recommendations made by the provider after such evaluation, unless otherwise ordered by the court.
(e) Any person convicted of a violation of this section who had one or more children under the age of fourteen years in the vehicle at the time of the offense shall have such persons’ punishment enhanced by one month of imprisonment. This imprisonment shall be served consecutively to any other minimum mandatory penalty imposed for a violation of this section. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.
(f) If a person is charged with a violation of this section involving drugs, the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.
(g) The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessment and costs shall be required to be paid not later than ninety days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.
(h) In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or any an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.
(i) The court shall electronically report every conviction of a violation of this section and every diversion agreement entered into in lieu of further criminal proceedings on a complaint alleging a violation of this section to the division. Prior to sentencing under the provisions of the section, the court shall request and shall receive from the:
(1) Division a record of all prior convictions obtained against such person for any violation of any of the motor vehicle laws of this state; and
(2) Kansas Bureau of Investigation central repository all criminal history record information concerning such person.
(j) For the purpose of determining whether a conviction is a first, second, third or subsequent conviction in sentencing under this section:
(1) ‘Conviction’ includes being convicted of a violation of a law of another state or an ordinance of any city or resolution of any county, which prohibits the acts that this section prohibits’
(2) any convictions occurring during a person’s lifetime shall be taken into account when determining the sentence to be imposed for a first, second, third or subsequent offender; and
(3) it is irrelevant whether an offense occurred before or after conviction for a
previous offense.
(k) For the purpose of this section:
(1) ‘Alcohol concentration’ means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breach.
(2) ‘imprisonment’ shall include any restrained environment in which the court and law enforcement agency intend to retain custody and control of a defendant and such environment has been approved by the board of county commissioners or the governing body of a city; and
(3) ‘drug’ includes toxic vapors as such term is defined in K.S.A. 2010 Supp. 21- 36a12, and amendments thereto.
(l) Whenever a law enforcement officer has reasonable ground to believe a person has been driving a commercial motor vehicle in violation of the provisions of this section, such officer shall follow the procedures for notice, testing, and certification of test refusal or results as set forth in K.S.A. 8-2, 145 and amendments thereto.
(m) It shall not be a defense that the person did not understand the notices required by this section.
Section 3. Chapter 17, Article 1, Section 17-123 of the Code of the City of Lawrence, Kansas 2011 edition and amendments thereto, is hereby enacted to read as follows:
17-123 AMENDMENTS TO STO: PRELIMINARY BREATH TEST.
Article 6, Section 30.2 of the Standard Traffic Ordinance for Kansas Cities, Edition of 2010, incorporated in Section 17-101 of this Article, and amendments thereto, is hereby amended to read as follows:
Sec. 30.2 Preliminary Breath Test.
(a) A law enforcement officer may request a person who is operating or attempting to operate a vehicle within this state to submit to a preliminary screening test of the person's breath, saliva, or both if the officer has reasonable grounds to believe that the person:
(1) has alcohol in the person's body;
(2) has committed a traffic infraction; or
(3) has been involved in a vehicle accident or collision.
(b) At the time the test is requested, the person shall be given oral notice that:
(1) There is no right to consult with an attorney regarding whether to submit to testing;
(2) Refusal to submit to testing is a traffic infraction; and
(3) Further testing may be required after the preliminary screening test. Failure to provide the notice shall not be an issue or defense in any action. The law enforcement officer then shall request the person to submit to the test.
(c) Refusal to take and complete the test as requested is a traffic infraction punishable by a fine not more than five hundred dollars. If the person submits to the test, the results shall be used for the purpose of assisting law enforcement officers in determining whether an arrest should be made and whether to request the tests authorized by K.S.A. 8-1001 and amendments thereto. A law enforcement officer may arrest a person based in whole or in part upon the results of a preliminary screening test. Such results shall not be admissible in any civil or criminal action except to aid the court or hearing officer in determining a challenge to the validity of the arrest or the validity of the request to submit to a test pursuant to K.S.A. 8-1001 and amendments thereto. Following the preliminary screening test, additional tests may be requested pursuant to K.S.A. 8- 1001 and amendments thereto.
(d) Any preliminary screening of a person’s breath shall be conducted with a device approved pursuant to K.S.A. 65-1,107 and amendments thereto. Any preliminary screening of a person’s saliva shall be conducted with a device approved pursuant to Section 2, of 2010 House Substitute for Senate Bill No. 6.
Section 4 . Repeal. Article 6, Section(s) 30, 30.1 and 30.2 of the Standard Traffic Ordinance for Kansas Cities, Edition of 2010, incorporated in Section 17-101 of this Article, and amendments thereto is hereby repealed, it being the intent to replace said section(s) with the contents herein.
Section 5. Severability. If any section, clause, sentence, or phrase of this ordinance is found to be unconstitutional or is otherwise held invalid by any court of competent jurisdiction, it shall not affect the validity of any remaining parts of this ordinance.
Section 6. Effective Date. This ordinance shall take effect and be in force upon its passage and publication once in the official city paper as provided by law.
ADOPTED by the Governing Body this _______ day of July, 2011.
PASSED:
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Aron E. Cromwell, Mayor
ATTEST:
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Jonathan M. Douglass, City Clerk
APPROVED AS TO LEGAL FORM:
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Toni R. Wheeler
Director, Legal Department