CHAPTER XVII. PUBLIC OFFENSESCHAPTER XVII. PUBLIC OFFENSES\ARTICLE 2. LOCAL REGULATIONS

It shall be unlawful for any person to make any impudent, insulting or licentious advance or salutation to any other person. Annoying any person shall be a Class C violation.

(Ord. 2943, 17-308)

It shall be unlawful for any person to make any threatening statement to another person. Making a threatening statement is a Class C violation.

(Ord. 2943, 17-309)

Permitting a dangerous animal to be at large is the act or omission of the owner or custodian of an animal of dangerous or vicious propensities, who knowing of such propensities permits or suffers such an animal to go at large or keeps such animal without taking ordinary care to restrain it. Permitting a dangerous animal to be at large is a Class B violation.

(K.S.A. 21-3418, Ord. 2943, 17-310)

Adultery is engaging in sexual intercourse or sodomy with a person who is not married to the offender if:

(a)   The offender is married; or

(b)   The offender is not married and knows that the other person involved in the act is married.

Adultery is a Class C violation.

(K.S.A. 21-3507; Ord. 2943, 17-401; Code 1984)

It shall be unlawful for any person to fail to return any book, newspaper, magazine, pamphlet, manuscript, article, art print, phonograph record, film or any other property owned by, or consigned to, the Newton Public Library after written notice to return the same within 30 days has been given to such person, provided such notice shall be given after the expiration of the time which by the rules of the Library Board the book or other library material may be kept.

(Ord. 3506, Sec. 1)

It shall be unlawful for any person to do anyone or more of the following acts:

(a)   Give a fictitious name or address at the Newton Public Library in order to obtain possession or use of any book or other property of the Newton Public Library;

(b)   To use a library card of another person without permission of such owner to secure possession of any book or other property of the Newton Public Library;

(c)   To conceal his or her identity or place of employment or residence in any manner whatsoever in order to secure possession of any book, library card or any other property of the Newton Public Library.

(Ord. 3506, Sec. 2)

The notice required in section 17-205 shall be given by the librarian of the Newton Public Library and shall be substantially as follows:

(a)   The notice shall be in writing;

(b)   Specifically state the violations alleged to exist or to have been committed;

(c)   Specify that the person to whom the notice is issued shall have 30 days within which to correct the violations specified;

(d)   Be addressed to and served upon the holder of the library card at the most recent address as it appears from such person’s application for a library card. Such notice shall be deemed properly served upon such holder or owner of a library card if a copy thereof is served upon him or her personally, or if a copy thereof is sent by certified mail to the most recent address listed on his or her application for a library card.

(Ord. 3506, Sec. 3)

In any prosecution charging a violation of section 17-205, proof that a particular individual was the registered holder of a particular library card which was used to secure any book or any other library property, shall constitute in evidence a prima facie presumption that the record owner or holder of such library card was the person who utilized the same to secure a particular book or any other property of the Newton Public Library at the point where and at the time when such violation is alleged to have occurred. The foregoing stated presumption shall apply only when the procedure as prescribed by section 17-207 above has been followed.

(Code 2014)

Any violation of the provisions of sections 17-205:206 shall constitute a misdemeanor and any person violating any of the provisions of said sections shall upon conviction thereof be fined in a sum not less than $25 nor in excess of $250.

(Code 2014)

Possession or transportation of incendiary or explosive device is the knowing possession or transportation of any incendiary or explosive material, liquid, solid or mixture, equipped with fuse, wick, or any other detonating device, commonly known as Molotov cocktail. Possession or transportation of an incendiary or explosive device is a Class A misdemeanor.

(K.S.A. 21-3732; Code 1980, 17-612)

Criminal use of noxious matter is the possession, manufacture or transportation of any noxious matter with intent to use such matter for an unlawful purpose, or the use or attempt to use noxious matter to the injury of persons and property, or the placing or depositing of such matter upon or about the premises of another person without the consent of such person. “Noxious matter” as used in this section means any bomb, compound or substance which may give off dangerous or disagreeable odors or cause distress to persons exposed thereto. Criminal use of noxious matter is a Class A misdemeanor.

(K.S.A. 21-3733; Code 1980, 17-613)

Shoplifting is the willful taking of possession of any goods, wares or merchandise offered for sale by any store or other mercantile establishment with the intention of converting the same to his own use without paying the purchase price thereof. Shoplifting is a Class A misdemeanor.

(Code 1980, 17-614)

Trespassing for the purpose of parking a vehicle is the going upon the property owned or occupied by another person for the purpose of parking any vehicle upon such property without invitation or authorization by the occupant or owner of the property. Trespassing for the purpose of parking a vehicle is a Class C misdemeanor.

(Code 1980, 17-615)

Wasting water, gas, etc., is willfully causing the waste of any water, gas, steam or hot air conveyed by or through any pipe without the consent of the person owning or having control such pipe. Wasting utilities is a Class C misdemeanor.

(Code 1980, 17-616)

Interference with official radio communications is the making of any transmission upon the radio frequencies assigned to the city for police, fire, ambulance, public utility or other municipal purposes, without first having entered into an agreement with the city to permit such transmissions. Interference with official radio communications is a Class C misdemeanor.

(Ord. 3671, Sec. 1)

For the purposes of this article, “vagrancy” is defined as follows:

(a)   Engaging in an unlawful occupation;

(b)   Being of the age of 18 years or over and able to work and without lawful means of support and failing or refusing to seek employment;

(c)   Loitering in the city without visible means of support;

(d)   Loitering on the streets or in a place open to the public with intent to solicit for immoral purposes;

(e)   Deriving support in whole or in part from begging. Vagrancy is a Class C misdemeanor.

(K.S.A. Supp. 21-4108; Ord. 2943, Sec. 17-907)

Disturbance of religious assemblies is the disturbing of any congregation or assembly met for religious worship by making a noise or by rude and indecent behavior within their place of worship or so near the same as to disturb the order and solemnity of the meeting. Disturbance of religious assemblies is a Class C misdemeanor.

(Ord. 2943, Sec: 17-913)

Loitering in streets and other public places is the loitering on the public streets, school buildings or school grounds or any other public place or place accessible to the public without being engaged in some business demanding the person’s presence upon such street, school building, school grounds or at such public place or place accessible to the public or habitually lurking in a public place or a place accessible to the public without being engaged in some legal business. Loitering in streets and other public places is a Class C misdemeanor.

(Ord. 2943, Sec. 17-914)

It shall be unlawful for any person to trespass upon the property owned or occupied by another in this city for the purpose of looking or peeping into any window, door, skylight or other opening in a house, room or building, or to loiter in a public street, alley, parking lot or other public place for the purpose of wrongfully observing the actions of occupants of any such house, room or building. Violation of this section is a Class C misdemeanor

(Ord. 2943, Sec. 17-915)

The practice of going in and upon private residences or premises within the city by solicitors, peddlers, hawkers, itinerant merchants and transient vendors of merchandise, for the purpose of soliciting orders for the sale of goods, merchandise or for the purpose of disposing of or peddling the same, where there is posted in a conspicuous place a “No Peddlers” or similar sign, is hereby declared to be a nuisance and unlawful.

(Ord. 2943, Sec. 17-917)

It shall be unlawful for any person to throw or place, or cause to be thrown or placed upon private property, any handbill or advertisement of any kind, other than those contained in a newspaper, magazine or the United States mail, where such private property has posted therein in a conspicuous place, a “No Handbills” or similar sign, and such practice is hereby declared a nuisance.

(Ord. 2943, Sec. 17-918)

It shall be unlawful for any person to construct, set up or maintain any barbed wire or barbed wire enclosure or fence upon any property owned or leased by him or her and contiguous and along any street, alley, public ground or sidewalk in the city unless such barbed wire is secured, constructed, set up or maintained at least six feet above the ground level. Violation of this section is a Class C misdemeanor.

(Code 1975, Sec. 17-1008)

It shall be unlawful for any person within the city to throw or project any ball, stone, brick, piece of wood, clay or other hard substance along, over or upon any street, alley, sidewalk or public ground or at or against any house, building, vehicle, or at or toward any person. Violation of this section is a Class B misdemeanor.

(Code 1975, Sec. 17-1009)

(a)   Except as authorized by the Uniform Controlled  Substance Act, K.S.A. 65-4101 et seq., and amendments thereto, it shall be unlawful for any person to possess or have under such person's control, Marijuana or Tetrahydrocannabinol.

(b)   As used in this section:

(1)   Marijuana means all parts of all varieties of the plant Cannabis whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, or preparation of the plant, its seeds, or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt or derivative mixture or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil, or cake of the sterilized seed of the plant which is incapable of germination.

(2)   Tetrahydrocannabinol means any material, compound, mixture, or preparation which contains any quantity of the synthetic equivalent of the substances contained inthe plant, or in the resinous extractives of Cannabis, sp. and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following: Delta 1 cis or trans tetrahydrocannabinol, and their optical isomers, Delta 6 cis or trans tetrahydrocannabinol, and their optical isomers, Delta 3,4 cis or trans tetrahydrocannabinol ,and their optical isomers. Compounds of these structures are covered, regardless of numerical designations of atomic positions, as are their salts, isomers, and salts of isomers.

(c)   Penalties:

(1)   On a first offense for violation of Section 17-224(a), the convicted person shall be punished by a fine not less than $250 or greater than $1,000. In addition to such fine, the convicted person may be sentenced to serve a jail term of not more than 180 days. Upon a second conviction of Section 17- 224(a), or if the convicted person has a previous conviction of a substantially similar offense under Kansas law or other jurisdiction , the convicted person shall be punished by a fine not less than $500 or greater than $2,500. In addition to such fine, the convicted person may be sentenced to serve ajail term of not more than one year.

(2)   Violation of Section 17-224(a) is a misdemeanor, and may be prosecuted in municipal court unless such person has two or more prior convictions for violation of Section 17-224(a), or for a substantially similar offense under Kans law or other jurisdiction.

(3)   If the court finds substantial and compelling reasons to do so, the court may suspend all or part of the minimum fine established by this section on such conditions as the court directs. In making the determination regarding whether suspension of all or part of the minimum fine is within the interests ofjustice, the court shall consider, but is not limited to, the following factors:

(A)  The financial status of the defendant.

(B)  The amount of controlled substance or contraband possessed.

(C)  The lack of criminal history of the defendant.

(D)  Any drug treatment program voluntarily completed by the defendant before sentencing but subsequent to being charged under this article.

(E)   The defendant's level of cooperation with law enforcement including the truthful identification of the source of the controlled substance or contraband possessed by the defendant.

(4)   Any person who is convicted of a charge alleging a violation of Section 17-224(a) shall be required by the Court to obtain a drug abuse evaluation. Based upon the results of such evaluation, the Court may require the offender to attend and sq.ccessfully complete a drug abuse education, counseling or treatment program.

(5)   Any person who is diverted on a charge alleging a violation of Section 17-224(a) shall be required by the prosecutor to obtain a drug abuse evaluation. Based upon the results of such evaluation, the offender may be required to attend a drug abuse education, counseling or treatment program as a condition of such diversion agreement.

(6)   The municipal judge shall order any person convicted of a charge alleging a violation of Section 17-224(a) to pay the laboratory analysis fees specified in K.S.A. 28-176, and amendments thereto, as additional costs in the case provided that forensic laboratory services are rendered or administered in conjunction with the case. Any diversion agreement for a charge alleging a violation of Section 17-224(a) shall also contain a provision requiring the defendant to pay such laboratory analysis fees provided that forensic laboratory services are rendered in conjunction with the case.

(Ord. 2943; Ord. 4854-14; Ord. 4925-16)

Unlawful inhalation of certain toxic vapors from glue and related products and sale thereof shall be as follows:

(a)   As used in this section, the phrase “glue or paint containing a solvent having the property of releasing toxic vapors or fumes” shall mean and include any glue, paint, cement or other adhesive, the contents of which may include, but are not limited to, one or more of the following chemical compounds; acetone, acetate; benzene, butyl alcohol, ethyl alcohol, ethylene dichloride, isopropyl alcohol, methyl alcohol, methyl ethyl ketone, pentachlorophenol, petroleum ether or toluene (toluol).

(b)   No person shall, for the purpose of causing a condition of intoxication, inebriation, excitement, stupefaction, or the dulling of his or her brain or nervous system, intentionally smell or inhale the fumes from any glue or paint containing a solvent having the property of releasing toxic vapors or fumes: provided, that nothing in this section shall be interpreted as applying to the inhalation of any anesthesia for medical or dental purposes.

(c)   No person shall, for the purpose of violating subsection (b) of this section use or possess for the purpose of so using any glue or paint containing a solvent having the property of releasing toxic vapors or fumes.

(d)   No person shall sell, give or offer to sell or give to any person any tube or other container of glue or paint containing a solvent having the property of releasing toxic vapors or fumes, if he or she has knowledge that the product sold, given or offered to be sold or given will be used for the purpose set forth in paragraph (b) hereof.

A violation of this section is a Class B misdemeanor.

(Ord. 2943, 17-1015; Ord. 4337-00)

It shall be unlawful for any fortune-teller, palmist, phrenologist or clairvoyant to carry on or practice his or her business, trade or profession within the city.

(Ord. 2943, 17-1105)

(Ord. 4125, Sec. 1; Repealed by Ord. 4553-05)

(K.S.A. 41-715; Ord. 2943, 17-1203; Repealed by Ord. 4553-05)

(Ord. 2943, 17-1204; Repealed by Ord. 4553-05)

(Ord. 1943, 17-1205; Repealed by Ord. 4553-05)

(Ord. 2943, 17-1206; Repealed by Ord. 4553-05)

The following proclamation shall be imposed in the event of mob action or civil disobedience existing in the city:

(a)   Whenever, in the judgment of the mayor or in the event of his or her inability to act, the vice chairperson of the commission, determines that an emergency exists as a result of mob action or other civil disobedience causing danger or injury to or damages to persons or property, he or she shall have power to impose by proclamation any or all of the following regulations necessary to preserve the peace and order of the city.

(1)   To impose a curfew upon all or any portion of the city thereby requiring all persons in such designated curfew area to forthwith remove themselves from the public streets, alleys, parks or other public places; provided, that physicians, nurses and ambulance operators performing medical services, utility personnel maintaining essential public services, firefighters and city authorized or requested law enforcement officers and personnel may be exempted from such curfew.

(2)   To order the closing of any business establishments anywhere within the city for the period of the emergency, such businesses to include, but not be limited to those selling intoxicating liquors, cereal malt beverage, gasoline or firearms.

(3)   To designate any public street, thoroughfare, or vehicle parking areas closed to more vehicles and pedestrian traffic.

(4)   To call upon regular and auxiliary law enforcement agencies and organization within or without the city to assist in preserving and keeping the peace within the city.

(b)   The proclamation of emergency provided herein shall become effective upon its issuance and dissemination to the public by appropriate news media.

(c)   Any emergency proclaimed in accordance with the provisions of this article shall terminate after 48 hours from the issuance thereof, or upon the issuance of a proclamation determining an emergency no longer exits, whichever occurs first; provided, that such emergency may be extended for such additional periods of time as determined necessary by resolution of the governing body.

(d)   Any person who shall willfully fail or refuse to comply with the orders of duly authorized law enforcement officers or personnel charged with the responsibility of enforcing the proclamation of emergency authorized herein shall be deemed guilty of a Class C violation.

(Ord. 2943, 17-1401)

(a)   Stalking is the intentional, malicious and repeated following and harassment of another person. Stalking is a Class B violation.

(b)   Any person who violates subsection (a) when there is a temporary restraining order or an injunction, or both, in effect prohibiting the behavior described in subsection (a) against the same person is guilty of a Class A violation.

(c)   Any person who has a second or subsequent conviction occurring against such person within seven years of a prior conviction under subsection (a) involving the same victim is guilty of a Class A violation.

(d)   For purposes of this section, the following terms shall have the following meanings:

(1)   “Harassment” means the knowing and intentional course of conduct directed at a specific person which seriously alarms, annoys or harasses the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress to the person.

(2)   “Course of Conduct” means a pattern of conduct composed of a serious of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of course of conduct.

(e)   This section shall not apply to conduct which occurs during labor picketing.

(Ord. 4109, Sec. 1)

(a)   It shall be unlawful for any person under the age of 18 years to be in, upon or about any public street, alley, sidewalk, public park, public parking lot or other outdoor area open to general public access within the city, after the hour of 11:00 p.m. on Sunday through Thursday and before the hour of 5:00 a.m. the following day, or after the hour of 12:00 midnight on Friday or Saturday and before 5:00 a.m. the following day.

(b)   The provisions of subsection (a) above shall not apply under the following circumstances:

(1)   When the person, while in, on or about such prescribed areas, is at all times accompanied by any of the following: his or her parent, step-parent or legal guardian; his or her grandparent, step-grandparent, aunt or uncle; his or her spouse; or his or her sibling who is not less than twenty-one (21) years of age;

(2)   When the person is traveling by the most direct route to or from such person’s place of employment, or to or from a church, school, or organized recreational activity that is sponsored or supervised by one or more adults;

(3)   When the person is engaged in normal travel through the city by a direct, continuous route, or is engaged in normal travel by a direct route between a location outside the city and a location inside the city; or

(4)   When the person is traveling by the most direct route to a destination under circumstances of an emergency nature necessitating such travel at such time.

(c)   Any law enforcement officer finding a person under the age of 18 years in, upon or about any public street, alley, sidewalk, public park, public parking lot or other outdoor area open to general public access within the city between the hours as designated in subsection (a) above may stop such person and ascertain the name and address of the person and determine if such person is in violation of the curfew restrictions of this article. If any such person refuses to give his or her correct name or address, or is found to be in violation of the curfew restrictions of this article, such person may be taken into custody.  If taken into custody, the juvenile shall be transported to the police station or other appropriate facility for such handling and processing as is required under state and local law as to juveniles who are taken into custody by law enforcement officials, such procedure being at the time of the enactment of these provisions the contacting of and transfer of custody of the juvenile to a juvenile intake officer.

(d)   It shall be unlawful for any parent; guardian or other person lawfully entitled to the care, custody or control of a person under the age of 18 years to knowingly cause or permit such person to be in violation of this section.

(e)   Any violation of the provisions of this section shall be punishable as and for a Class C violation under the Uniform Public Offense Code as adopted by the city.

(Ord. 4076, Sec. 1; Ord. 4332-00; Ord. 4885-15)

(a)   It shall be unlawful for any person to violate or attempt to violate any of the following ordinances of the Code of the City of Newton, Kansas, by reason of any motive or intent relating to, or any antipathy, animosity or hostility based upon, the race, color, gender, religion, national origin, age, sexual orientation, ancestry, disability or handicap or another individual or group of individuals, to wit:

(1)   Battery (Code Section 17-101; Uniform Public Offense Code, section 3.1);

(2)   Assault (Code Section 17-101; Uniform Public Offense Code, section 3.3);

(3)   Criminal Damage to Property (Code Section 17-101; Uniform Public Offense Code, section 6.6);

(4)   Criminal Trespass (Code Section 17-101; Uniform Public Offense Code, section 6.7);

(5)   Disorderly Conduct (Code Section 17-101; Uniform Public Offense Code, section 9.1);

(6)   Unlawful Use of Weapons (Code Section 17-101; Uniform Public Offense Code, section 10.1);

(7)   Drawing A Weapon Upon Another (Code Section 17-101; Uniform Public Offense Code, section 10.2);

(8)   Unlawful Possession of a Firearm (Code Section 17-101; Uniform Public Offense Code, section 10.35);

(9)   Unlawful Discharge of Firearms (Code Section 17-101; Uniform Public Offense Code, section 10.5);

(10) Unlawful Operation of an Air Gun, Air Rifle, Bow and Arrow, Slingshot or BB Gun (Code Section 17-1201; Uniform Public Offense Code, section 10.6).

(b)   It shall be unlawful for any person to knowingly assemble with two or more persons and agree with such persons to violate any of the criminal laws of the State of Kansas or of the United States with force or violence by reason of any motive or intent relating to, or any antipathy, animosity or hostility based upon, the race, color, gender, religion, national origin, age, sexual orientation, ancestry, disability or handicap or another individual or group of individuals.

(c)   Any violation of the provisions of this section shall be punishable as and for a Class A violation under the Uniform Public Offense Code as adopted by the city.

(Ord. 4084, Secs. 1:2)

(a)   No person shall urinate or defecate in or upon any public street, sidewalk, alley, right-of-way, plaza, or park, or in, upon or within any public building, public property, private parking lot, or in any place open to the public or expose to the public view. This section shall not apply to urination or defecation utilizing appropriate fixtures in any restroom or other facility designed for the sanitary disposal of human waste.

(b)   Any violation of the provisions of this section shall be punishable as and for an unclassified violation under the Uniform Public Offense Code as adopted by the city.

(Ord. 4126, Secs. 1:2)

(Ord. 4196; Repealed by Ord. 4342-00)

Subject to the exceptions below described, the following acts are declared to be loud, disturbing and unnecessary noises in residential areas and along the public ways, and constitute violations of this section:

(a)   No person shall operate or cause or permit the operation of any sound-producing or sound-reproduction device between the hours of 10:00 p.m. and 7:00 a.m., whether from inside or outside a building, in such a manner or with such volume so as to emit sound which can be heard beyond the property line of any residential property. For purposes of these regulations, the term “residential property” is defined as any property upon which a residence or a residential living unit is located and which is located within any of the following zoning districts: R-S, R-1, R-2, R-3, R-3 (FMFD), PUD, M-H, M-P or P-O.

(b)   No person shall operate or cause or permit the operation of any sound-producing or sound-reproduction device which is located within, upon or about any motor vehicle which is located on any public street, public parking lot or other public right-of-way by the playing of a sound-producing device so that the sound is plainly audible at a distance of fifty (50) or more feet from the vehicle. Measurement standards shall be by the auditory senses, based upon direct line of sight. Words or phrases need not be discernible and bass reverberations are included.

(c)   For purposes of these regulations, the terms “sound-producing device” and “sound-reproduction device” is defined as including any of the following: (i) radios; (ii) record, tape and CD players; (iii) sound amplifiers; (iv) musical instruments; (v) loudspeakers; and (vi) any other similar device that produces, reproduces or amplifies sound.

(d)   The provisions of this Section shall not apply to any of the following:

(1)   Any activities conducted as an approved part of a public activity, such as parades, fireworks, sports events, festivals, musical productions and other activities which have the approval within the scope of their authority as conferred by law on any local, state or federal governmental entity, or by any state accredited private or parochial school.

(2)   Any horn, siren or other warning device that is being otherwise lawfully operated under a privilege granted by law.

(3)   Any activities which are reasonably related to the conduct of any business, commercial or industrial enterprise upon property that is zoned for such use or upon which such uses are otherwise lawful.

(4)   Any bell tower or other similar device which is part of a permanent structure and which tolls the passage of time or is otherwise lawfully used for ceremonial purposes.

(5)   The normal and customary engine noises produced by any motor vehicle that is otherwise being lawfully operated upon the public ways or in private driveways or parking lots.

(6)   The normal and customary noises produced by machinery or equipment that is being used on public or private property between the hours of 10:00 p.m. and 7:00 a.m. in order to remedy some emergency or other exigent circumstances.

(e)   Nothing in the exceptions set forth in subsection (d) above shall serve to allow or authorize any activity which would otherwise be regarded as a public nuisance other than by the provisions of this Section.

(f)   Violation of the provisions of this Section shall be punishable as an unclassified violation under the Uniform Public Offense Code as adopted by the City.

(Ord. 4275-98)

(a)   Chemical test refusal is refusing to submit to a test or tests to determine the presence of alcohol or drugs deemed consented to under subsection (a) of K.S.A. 8-1001, and amendments thereto, if such person has:

(1)   Any prior test refusal as defined in K.S.A. 8-1013, and amendments thereto, which occurred on or after July 1, 2001, and which occurred when such person was 18 years of age or older; or

(2)   Any prior conviction for a violation of K.S.A. 8-1567 or 8-2,144, and amendments thereto, or a violation of an ordinance of any city or resolution of any county which prohibits the acts that such section prohibits, or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging any such violations, either or which occurred on or after July 1, 2001, and which occurred when such person was 18 years of age or older.

(b)   On a first conviction for chemical test refusal, the person convicted shall be sentenced to not less than 90 days and not more than one year of imprisonment and fined not less than $1,250 and not more than $1,750. The person convicted shall serve at least five consecutive days of imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days of imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours of 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 K.S.A. 21-6609, and amendments thereto, to serve the five days of imprisonment mandated by this subsection only after such person has served 48 consecutive hours of 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.

(c)   On a second conviction for chemical test refusal, the person convicted shall be sentenced to not less than 90 days and not more than one year of imprisonment and fined not less than $1,750 and not 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 of imprisonment. The 90 days of imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours of 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 2,160 hours of confinement. Such 2,160 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 K.S.A. 21-6609, and amendments thereto, to serve the 90 days of imprisonment mandated by this subsection only after such person has served 48 consecutive hours of 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 2,160 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 2,160 hours.

(d)   In addition to the above, prior to sentencing for any conviction for chemical test refusal, 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 recommendation made by the provider after such evaluation, unless otherwise ordered by the court.

(e)   Any person convicted for chemical test refusal who had one or more children under the age of 14 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 herein. 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)   The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessments 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.

(g)   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 $5 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.

(h)   The court shall electronically report to the Kansas Department of Revenue, Division of Vehicles, 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. Prior to sentencing under the provisions of this section, the court shall request and shall receive from the said Division of Vehicles a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.

(i)    For the purpose of determining whether a conviction is a first or second conviction in sentencing under this section:

(1)   Convictions for a violation of K.S.A. 8-1567, and amendments thereto, or a violation of an ordinance of any city or resolution of any county which prohibits the acts that such statute prohibits, or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging any such violations, shall be taken into account, but only convictions or diversions occurring:

(i)    On or after July 1, 2001; and

(ii)   When such person was 18 years of age or older;

(iii)  Provided, however, that nothing in this provision shall be construed as preventing the court from considering any convictions or diversions occurring during the person’s lifetime in determining the sentence to be imposed within the limits provided for a first or second offense.

(2)   Any convictions for a violation of the following which occurred during a person’s lifetime shall be taken into account, but only convictions occurring when such person was 18 years of age or older:

(i)    This section and Section 2 of House Substitute for Senate Bill 60 (2012);

(ii)   Driving a commercial motor vehicle under the influence in violation of K.S.A. 8-2,144, and amendments thereto, or a violation of an ordinance of any city or resolution of any county which prohibits the acts that such statute prohibits;

(iii)  Operating a vessel under the influence of alcohol or drugs in violation of K.S.A. 32-1131, and amendments thereto;

(iv)  Involuntary manslaughter while driving under the influence of alcohol or drugs in violation of K.S.A. 21-3442 prior to its repeal, or in violation of subsection (a)(3) of K.S.A. 2011 Supp. 21-5405, and amendments thereto; and

(v)   Aggravated vehicular homicide in violation of K.S.A. 21-3405a prior to its repeal, or in violation of vehicular battery, K.S.A. 21-3405b, prior to its repeal, if any such crime was committed while committing a violation of K.S.A. 8-1567, and amendments thereto;

(3)   "Conviction" includes:

(i)    Entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of a crime described in this section; or

(ii)   A conviction of a violation of an ordinance of a city in this state, a resolution of a county in this state or any law of another state which would constitute a crime described in this section.

(4)   It is irrelevant whether an offense occurred before or after conviction for a previous offense;

(5)   Multiple convictions of any crime described in this section arising from the same arrest shall only be counted as one conviction;

(6)   The prior conviction that is an element of the crime of chemical test refusal shall not be used for the purpose of determining whether a conviction is a first or second conviction in sentencing under this section and shall not be considered in determining the sentence to be imposed within the limits provided for a first or second offense, and;

(7)   A person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section, or a violation of an ordinance of any city or resolution of any county which prohibits the acts of this section, only once during the person’s lifetime.

(j)    Upon the filing of a complaint, citation or notice to appear alleging a person has violated this section, and prior to conviction thereof, the city prosecutor shall review the records received to determine whether there are any past convictions. The city prosecutor shall request and receive:

(1)   The city prosecutor shall request and shall receive:

(i)    From the Division of Vehicles, a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state; and

(ii)   From the Kansas Bureau of Investigation Central Repository, all criminal history record information concerning such person.

(2)   If the elements of such ordinance violation are the same as the elements of a violation of Section 2 of House Substitute for Senate Bill 60 (2012) that would constitute and be punished as a felony, the city prosecutor shall refer the violation to the Harvey County Attorney for prosecution.

(k)   No plea bargaining agreement shall be entered into and 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 pursuant to K.S.A. 12-4413, et seq., and amendments thereto, shall not constitute plea bargaining.

(l)    As used in this section, "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 governing body of the city.

(Ord. 4805-12; Code 2014)