2009 Kansas Code
Chapter 75 STATE DEPARTMENTS; PUBLIC OFFICERS AND EMPLOYEES
Article 7c FIREARMS
75-7c12. Carrying concealed weapon while under influence of alcohol or drugs prohibited; evidence; testing; revocation of license, when.

75-7c12

Chapter 75.--STATE DEPARTMENTS; PUBLIC OFFICERS AND EMPLOYEES Article 7c.--FIREARMS

      75-7c12.   Carrying concealed weapon while under influence of alcohol or drugs prohibited; evidence; testing; revocation of license, when. (a) It is a class A nonperson misdemeanor for a person licensed pursuant to this act to carry a concealed weapon while under the influence of alcohol or drugs, or both.

      (b)   In any criminal prosecution for carrying a concealed weapon while under the influence of alcohol or drugs, or both, evidence of the concentration of alcohol or drugs in the defendant's blood, urine, breath or other bodily substance may be admitted and shall give rise to the following:

      (1)   If the alcohol concentration is less than .08, that fact may be considered with other competent evidence to determine if the defendant was under the influence of alcohol, or both alcohol and drugs.

      (2)   If the alcohol concentration is .08 or more, it shall be prima facie evidence that the defendant was under the influence of alcohol.

      (3)   If there was present in the defendant's bodily substance any narcotic, hypnotic, somnifacient, stimulating or other drug which has the capacity to render the defendant incapacitated, that fact may be considered to determine if the defendant was under the influence of drugs, or both alcohol and drugs.

      (c)   The provisions of subsection (b) shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or drugs, or both.

      (d)   Any person licensed pursuant to this act is deemed to have given consent to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to under this subsection shall include all quantitative and qualitative tests for alcohol and drugs. A law enforcement officer shall request a person to submit to a test or tests deemed consented to under this subsection if such person is arrested or otherwise taken into custody for any offense involving carrying of a concealed weapon while under the influence of alcohol or drugs, or both, in violation of this section and the arresting officer has reasonable grounds to believe that prior to arrest the person was carrying a concealed weapon under the influence of alcohol or drugs, or both. The test or tests shall be administered in the manner provided by for administration of tests for alcohol or drugs pursuant to K.S.A. 8-1001, and amendments thereto, and the person performing or assisting in the performance of any such test and the law enforcement officer requesting any such test shall be immune from civil and criminal liability to the same extent as in the case of tests performed pursuant to that statute.

      (e)   Before a test or tests are administered under this section, the person shall be given oral and written notice that:

      (1)   Kansas law requires the person to submit to and complete one or more tests of breath, blood or urine to determine if the person is under the influence of alcohol or drugs, or both;

      (2)   the opportunity to consent to or refuse a test is not a constitutional right;

      (3)   there is no constitutional right to consult with an attorney regarding whether to submit to testing;

      (4)   if the person refuses to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, the person's license to carry a concealed weapon will be revoked for a minimum of three years; and

      (5)   after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities and physicians.

      (f)   After giving the foregoing information, a law enforcement officer shall request the person to submit to testing. The selection of the test or tests shall be made by the officer. If the person refuses to submit to and complete a test as requested pursuant to this section, additional testing shall not be given unless the law enforcement officer has probable cause to believe that the person while under the influence of alcohol or drugs, or both, was carrying a concealed weapon used in killing or seriously injuring another person. If the test results show a blood or breath alcohol concentration of .08 or greater, the person's license to carry a concealed weapon shall be subject to suspension or revocation pursuant to this act.

      (g)   The person's refusal shall be admissible in evidence against the person at any trial on a charge arising out of carrying a concealed weapon while under the influence of alcohol or drugs, or both.

      (h)   Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.

      (i) (1)   If the person refuses to submit to testing when requested pursuant to this section, the person's weapon and license shall be seized by the law enforcement officer and the person's license shall be forwarded to the attorney general, together with the officer's certification of the following: (A) There existed reasonable grounds to believe the person was carrying a concealed weapon while under the influence of alcohol or drugs, or both, and a statement of such grounds; (B) the person had been placed under arrest or was in custody; (C) a law enforcement officer had presented the person with the oral and written notice required by this section; and (D) the person refused to submit to and complete a test as requested by a law enforcement officer.

      (2)   If the person fails a test administered pursuant to this section, the person's weapon and license shall be seized by the law enforcement officer and the person's license shall be forwarded to the attorney general, together with the officer's certification of the following: (A) There existed reasonable grounds to believe the person was carrying a concealed weapon while under the influence of alcohol or drugs, or both; (B) the person had been placed under arrest or was in custody; (C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; and (D) the result of the test showed that the person had an alcohol concentration of .08 or greater in such person's blood or breath.

      (3)   With regard to failure of a breath test, in addition to those matters required to be certified under subsection (h)(2), the law enforcement officer shall certify that: (A) The testing equipment used was certified by the Kansas department of health and environment; (B) the testing procedures used were in accordance with the requirements set out by the Kansas department of health and environment; and (C) the person who operated the testing equipment was certified by the Kansas department of health and environment to operate such equipment.

      (4)   For purposes of this subsection, certification shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required. The signed certification or a copy or photostatic reproduction thereof shall be admissible in evidence in all proceedings brought pursuant to this act, and receipt of any such certification, copy or reproduction shall accord the department authority to proceed as set forth herein. Any person who signs a certification submitted to the attorney general knowing it contains a false statement is guilty of a class B nonperson misdemeanor.

      (5)   Upon receipt of a certification in accordance with this section, the attorney general shall revoke the person's license for three years.

      (j)   It shall not be a defense that the person did not understand the written or oral notice required by this section.

      (k)   No test results shall be suppressed because of technical irregularities in the consent or notice required pursuant to this act.

      (l)   Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.

      (m)   Upon the request of any person submitting to testing under this section, a report of the results of the testing shall be made available to such person.

      History:   L. 2006, ch. 32, § 12; L. 2006, ch. 210, § 9; July 1.