HOUSE BILL No. 2060
By Representative O'Neal
AN ACT concerning crimes and punishment; relating to cigarette or to-
bacco infractions; amending K.S.A. 1996 Supp. 21-3105, 22-3404, 22-
3409, 22-3412 and 22-3609a and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 1996 Supp. 21-3105 is hereby amended to read as
follows: 21-3105. A crime is an act or omission defined by law and for
which, upon conviction, a sentence of death, imprisonment or fine, or
both imprisonment and fine, is authorized or, in the case of a cigarette
or tobacco infraction or traffic infraction, a fine is authorized. Crimes are
classified as felonies, misdemeanors, cigarette or tobacco infractions and
(1) A felony is a crime punishable by death or by imprisonment in
any state correctional institution or a crime which is defined as a felony
(2) A traffic infraction is a violation of any of the statutory provisions
listed in subsection (c) of K.S.A. 8-2118 and amendments thereto.
(3) A cigarette or tobacco infraction is a violation of subsection (m)
or (n) of K.S.A. 79-3321 and amendments thereto.
(4) All other crimes are misdemeanors.
Sec. 2. K.S.A. 1996 Supp. 22-3404 is hereby amended to read as
follows: 22-3404. (1) The trial of misdemeanor
, cigarette or tobacco in-
fraction and traffic infraction offense cases shall be to the court unless a
jury trial is requested in writing by the defendant not later than seven
days after first notice of trial assignment is given to the defendant or such
defendant's counsel. The time requirement provided in this subsection
regarding when a jury trial shall be requested may be waived in the dis-
cretion of the court upon a finding that imposing such time requirement
would cause undue hardship or prejudice to the defendant.
(2) A jury in a misdemeanor , cigarette or tobacco infraction or traffic
infraction offense case shall consist of six members.
(3) Trials in the municipal court of a city shall be to the court.
(4) Except as otherwise provided by law, the rules and procedures
applicable to jury trials in felony cases shall apply to jury trials in misde-
meanor , cigarette or tobacco infraction and traffic infraction offense cases.
(5) The trial of cigarette or tobacco infraction or traffic infraction
cases shall be to the court.
Sec. 3. K.S.A. 1996 Supp. 22-3409 is hereby amended to read as
follows: 22-3409. When a jury trial is demanded, as provided by law, for
traffic infraction, cigarette or tobacco infraction offense or misdemeanor
cases, the judge shall summon not less than 12 prospective jurors from
the source and in the manner provided for the summoning of other petit
jurors in the district court in the county.
Sec. 4. K.S.A. 1996 Supp. 22-3412 is hereby amended to read as
follows: 22-3412. (a) (1) For crimes committed before July 1, 1993, per-
emptory challenges shall be allowed as follows:
(A) Each defendant charged with a class A felony shall be allowed 12
(B) Each defendant charged with a class B felony shall be allowed
eight peremptory challenges.
(C) Each defendant charged with a felony other than class A or class
B felony shall be allowed six peremptory challenges.
(D) Each defendant charged with a misdemeanor , cigarette or to-
bacco infraction or traffic infraction shall be allowed three peremptory
(E) Additional peremptory challenges shall not be allowed on account
of separate counts charged in the complaint, information or indictment.
(F) The prosecution shall be allowed the same number of peremptory
challenges as all the defendants.
(2) For crimes committed on or after July 1, 1993, peremptory chal-
lenges shall be allowed as follows:
(A) Each defendant charged with an off-grid felony or a nondrug or
drug felony ranked at severity level 1 shall be allowed 12 peremptory
(B) Each defendant charged with a nondrug felony ranked at severity
level 2, 3, 4, 5 or 6, or a drug felony ranked at severity level 2 or 3, shall
be allowed 8 peremptory challenges.
(C) Each defendant charged with an unclassified felony, a nondrug
severity level 7, 8, 9 or 10, or a drug severity level 4 felony shall be allowed
six peremptory challenges.
(D) Each defendant charged with a misdemeanor or traffic offense
shall be allowed three peremptory challenges.
(E) The prosecution shall be allowed the same number of peremp-
tory challenges as all defendants.
(F) The most serious penalty offense charged against each defendant
furnishes the criterion for determining the allowed number of peremp-
tory challenges for that defendant.
(G) Additional peremptory challenges shall not be allowed when sep-
arate counts are charged in the complaint, information or indictment.
(H) Except as otherwise provided in this subsection, the provisions
of this section shall apply. In applying the provisions of this section, the
trial court may determine the number of peremptory challenges to allow
by reviewing the classification for the crime charged, or nearest compa-
rable felony, as it was classified under the criminal law in effect prior to
July 1, 1993. If the severity level of the most serious crime charged raises
the potential penalty above that of another crime which was classified
higher under the criminal law in effect prior to July 1, 1993, the defendant
shall be allowed the number of peremptory challenges as for that higher
classified crime under the prior system.
(I) The trial court shall resolve any conflicts with a liberal construc-
tion in favor of allowing the greater number of peremptory challenges.
(b) After the parties have interposed all of their challenges to jurors,
or have waived further challenges, the jury shall be sworn to try the case.
(c) Immediately after the jury is empaneled and sworn, a trial judge
may empanel one or more alternate or additional jurors whenever, in the
judge's discretion, the judge believes it advisable to have such jurors avail-
able to replace jurors who, prior to the time the jury retires to consider
its verdict, become or are found to be unable to perform their duties.
Such jurors shall be selected in the same manner, have the same quali-
fications, and be subject to the same examination and challenges and take
the same oath and have the same functions, powers and privileges as the
regular jurors. Each party shall be entitled to one peremptory challenge
to such alternate jurors. Such alternate jurors shall be seated near the
other jurors, with equal power and facilities for seeing and hearing the
proceedings in the case, and they must attend at all times upon the trial
of the cause in company with the other jurors. They shall obey the orders
of and be bound by the admonition of the court upon each adjournment,
but if the regular jurors are ordered to be kept in custody during the trial
of the cause, such alternate jurors also shall be kept in confinement with
the other jurors. Upon final submission of the case to the jury, the alter-
nate jurors may be discharged or they may be retained separately and not
discharged until the final decision of the jury. If the alternate jurors are
not discharged on final submission of the case and if any regular juror
shall be discharged from jury service in any such action prior to the jury
reaching its verdict, the court shall draw the name of an alternate juror
who shall replace the juror so discharged and be subject to the same rules
and regulations as though such juror had been selected as one of the
Sec. 5. K.S.A. 1996 Supp. 22-3609a is hereby amended to read as
follows: 22-3609a. (1) A defendant shall have the right to appeal from any
judgment of a district magistrate judge. The administrative judge shall be
responsible for assigning a district judge for any such appeal. The appeal
shall stay all further proceedings upon the judgment appealed from.
(2) An appeal to a district judge shall be taken by filing a notice of
appeal with the clerk of the court. No appeal shall be taken more than
10 days after the date of the judgment appealed from.
(3) The clerk of the district court shall deliver the complaint, warrant
and any appearance bond to the district judge to whom such appeal is
assigned. The case shall be tried de novo before the assigned district
(4) No advance payment of a docket fee shall be required when the
appeal is taken.
(5) All appeals taken by a defendant from a district magistrate judge
in traffic infraction, cigarette or tobacco infraction offense and misde-
meanor cases shall be tried by the court unless a jury trial is requested in
writing by the defendant.
(6) Notwithstanding the other provisions of this section, appeal from
a conviction rendered pursuant to subsection (c) of K.S.A. 22-2909 and
amendments thereto shall be conducted only on the record of the stip-
ulation of facts relating to the complaint.
Sec. 6. K.S.A. 1996 Supp. 21-3105, 22-3404, 22-3409, 22-3412 and
22-3609a are hereby repealed.
Sec. 7. This act shall take effect and be in force from and after its
publication in the Kansas register.