Chapter 2.110
MUNICIPAL COURT

Sections:

Article I. Generally

2.110.010    Court costs and fees.

Article II. Code of Procedure for Municipal Court

2.110.020    Title.

2.110.030    Scope.

2.110.040    Intent – Construction – Procedure not provided.

2.110.050    Municipal court – Jurisdiction.

2.110.060    Municipal judge – Appointment – Qualifications – Compensation.

2.110.070    Municipal judge – Powers and duties.

2.110.080    Municipal judge – Absence – Vacancy – Pro tem.

2.110.090    Clerk of the municipal court – Appointment – Powers and duties – Execution of bond.

2.110.100    Municipal court – Courtroom, supplies, records – Sessions, time, place.

2.110.110    City attorney to prosecute.

2.110.120    Law enforcement officers – Employment – Powers.

2.110.130    Definitions.

2.110.140    Performance of marriage ceremonies by municipal judge – Disposition of honorariums.

2.110.150    Commencement of prosecution.

2.110.160    Complaint – Requirements – Form.

2.110.170    Complaint – How used – Issuance of warrant – Refusal to issue – Effect.

2.110.180    Notice to appear – Contents – Form.

2.110.190    Complaint and notice to appear in municipal court.

2.110.200    Notice to appear – When used.

2.110.210    Notice to appear – Service – Return.

2.110.220    Warrant – Contents – Form.

2.110.230    Warrants – When issued – Limitations.

2.110.240    Warrants – Service.

2.110.250    Detention – Service of complaint and summons.

2.110.260    Arrest by law enforcement officer – When authorized.

2.110.270    Persons under arrest – Procedures – Right to post bond – Release on personal recognizance.

2.110.280    Notice – Explanation of rights.

2.110.290    Appearance bonds – Methods of securing.

2.110.300    Personal recognizance.

2.110.310    Failure to appear.

2.110.320    Appearance bond – Posting – Form.

2.110.330    Schedule of fines for municipal ordinance traffic infractions and certain other ordinances – Violations excluded from schedule – Fines upon plea of guilty or no contest – Procedure.

2.110.340    Traffic violations – Failure to appear, service of warrant and collection of bond.

2.110.350    Matters before trial.

2.110.360    Appearance of accused person – Action by counsel or by mail.

2.110.370    Time of arraignment.

2.110.380    Arraignment.

2.110.390    Appointment of counsel, when.

2.110.400    Pleas – Failure to appear.

2.110.410    Procedure upon plea of guilty.

2.110.420    Motions.

2.110.430    Continuances.

2.110.440    Discovery.

2.110.450    Subpoenas – Witnesses’ expenses – Abuse of subpoenas, costs.

2.110.460    Municipal diversion agreements – Contents – Copy to Kansas Bureau of Investigation, when – Availability to prosecuting attorney.

2.110.470    Municipal court diversion – Definitions.

2.110.480    Municipal court diversion – When agreements to be offered – Written policies – Information to be furnished – Right to counsel.

2.110.490    Municipal court diversion – Factors to consider – When prohibited.

2.110.500    Municipal court diversion – Provisions of diversion agreement – Waiver of certain rights – Effect of failure to fulfill or accept agreement – Duties of city attorney and division of vehicles.

2.110.510    Municipal court diversion – Condition diversion on plea prohibited – Nonadmissible evidence.

2.110.520    Failure to fulfill diversion agreement – Satisfactory fulfillment – Records.

2.110.530    Defendants under 21 years – Drug and alcohol evaluations.

2.110.540    Trial.

2.110.550    Trial – Order of presentation.

2.110.560    Evidence.

2.110.570    Amendments to complaint.

2.110.580    Joinder of two or more accused persons.

2.110.590    Judgment.

2.110.600    Judgment – Docket.

2.110.610    Sentence – Possible disposition.

2.110.620    Sentence – Imprisonment – Fine.

2.110.630    Parole.

2.110.640    Judgment set aside, when.

2.110.650    Correction of errors.

2.110.660    Expungement of certain convictions.

2.110.670    Expungement of arrest records.

2.110.680    Conviction of ordinances comparable to class A or B misdemeanor or assault – Fingerprinting – Costs.

    Cross References: General penalty, TMC 1.10.070; city attorney, TMC 2.25.120; municipal judge, TMC 2.25.150; charter ordinances pertaining to municipal court, Appx. A, § A10-1 et seq.

    State Law References: Code of procedure for municipal courts, K.S.A. 12-4101 et seq.

Article I. Generally

2.110.010 Court costs and fees.

The following costs and fees may be charged in the municipal court:

(a) Mandatory Costs. Unless otherwise prohibited by city ordinance or Kansas law, defendants who are convicted shall be assessed costs for the administration of justice in any case as follows:

Description	Traffic – Moving Violations and Other Infractions	Parking Violations	Traffic – Nonmoving	Class A or B Misdemeanors or Class C Assault	Adult Seatbelt Violations
Judicial Education Fund	.50		.50	.50
Local Law Enforcement Training Fund	1.00			1.00
Law Enforcement Center Training Fund	11.50			11.50
Commission on Peace Officer Standards and Training Fund	2.50			2.50
Juvenile Detention Facility	2.00			2.00
Protection from Abuse Fund	.50			.50
Crime Victims Assistance Fund	.50			.50
Trauma Fund	1.00			1.00
Crime Prevention Fund	3.50	3.50	3.50	3.50
Forensic Psychologist Fund	1.00			1.00
Seatbelt					None
Court Technology Fund	5.00	5.00	5.00	5.00
General Fund	43.00	63.50	63.00	110.00
TOTAL	72.00	72.00	72.00	139.00	-0-

(b) Additional Costs. In addition, defendants may be assessed the following costs:

(1) Warrant Fees. For each warrant issued, unless waived for good cause by the judge, a fee of $25.00 shall be assessed.

(2) Incarceration Expenses. Unless waived for good cause by the judge, a fee for incarceration expenses shall be assessed against a defendant in each case in which said defendant is incarcerated pursuant to an order of the municipal court judge. The incarceration fee referenced in this subsection shall be determined by multiplying the then current daily rate of incarceration charged to the city of Topeka by Shawnee County department of corrections by the number of days actually served by the defendant.

(3) Court-Appointed Attorneys. If the defendant is convicted and, unless waived or reduced for good cause by the judge, court-appointed attorney fees shall be assessed by the court against a defendant in each case in which a municipal court judge appoints counsel for said defendant.

(4) Mileage. Mileage, subpoena and witness costs for defense witnesses shall be as set forth in TMC 2.110.450.

(5) Miscellaneous Fees and Costs. If the defendant is convicted, additional costs and fees may be assessed by the municipal court for service of process, transcripts and depositions, commission on collections and credit/debit card transactions.

(c) Except as provided herein, the judge or clerk of the municipal court shall remit at least monthly the appropriate assessments received pursuant to this section as required by state law, Kansas Supreme Court rule or city of Topeka policy or ordinance.

(d) For the purpose of determining the amounts to be assessed according to this section, if more than one complaint is filed against an individual arising out of the same incident, all such complaints shall be considered as one case. (Ord. 19755 § 1, 8-21-12.)

Article II. Code of Procedure for Municipal Court

    Editor’s Note: Ord. No. 17666, § 72, adopted March 2, 2001, repealed Code 1995 §§ 50-36 – 50-42 and 50-56 – 50-61 in their entirety. Formerly, said sections pertained to similar subject matter. Said ordinance, §§ 1 – 71, set out provisions included herein as TMC 2.110.020 – 2.110.680 to read as herein set out.

    Further, this article shall take effect and be in force from and after its passage, approval and publication in the official city newspaper, and the expiration of 62 days after final publication of Charter Ordinance No. 86 governing this subject. In the event of a referendum pursuant to Article 12, § 5(c)(3) of the Kansas Constitution on Charter Ordinance No. 86, this article shall take effect one day after the effective date of the Charter Ordinance No. 86.

2.110.020 Title.

This article is called and may be cited as the Topeka code of procedure for municipal court. (Ord. 17666 § 1, 3-27-01. Code 1995 § 50-36.)

    State Law References: Similar state statute, K.S.A. 12-4101.

2.110.030 Scope.

This code governs the practice and procedure in all cases in the Topeka municipal court. (Ord. 17666 § 2, 3-27-01. Code 1995 § 50-37.)

    State Law References: Similar state statute, K.S.A. 12-4102.

2.110.040 Intent – Construction – Procedure not provided.

This code is intended to provide for the just determination of every proceeding for violation of city ordinances. Its provisions shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. If no procedure is provided by this code, the court shall proceed in any lawful manner consistent with any applicable law and not inconsistent with this code. (Ord. 17666 § 3, 3-27-01. Code 1995 § 50-38.)

    State Law References: Similar state statute K.S.A. 12-4103.

2.110.050 Municipal court – Jurisdiction.

The municipal court of Topeka shall have jurisdiction to hear and determine cases involving violations of the ordinances of the city. Topeka municipal court judges shall also have jurisdiction to issue search warrants based on probable cause for violations of municipal ordinance, excluding warrants by the environmental code services director or employees of that agency. (Ord. 17666 § 4, 3-27-01. Code 1995 § 50-39.)

    State Law References: Similar state statute, K.S.A. 12-4104.

2.110.060 Municipal judge – Appointment – Qualifications – Compensation.

The municipal court shall be presided over by a municipal judge. The judge shall be selected in the manner provided by city ordinance. The person who is selected shall be:

(a) A citizen of the United States;

(b) A graduate of a high school or secondary school or the equivalent thereof; and

(c) An attorney regularly admitted to practice law in the state of Kansas.

The municipal judge shall receive a monthly or annual salary set in accordance with city rules and regulations and the city pay plan. (Ord. 17666 § 5, 3-27-01. Code 1995 § 50-40.)

    State Law References: Similar state statute, K.S.A. 12-4105.

2.110.070 Municipal judge – Powers and duties.

(a) The municipal judge shall have the power to administer the oaths and enforce all orders, rules and judgments made by such municipal judge; may issue search warrants based on probable cause for violations of municipal ordinance, excluding warrants sought by the public works director or designated employees of that department; and may fine or imprison for contempt in the same manner and to the same extent as a judge of the district court.

(b) The municipal judge shall have the power to hear and determine all cases properly brought before such municipal judge and to: issue search or arrest warrants for violations of municipal ordinance, excluding warrants sought by the environmental code services director or employees of that agency; grant continuances; sentence those found guilty to a fine or confinement in jail, or both; commit accused persons to jail in default of bond; determine applications for parole; release on probation; grant time in which a fine may be paid; correct a sentence; suspend imposition of a sentence; set aside a judgment; permit time for post trial motions; and discharge accused persons.

(c) The municipal judge shall maintain a docket in which every cause commenced before such municipal judge shall be entered. Such docket shall contain the names of the accused persons and complainant, the nature or character of the offense, the date of trial, the names of all witnesses sworn and examined, the finding of the court, the judgment and sentence, the date of payment, the date of issuing commitment, if any, and every other fact necessary to show the full proceedings in each case.

(d) The municipal judge shall promptly make such reports and furnish the information requested by any departmental justice or the judicial administrator, in the manner and form prescribed by the supreme court.

(e) The municipal judge shall ensure that information concerning dispositions of city ordinance violations that result in convictions comparable to convictions for class A and B misdemeanors under Kansas Criminal Statutes is forwarded to the Kansas Bureau of Investigation central repository. This information shall be transmitted, on a form or in a format approved by the attorney general, within 30 days of final disposition. (Ord. 18734 § 2, 10-17-06; Ord. 18209 § 1, 4-6-04; Ord. 17929 § 1, 12-17-02; Ord. 17666 § 6, 3-27-01. Code 1995 § 50-41.)

    Cross References: Department of public works, TMC 2.25.170.

    State Law References: Similar state statute, K.S.A. 12-4106.

2.110.080 Municipal judge – Absence – Vacancy – Pro tem.

In the event the municipal judge is temporarily unable to preside due to absence, illness or disqualification, the municipal judge shall designate an attorney or other qualified person to act as judge pro tempore. In the event the municipal judge fails to appoint a judge pro tempore, the judge pro tempore shall be appointed in the same manner as the municipal judge is selected. The judge pro tempore shall receive compensation as shall be provided by ordinance, payable in the same manner as the compensation of the regular municipal judge.

In the event a vacancy shall occur in the office of municipal judge, a successor shall be appointed to fill the unexpired term in the same manner as the municipal judge was appointed. (Ord. 17666 § 7, 3-27-01. Code 1995 § 50-42.)

    State Law References: Similar state statute, K.S.A. 12-4107.

2.110.090 Clerk of the municipal court – Appointment – Powers and duties – Execution of bond.

The city manager may provide for the office of clerk of the municipal court. The municipal judge shall appoint such clerk or if no clerk is provided for, the judge shall also serve as clerk. The clerk shall issue all process of the court, administer oaths, file and preserve all papers, docket cases and set same for trial and shall perform such further acts as may be necessary to carry out the duties and responsibilities of the court. The clerk shall receive, account for and pay to the city treasurer monthly all fines and forfeited bonds paid into the court.

The clerk of the municipal court, or the municipal judge if no clerk is appointed, within 10 days after selection, and before entering upon the duties of office, shall execute to the city such bond as the city manager may require, which shall be approved by the city manager, and filed in the office of the city clerk, conditioned for the faithful performance of the duties required of such clerk by law, and for the faithful application and payment of all moneys that may come into such clerk’s hands in the execution of the duties of the office. The city shall pay the cost of such bond. (Ord. 18477 § 8, 7-12-05; Ord. 17666 § 8, 3-27-01. Code 1995 § 50-43.)

    Cross References: City treasurer, TMC 2.25.140.

    State Law References: Similar state statute, K.S.A. 12-4108.

2.110.100 Municipal court – Courtroom, supplies, records – Sessions, time, place.

The governing body of the city shall provide at the expense of the city a suitable courtroom for the municipal court, together with all necessary supplies and records. Municipal court shall be held at such time and places designated by the municipal judge. (Ord. 17666 § 9, 3-27-01. Code 1995 § 50-44.)

    Cross References: City council – mayor, Chapter 2.15 TMC.

    State Law References: Similar state statute, K.S.A. 12-4109.

2.110.110 City attorney to prosecute.

The city attorney, in person or by assistants, shall prosecute all causes in the municipal court. (Ord. 17666 § 10, 3-27-01. Code 1995 § 50-45.)

    Cross References: City attorney, TMC 2.25.120.

    State Law References: Similar state statute, K.S.A. 12-4110.

2.110.120 Law enforcement officers – Employment – Powers.

The city manager may employ law enforcement officers who shall have power to execute all process issued by any municipal judge within the state and delivered to him or her for that purpose, to detain persons, to place them in custody, and to arrest them, pursuant to the terms of this article.

The powers of law enforcement officers with respect to the code of criminal procedure shall not be reduced by this code. (Ord. 18477 § 9, 7-12-05; Ord. 17666 § 11, 3-27-01. Code 1995 § 50-46.)

    Cross References: Police department, TMC 2.25.230.

    State Law References: Similar state statute, K.S.A. 12-4111.

2.110.130 Definitions.

As used in this article:

(a) “Appearance bond” means an undertaking, with or without security, entered into by a person in custody by which the person is bound to comply with the conditions of the undertaking.

(b) “Accused person” means a person, corporation or other legal entity accused by a complaint of the violation of a city ordinance.

(c) “Arraignment” means the formal act of calling the person accused of violating an ordinance before the municipal court to inform the person of the offense with which the person is charged, to ask the person whether the person is guilty or not guilty and, if guilty, to impose sentence.

(d) “Arrest” means the taking of a person into custody in order that the person will appear to answer for the violation of an ordinance. The giving of a notice to appear is not an arrest.

(e) “Bail” is the security given for the purpose of insuring compliance with the terms of an appearance bond.

(f) “City attorney” means any attorney who represents the city in the prosecution of an accused person for the violation of a city ordinance.

(g) “Complaint” means a sworn written statement, or a written statement by a law enforcement officer, the city attorney or an assistant city attorney, an animal control officer, parking control officer as specifically authorized by TMC 10.60.350, property maintenance inspector as specifically authorized by TMC 10.60.120 or a fire department employee with authority to enforce the fire code of the essential facts constituting a violation of an ordinance.

(h) “Custody” means the restraint of a person pursuant to an arrest.

(i) “Detention” means the temporary restraint of a person by a law enforcement officer.

(j) “Law enforcement officer” means any person who by virtue of office or public employment is vested by law with a duty to maintain public order and to make arrests for violation of the laws of the state of Kansas or ordinances of any municipality thereof. For the purposes of signing and serving a uniform complaint and notice to appear or a subpoena, the term shall also mean the city attorney or an assistant city attorney, an animal control officer, parking control officer as specifically authorized by TMC 10.60.350, property maintenance inspector as specifically authorized by TMC 10.60.120 or a fire department employee with authority to enforce the fire code.

(k) “Notice to appear” is a written notice to a person accused by a complaint of having violated an ordinance of a city to appear at a stated time and place to answer to the charge of the complaint.

(l) “Subpoena” is a process issued by the court to cause a witness to appear and give testimony at a time and place therein specified.

(m) “Ordinance traffic infraction” is a violation of an ordinance that proscribes or requires the same behavior as that proscribed or required by a statutory provision that is classified as a traffic infraction in K.S.A. 8-2118 (1998 Supp.) and amendments thereto.

(n) “Warrant” is a written order made by a municipal judge directed to any law enforcement officer commanding the officer to arrest the person named or described in it.

(o) “Ordinance cigarette or tobacco infraction” is a violation of an ordinance that proscribes the same behavior as proscribed by subsection (m) or (n) of K.S.A. 79-3321 and amendments thereto. (Ord. 19250 § 1, 4-28-09. Code 1995 § 50-48.)

    Cross References: Definitions generally, TMC 1.10.020.

    State Law References: Similar state statute, K.S.A. 12-4113.

2.110.140 Performance of marriage ceremonies by municipal judge – Disposition of honorariums.

A municipal judge may retain any honorarium received for such judge’s services in performing a marriage ceremony, except when such services are performed between the hours of 8:00 a.m. and 5:00 p.m. on a day when the court is regularly open for the conduct of business in which event such honorarium shall be remitted to the city treasurer for deposit in the city general fund. (Ord. 17666 § 16, 3-27-01. Code 1995 § 50-51.)

    Cross References: City treasurer, TMC 2.25.140.

    State Law References: Similar state statute, K.S.A. 12-4118.

2.110.150 Commencement of prosecution.

The prosecution for the violation of municipal ordinances shall be commenced by the filing of a complaint with the municipal court. (Ord. 17666 § 17, 3-27-01. Code 1995 § 50-52.)

    State Law References: Similar state statute, K.S.A. 12-4201.

2.110.160 Complaint – Requirements – Form.

A complaint shall be in writing and shall be signed by the complainant. More than one violation may be charged in the same complaint. A complaint shall be deemed sufficient if in substantially the same form of the complaint set forth in K.S.A. 12-4205 and amendments thereto or in substantially the following form:

IN THE MUNICIPAL COURT
OF TOPEKA, KANSAS

The City of Topeka, Kansas,
vs.
________________________________

________________________________

(Accused person)

________________________________

The undersigned, complains that on or about the _________________________ day of ______________, A.D., ________, in the City of Topeka, County of Shawnee, and State of Kansas, _______________

________________________________

did then and there unlawfully __________

________________________________

________________________________

in violation of Section ____ of Ordinance No. ________ of the City of Topeka, Kansas.

_______________________
Complainant

*Sworn to positively before me, this ____________________________ day of ____________________, A.D., ________

______________________________
Officer authorized to administer oaths

(*This complaint is not required to be sworn if it is signed by a law enforcement officer, the city attorney, an assistant city attorney, an animal control officer, or a fire department employee with authority to enforce the Uniform Fire Code.)

(Ord. 17666 § 18, 3-27-01. Code 1995 § 50-53.)

    Cross References: City attorney, TMC 2.25.120; police department, TMC 2.25.230; fire department, TMC 2.25.240; animal control officer, TMC 6.10.020.

    State Law References: Similar state statute, K.S.A. 12-4202.

2.110.170 Complaint – How used – Issuance of warrant – Refusal to issue – Effect.

A copy of the complaint shall be served, together with a notice to appear or a warrant, by a law enforcement officer, the city attorney, an assistant city attorney, an animal control officer, or a fire department employee with authority to enforce the Uniform Fire Code, upon the accused person, and forthwith, the complaint shall be filed with the municipal court, except that a complaint may be filed initially with the municipal court, and if so filed, a copy of the complaint shall forthwith be delivered to the city attorney. The city attorney shall cause a notice to appear to be issued, unless he or she has good reason to believe that the accused person will not appear in response to a notice to appear, in which case the city attorney may request that a warrant be issued. Such warrant will be issued if the complaint is positively sworn to and the municipal judge has probable cause to believe that (a) there has been the commission of a violation of a municipal ordinance, (b) the accused person committed such violation and (c) the accused person will not appear in response to a notice to appear.

If a city attorney fails either to cause a notice to appear or to request a warrant to be issued, on a complaint initially filed with the municipal court, the municipal judge may, upon affidavits filed with him or her alleging the violation of an ordinance, order the city attorney to institute proceedings against any person. Any such municipal judge shall be disqualified from sitting in any case wherein such order was entered and is further prohibited from communicating about such case with the municipal judge pro tem appointed by the municipal judge to preside therein. (Ord. 17666 § 19, 3-27-01. Code 1995 § 50-54.)

    Cross References: City attorney, TMC 2.25.120; police department, TMC 2.25.230; fire department, TMC 2.25.240; animal control officer, TMC 6.10.020.

    State Law References: Similar state statute, K.S.A. 12-4203.

2.110.180 Notice to appear – Contents – Form.

A notice to appear shall describe the offense charged, shall summon the accused person to appear, shall contain a space in which the accused person may agree, in writing, to appear at a time not less than five days after such notice to appear is given, unless the accused person shall demand an earlier hearing. A notice to appear may be signed by a municipal judge, the clerk of the municipal court, the city attorney, an assistant city attorney, a law enforcement officer of the city, an animal control officer, or a fire department employee with authority to enforce the Uniform Fire Code.

A notice to appear shall be deemed sufficient if in substantially the form of the notice to appear set out in K.S.A. 12-4205 and amendments thereto, or if in substantially the following form:

IN THE MUNICIPAL COURT
OF TOPEKA, KANSAS

The City of Topeka, Kansas
vs.
________________________________,
(Accused person)
________________________________,
(Address)

NOTICE TO APPEAR

The City of Topeka, Kansas, To The Above Named Accused Person.

You are hereby summoned to appear before the Municipal Court of Topeka, Kansas, on the ________ day of ________, ________, at ___________ o’clock, ________.m., to answer a complaint charging you with

_________________________________

_________________________________

________________________________.

If you fail to appear a warrant will be issued for your arrest.

Dated __________________, ________.

_________________________________

/s/____________________
Signature of Official

/s/____________________
Title of Official

I agree to appear in said Court at said time and place.

_________________________________

/s/_________________________
Signature of Accused Person

RETURN

The undersigned hereby certifies that on the _____________ day of ___________, ________, the notice to appear was served, mailed or delivered.

/s/________________________
Signature and Title of Official

(Ord. 17666 § 20, 3-27-01. Code 1995 § 50-55.)

    Cross References: City attorney, TMC 2.25.120; police department, TMC 2.25.230; fire department, TMC 2.25.240; animal control officer, TMC 6.10.020.

    State Law References: Similar state statute, K.S.A. 12-4204.

2.110.190 Complaint and notice to appear in municipal court.

In all cases a complaint and notice to appear in municipal court may be made in the form of a complaint and notice to appear which shall be deemed sufficient if it contains the information required by subsection (b) of K.S.A. 8-2106, and amendments thereto. (Ord. 17666 § 21, 3-27-01. Code 1995 § 50-56.)

    State Law References: Similar state statute K.S.A. 12-4205a.

2.110.200 Notice to appear – When used.

A notice to appear shall be used in all cases involving the violation of a municipal ordinance, except when a warrant is issued. (Ord. 17666 § 22, 3-27-01. Code 1995 § 50-57.)

    State Law References: Similar state statute, K.S.A. 12-4206.

2.110.210 Notice to appear – Service – Return.

The notice to appear shall be served upon the accused person by delivering a copy to him or her personally, or by leaving it at the dwelling house of the accused person or usual place of abode with some person of suitable age and discretion then residing therein, or by mailing it to the last known address of said person. A notice to appear may be served by any law enforcement officer, the municipal judge, the clerk of the municipal court, the city attorney, an assistant city attorney, an animal control officer, parking control officer as specifically authorized by TMC 10.60.350, property maintenance inspector as specifically authorized by TMC 10.60.120 or a fire department employee with authority to enforce the Uniform Fire Code, and, if mailed, shall be mailed by a law enforcement officer, the municipal judge, the clerk of the municipal court, the city attorney, any animal control officer, parking control officer as specifically authorized by TMC 10.60.350, property maintenance inspector as specifically authorized by TMC 10.60.120 or a fire department employee with authority to enforce the Uniform Fire Code. Upon service by mail, the person serving the notice to appear shall execute a verification to be filed with a copy of the notice to appear. Said verification shall be deemed sufficient if in substantially the following form:

The undersigned hereby certifies that on the ________________ day of ________, ________, a copy of notice to appear was mailed to ________ _________ at ________, ________________________,

_________________________________

_________________________________

/s/_______________________________
Signature of Person Serving
Notice to Appear

(Ord. 18209 § 3, 4-6-04; Ord. 17929 § 3, 12-17-02; Ord. 17666 § 23, 3-27-01. Code 1995 § 50-58.)

    Cross References: City attorney, TMC 2.25.120; police department, TMC 2.25.230; fire department, TMC 2.25.240; animal control officer, TMC 6.10.020.

    State Law References: Similar state statute K.S.A. 12-4207.

2.110.220 Warrant – Contents – Form.

A warrant shall contain the name of the accused person, or if unknown, any name or description by which the accused person may be identified with reasonable certainty, shall describe the nature of the violation of an ordinance of the city, shall command that the accused person be arrested, shall be signed by the judge of the municipal court, and shall state the amount of the appearance bond to be required. A warrant shall be deemed sufficient if substantially in the following form:

IN THE MUNICIPAL COURT
OF TOPEKA, KANSAS

The City of Topeka, Kansas
vs.
________________________________,
Accused Person
________________________________,
(Address)

WARRANT

The City of Topeka, Kansas to the Chief of Police of Topeka, Kansas, or any duly authorized law enforcement officer of the state of Kansas:

Whereas, a sworn complaint in writing has been made to me and it appearing that there is probable cause to believe that on or about the ________ day of ________, ________ within the corporate limits of the above City, the above-named accused person did unlawfully: _______________

_________________________________

_________________________________

In violation of Section ________ of Ordinance No. ________ of said City:

Therefore you are commanded to forthwith arrest the above-named accused person and bring said accused person before this Court to be dealt with according to law.

Given under my hand this ________ day of ________, ________.

/s/____________________
Municipal Judge
Topeka, Kansas

The amount of the appearance bond is hereby set to be $________ for the appearance of the accused person before the Municipal Court of Topeka, Kansas, on the ________________ day of ________, ________, at ________________ o’clock ________.m.

/s/____________________
Municipal Judge

RETURN

I hereby certify that I have executed the within warrant by arresting the named accused person (and taking a bond in the sum of $________ as security for appearance before the Municipal Court of Topeka, Kansas.)

This is to certify that I have made a diligent search for the within-named accused person but have been unable to find same.

City: _____________________________

Date: ____________________________

/s/____________________
Signature

_____________________
Title

(Ord. 17666 § 24, 3-27-01. Code 1995 § 50-59.)

    Cross References: Police department, TMC 2.25.230.

    State Law References: Similar state statute, K.S.A. 12-4208.

2.110.230 Warrants – When issued – Limitations.

A warrant may be issued:

(a) When an accused person fails to appear as required in a notice to appear after its service.

(b) In all other cases where a complaint has been filed and the municipal judge determines that a warrant should be issued. No warrant shall issue unless the complaint giving rise to its issuance is supported by oath or affirmation. No warrant shall issue for an ordinance traffic infraction or an ordinance cigarette or tobacco infraction unless the person charged has received service of a notice to appear and has failed to appear for the infraction. (Ord. 17666 § 25, 3-27-01. Code 1995 § 50-60.)

    State Law References: Similar state statute, K.S.A. 12-4209.

2.110.240 Warrants – Service.

A warrant may be directed to any law enforcement officer within the state and may be executed any place within the state, by the arrest of the accused person. The officer need not have the warrant in his or her possession at the time of the arrest, but upon request, the officer shall show the warrant to the accused person as soon as possible. If the officer does not have the warrant in his or her possession at the time of the arrest, the officer shall then inform the accused person of the offense charged, of the fact that a warrant has been issued, and the amount of the bond required. (Ord. 17666 § 26, 3-27-01. Code 1995 § 50-61.)

    Cross References: Police department, TMC 2.25.230.

    State Law References: Similar state statute, K.S.A. 12-4210.

2.110.250 Detention – Service of complaint and summons.

A law enforcement officer may detain a person when:

(a) He or she has a warrant commanding that such person be arrested; or

(b) He or she has reason to believe that a warrant for the person’s arrest has been issued by any municipal court; or

(c) He or she has probable cause to believe that the person is committing or has committed a violation of an ordinance, and the law enforcement officer has probable cause to believe that such person will not be apprehended or evidence of the violation of the ordinance will be irretrievably lost unless such person is immediately detained, or such person may cause injury to himself, herself or others or damage to property unless immediately detained; or

(d) Any violation of an ordinance has been or is being committed by such person in his or her view.

A law enforcement officer having detained a person pursuant to the preceding subsections, except subsection (a) or (b) of this section, may release the person or may prepare and serve upon such person a complaint and notice to appear, as provided by TMC 2.110.180 or 2.110.190, and amendments thereto, and shall then release such accused person from such detention, except in such instances where the law enforcement officer has power and authority to arrest such accused person as hereinafter set forth. (Ord. 17666 § 27, 3-27-01. Code 1995 § 50-62.)

    Cross References: Police department, TMC 2.25.230.

    State Law References: Similar state statute K.S.A. 12-4211.

2.110.260 Arrest by law enforcement officer – When authorized.

(a) Except as provided in subsection (b) of this section, a law enforcement officer may arrest a person under any of the following circumstances:

(1) The officer has a warrant commanding that the person be arrested.

(2) A warrant for the person’s arrest has been issued by a municipal court in this state.

(3) The officer has probable cause to believe that the person is committing or has committed a violation of an ordinance and that the person has intentionally inflicted bodily harm to another person.

(4) The law enforcement officer detained the person pursuant to TMC 2.110.250(c) or (d) and amendments thereto and:

(i) The person refuses to give a written promise to appear in court when served with a notice to appear;

(ii) The person is unable to provide identification of self by presenting a valid driver’s license or other identification giving equivalent information to the law enforcement officer;

(iii) The person is not a resident of the state of Kansas; or

(iv) The law enforcement officer has probable cause to believe that the person may cause injury to self or others or may damage property unless immediately arrested.

(b) A law enforcement officer may not arrest a person who is charged only with committing an ordinance traffic infraction or an ordinance cigarette or tobacco infraction unless the person charged has received service of a notice to appear and has failed to appear for the infraction. (Ord. 17666 § 28, 3-27-01. Code 1995 § 50-63.)

    Cross References: Police department, TMC 2.25.230.

    State Law References: Similar state statute, K.S.A. 12-4212.

2.110.270 Persons under arrest – Procedures – Right to post bond – Release on personal recognizance.

Any person arrested by a law enforcement officer shall be taken immediately by the law enforcement officer to the police station of the city or the office in the city designated by the municipal judge. At that time, the person shall have the right to post bond for the person’s appearance, in accordance with TMC 2.110.290 and 2.110.300, and amendments thereto. However, if the law enforcement officer has probable cause to believe that such person may cause injury to himself or herself or others, or damage to property, and there is no responsible person or institution to which the person might be released, the person shall remain in the protective custody of the law enforcement officer, in a city or county jail for a period not to exceed six hours, at which time such person shall be given an opportunity to post bond for the person’s appearance. While so held in protective custody, the person shall be permitted to consult with counsel or other persons on the person’s behalf. Any person who does not make bond for the person’s appearance shall be placed in the city or county jail, to remain there until the person makes bond for the person’s appearance, or appears before the municipal court at the earliest practical time, except that the person shall be released on the person’s personal recognizance to appear at a later date if the person has not made bond, has not appeared before the municipal court within 48 hours after arrest and if no warrant has been issued for the person’s arrest. (Ord. 19208 § 1, 1-13-09. Code 1995 § 50-64.)

    Cross References: Police department, TMC 2.25.230.

    State Law References: Similar state statute, K.S.A. 12-4213.

2.110.280 Notice – Explanation of rights.

(a) When a person is charged with an ordinance traffic infraction or an ordinance cigarette or tobacco infraction, the notice to appear shall provide a place where the person may make a written entry of appearance, waive the right to a trial and plead guilty or no contest. The notice to appear shall provide a space in which the law enforcement officer, except as provided in subsection (b) of this section, shall enter the appropriate fine specified in the fine schedule established by the municipal judge in accordance with TMC 2.110.330 and amendments thereto, in the case of a traffic infraction, or a fine of $25.00, in the case of an ordinance cigarette or tobacco infraction. Either the notice to appear or a separate form provided to the person by the law enforcement officer shall provide an explanation: (1) of the person’s right to appear and right to trial and the person’s right to pay the appropriate fine prior to the appearance date; (2) that failure to either pay such fine or appear at the specified time may result in issuance of a warrant for the person’s arrest; and (3) in the case of a traffic infraction, that failure to either pay such fine or appear at the specified time may result in the suspension of the person’s driver’s license. The law enforcement officer shall provide the person with the telephone number and address of the municipal court to which the written entry of appearance, waiver of trial, plea of guilty or no contest and payment of fine shall be mailed.

(b) In lieu of the law enforcement officer entering the appropriate fine for an ordinance traffic infraction, the officer may direct the person charged with an ordinance traffic infraction to contact the clerk of the municipal court to determine the applicable fine or provide the person with a copy of the fine schedule established by the municipal judge in accordance with K.S.A. 12-4305 and amendments thereto.

(c) When a person is charged with an ordinance cigarette or tobacco infraction, the judge may require the juvenile to appear in court with a parent or legal guardian. (Ord. 17666 § 30, 3-27-01. Code 1995 § 50-65.)

    Cross References: Police department, TMC 2.25.230.

    State Law References: Similar state statute, K.S.A. 12-4214.

2.110.290 Appearance bonds – Methods of securing.

A person having the right to post bond for appearance shall, in order to do so, execute in writing a promise to appear at the municipal court at a stated time and place. Such appearance bond shall be in an amount as determined by the municipal judge, and may be secured by any one of the following methods, and when so secured, such person shall be released from custody.

The methods of securing the appearance of an accused person are as follows:

(a) Payment of cash, except that the municipal judge may permit negotiable securities or a personal check in lieu of cash.

(b) The execution of an appearance bond by a responsible individual residing within the state of Kansas, as surety with the approval of the municipal judge.

(c) A guaranteed arrest bond certificate issued by either a surety company authorized to transact such business within the state of Kansas, or an automobile club authorized to transact business in this state by the commissioner of insurance, except that such “guaranteed arrest bond certificate” must be signed by the person to whom it is issued and must contain a printed statement that the surety guarantees the appearance of such person and, in the event of failure of such person to appear in court at the time of trial, will pay any fine or forfeiture imposed upon such person not to exceed an amount to be stated on such certificate.

(d) In lieu of giving security in the manner provided by subsections (a), (b) and (c) of this section, if the arrest is for the violation of a city ordinance relating to the operation of a motor vehicle the accused person may deposit with the arresting law enforcement officer or the clerk of the municipal court a valid Kansas driver’s license in exchange for a receipt therefor issued by the law enforcement officer or the clerk of the municipal court, the form of which shall be approved by the division of vehicles of the state Department of Revenue. Such receipt shall be recognized as a valid temporary Kansas driver’s license authorizing the operation of a motor vehicle by the accused person to the date of the hearing stated on the receipt. Such driver’s license and written copy of the notice to appear shall be delivered by the law enforcement officer to the municipal court as soon as reasonably possible. If the hearing on any such charge is continued for any reason, the municipal judge may note on the receipt the date to which such hearing has been continued, and such receipt shall be recognized as a valid temporary Kansas driver’s license until such date, but in no event shall such receipt be recognized as a valid Kansas driver’s license for a period longer than 30 days from the date for the original hearing. Any person who deposited a driver’s license to secure such person’s appearance, in lieu of giving a bond as provided in subsections (a), (b) and (c) of this section, shall have such driver’s license returned upon the giving of the required bond pursuant to subsections (a), (b) and (c) of this section or upon final determination of the charge.

In the event the accused person deposits a valid Kansas driver’s license with the municipal court and fails to appear in court on the date set for appearance, or any continuance thereof, and in any event within 30 days from the date set for the original hearing, the municipal judge shall forward the driver’s license of such person to the division of vehicles with an appropriate explanation attached thereto. Upon receipt of the driver’s license of such person the division of vehicles shall suspend such person’s privilege to operate a motor vehicle in this state until such person appears before the municipal court, or the municipal court makes a final disposition thereof, and notice of such disposition is given by the municipal court to the division, or for a period not exceeding six months from the date such person’s driver’s license is received by the division, whichever is earlier.

Any person who applies for a replacement or new driver’s license prior to the return of such person’s original license, when such license has been deposited in lieu of the giving of a bond as provided in this section, shall be guilty of a misdemeanor punishable as set forth in K.S.A. 8-2116, and amendments thereto. (Ord. 17666 § 31, 3-27-01. Code 1995 § 50-66.)

    Cross References: Police department, TMC 2.25.230.

    State Law References: Similar state statute, K.S.A. 12-4301.

2.110.300 Personal recognizance.

Notwithstanding the provisions of TMC 2.110.290, and amendments thereto, a law enforcement officer may release an accused person from custody without requiring security for his or her appearance, and shall release such accused person without requiring security for the appearance, pursuant to any rule or order of the municipal judge. (Ord. 17666 § 32, 3-27-01. Code 1995 § 50-67.)

    Cross References: Police department, TMC 2.25.230.

    State Law References: Similar state statute, K.S.A. 12-4302.

2.110.310 Failure to appear.

In the event the accused person fails to appear at the time designated in the appearance bond, or at any subsequent time to which the appearance has been continued, the municipal judge shall declare the bond forfeited, except that, if it appears to the court that justice does not require the enforcement of the forfeiture, the court may set the same aside upon such conditions as the court may impose. Where the forfeiture of a bond has become final, the court shall direct the application of the funds or that suitable action be instituted for the collection from the sureties thereon or from the accused person. (Ord. 17666 § 33, 3-27-01. Code 1995 § 50-68.)

    State Law References: Similar state statute, K.S.A. 12-4303.

2.110.320 Appearance bond – Posting – Form.

An appearance bond shall be deemed sufficient if it states substantially as follows:

Appearance Bond.

In the Municipal Court of Topeka, Kansas. The City of Topeka, Kansas vs. ________, the accused person, as principal, and ________, as surety, (where surety is used) acknowledge ourselves to be indebted to the City of Topeka, Kansas in the sum of ________ Dollars, secured as required by law, upon these conditions:

That said accused person shall personally appear before the Municipal Court of Topeka, Kansas, on the ________ day of _________, ________, at ____________ o’clock a.m. and, if an appeal is taken, shall appear in the District Court of Shawnee County, and from time to time as required by the court to answer to the complaint, according to his or her promise to do so, which the accused person hereby makes then this bond shall be void; otherwise it shall remain in force.

Dated this ___________ day of ________, ________.

_______________________
(Accused Person)

_________________________________
(Address)

_________________________________
(Surety) (Where Applicable)

_________________________________
(Address)

Receipt for cash surety

Received from ________, accused person, ________ Dollars cash security on above bond this _____________ day of ________, ________.

________________________________
(Clerk of Municipal Court or Law Enforcement Officer)

OR

Receipt for guaranteed arrest bond certificate security

Received from ________ a guaranteed certificate issued by ________, as security on above bond this ____________ day of ________, ________.

_________________________________
(Clerk of Municipal Court or Law Enforcement Officer)

OR

Receipt for operator’s license security

Received from ________, accused person, operator’s license issued by the state of ________, bearing number ________, issued to said accused person, as security on above bond this ________ day of ________, ________.

_________________________________
(Clerk of Municipal Court or Law Enforcement Officer)

OR

Approval of surety

Surety approved this ________ day of ________, ________.

/s/________________________
(Municipal Judge)

OR

Bond without surety

This bond approved without surety.

/s/________________________
(Municipal Judge or
Law Enforcement Officer)

(Ord. 17666 § 34, 3-27-01. Code 1995 § 50-69.)

    Cross References: Police department, TMC 2.25.230.

    State Law References: Similar state statute, K.S.A. 12-4304.

2.110.330 Schedule of fines for municipal ordinance traffic infractions and certain other ordinances – Violations excluded from schedule – Fines upon plea of guilty or no contest – Procedure.

(a) The municipal judge shall establish a schedule of fines which shall be imposed for municipal ordinance violations that are classified as ordinance traffic infractions. Also, the municipal judge may establish a schedule of fines which shall be imposed for the violation of certain other ordinances. Any fine so established shall be within the minimum and maximum allowable fines established by ordinance for such offenses by the governing body. The following traffic violations are specifically excluded from any schedule of fines:

(1) Reckless driving;

(2) Driving while under the influence of alcohol or drugs, or both, or driving with a blood or breath alcohol concentration of 0.08 or more;

(3) Driving without a valid license issued or on a canceled, suspended or revoked license;

(4) Fleeing or attempting to elude a police officer; or

(5) Offense comparable to those prescribed by K.S.A. 8-1602, 8-1603 and 8-1604 and amendments thereto.

(b) A person charged with the violation of an ordinance contained in a schedule of fines established under subsection (a) of this section shall, except as provided in subsection (c) of this section, appear at the place and time specified in the notice to appear. If the person enters an appearance, waives right to trial, or pleads guilty or no contest, the fine shall be no greater than that specified in the schedule.

(c) Prior to the time specified in the notice to appear, a person charged with an ordinance cigarette or tobacco infraction or a violation of an ordinance contained in a schedule of fines established under subsection (a) of this section may enter an appearance, waive right to trial, plead guilty or no contest and pay the fine for the violation as specified in the schedule or in TMC 2.110.280(a) and amendments thereto. At the election of the person charged, such appearance, waiver, plea and payment may be made by mail or in person and payment may be by personal check. The complaint shall not have been complied with if a check is not honored for any reason, or the fine is not paid in full prior to the time specified in the notice to appear. When a person charged with an ordinance cigarette or tobacco infraction or an ordinance traffic infraction or other ordinance violation on a schedule of fines makes payment without executing a written waiver of right to trial and plea of guilty or no contest, the payment shall be deemed such an appearance, waiver of right to trial and plea of no contest.

The municipal judge may authorize the clerk of the municipal court or some other person to accept by mail or in person such voluntary appearance, plea of guilty or no contest and payment of the fine imposed by the schedule or by TMC 2.110.280(a) and amendments thereto.

The schedule of fines and persons authorized to accept such pleas shall be conspicuously displayed in the office where such voluntary appearance, plea of guilty and payment of fine occurs, upon request. (Ord. 17666 § 35, 3-27-01. Code 1995 § 50-70.)

    Cross References: City council – mayor, Chapter 2.15 TMC.

    State Law References: Similar state statute, K.S.A. 12-4305.

2.110.340 Traffic violations – Failure to appear, service of warrant and collection of bond.

(a) If a person who is a resident of this state is charged with a violation of a traffic ordinance of the city, and such person fails to appear after service of notice to appear, any law enforcement officer of any county or city of the state may serve the bench warrant issued for the person and may collect from the person a cash appearance bond in the amount stated in the warrant upon request of the law enforcement agency of the city in which the warrant was issued. In the event the violator waives actual in-hand service of the bench warrant and the officer has verified by telecommunication that the bench warrant is in the actual possession of the law enforcement authorities of the jurisdiction issuing the same, the officer making the arrest may collect the appearance bond without actual in-hand service of the bench warrant.

(b) Any appearance bond collected pursuant to this section shall be forwarded forthwith to the clerk of the Topeka municipal court.

(c) As used in this section:

(1) “Highway,” “street,” “traffic” and “vehicle” have the meanings provided by Article 14 of Chapter 8 K.S.A., and amendments thereto.

(2) “Traffic ordinance” means any ordinance relating to the regulation of traffic on streets and highways or the operation of vehicles. (Ord. 17666 § 36, 3-27-01. Code 1995 § 50-71.)

    Cross References: Police department, TMC 2.25.230.

    State Law References: Similar state statute, K.S.A. 12-4306.

2.110.350 Matters before trial.

Every person charged with violation of an ordinance shall receive a copy of the complaint, and shall not be required to plead until he or she shall have had a reasonable time to examine the same, to obtain counsel and to determine his or her plea. (Ord. 17666 § 37, 3-27-01. Code 1995 § 50-72.)

    State Law References: Similar state statute, K.S.A. 12-4401.

2.110.360 Appearance of accused person – Action by counsel or by mail.

Subject to the provisions of TMC 2.110.230 and amendments thereto, the municipal judge may compel the appearance of an accused person. In addition to the procedures provided in TMC 2.110.280 and amendments thereto, the municipal judge, upon request, may permit appearance, pleas and satisfaction of the judgment and sentence of the court by counsel or by mail. (Ord. 17666 § 38, 3-27-01. Code 1995 § 50-73.)

    State Law References: Similar state statute, K.S.A. 12-4402.

2.110.370 Time of arraignment.

Accused persons shall be arraigned:

(a) At the time specified in the notice to appear, or in the appearance bond; or

(b) If no date be specified, then on the earliest date when the court convenes. (Ord. 17666 § 39, 3-27-01. Code 1995 § 50-74.)

    State Law References: Similar state statute, K.S.A. 12-4403.

2.110.380 Arraignment.

Arraignment shall be conducted in open court by stating to the accused person the substance of the charge and calling upon the accused to plead thereto. Arraignment for purposes of accepting a plea of guilty or not guilty may be accomplished by telephone, mail or appearance by counsel in person or by telephone. (Ord. 17666 § 40, 3-27-01. Code 1995 § 50-75.)

    State Law References: Similar state statute, K.S.A. 12-4404.

2.110.390 Appointment of counsel, when.

If the municipal judge has reason to believe that, if found guilty, the accused person might be deprived of his or her liberty and is not financially able to employ counsel, the judge shall appoint an attorney to represent the accused person.

Financial inability to employ counsel shall be determined by the methods provided in K.S.A. 22-4504, and amendments thereto. (Ord. 17666 § 41, 3-27-01. Code 1995 § 50-76.)

    State Law References: Similar state statute, K.S.A. 12-4405.

2.110.400 Pleas – Failure to appear.

(a) A plea of guilty is an admission of the charge and every material fact alleged therein.

(b) A plea of no contest is a formal declaration that the accused person does not contest the charge. When such a plea is entered, a finding of guilty may be adjudged thereon. The plea cannot be used against the accused person as an admission in any other action based on the same act.

(c) A plea of not guilty denies and puts into issue every material fact alleged in the charge.

(d) If the accused person refuses to plead, the court shall enter a plea of not guilty.

(e) If the accused person fails to appear, the court shall declare the appearance bond to be forfeited and may issue a warrant for the arrest of the accused person. (Ord. 17666 § 42, 3-27-01. Code 1995 § 50-77.)

    State Law References: Similar state statute, K.S.A. 12-4406.

2.110.410 Procedure upon plea of guilty.

If the accused person pleads guilty, the municipal judge may hear evidence touching on the nature of the case, or otherwise ascertain the facts thereof, and after such hearing, may refuse to accept the plea or may accept the plea, assess the punishment and enter the proper judgment. (Ord. 17666 § 43, 3-27-01. Code 1995 § 50-78.)

    State Law References: Similar state statute, K.S.A. 12-4407.

2.110.420 Motions.

The Kansas Code of Criminal Procedure shall govern, insofar as applicable, the filing and disposition of motions, except as modified by this code of procedure. Motions may be oral or written. The city attorney shall be granted not less than 14 days to respond to any motion determinative of the merits of the case or which may lead to the suppression of evidence. (Ord. 18397 § 1, 2-22-05; Ord. 17666 § 44, 3-27-01. Code 1995 § 50-79.)

    Cross References: City attorney, TMC 2.25.120.

    State Law References: Similar state statute, K.S.A. 12-4408.

2.110.430 Continuances.

The municipal judge may grant a continuance of the trial or any hearing upon a showing of good cause. (Ord. 18397 § 2, 2-22-05; Ord. 17666 § 45, 3-27-01. Code 1995 § 50-80.)

    State Law References: Similar state statute, K.S.A. 12-4409.

2.110.440 Discovery.

The Kansas Code of Criminal Procedure shall govern, insofar as applicable, discovery in the Topeka municipal court. (Ord. 17666 § 46, 3-27-01. Code 1995 § 50-81.)

    State Law References: Similar state statute, K.S.A. 12-4410.

2.110.450 Subpoenas – Witnesses’ expenses – Abuse of subpoenas, costs.

All parties shall be entitled to the use of subpoenas to compel attendance of witnesses within the state. The municipal judge or clerk shall issue a subpoena which may be served by any law enforcement officer, the city attorney or an assistant city attorney, the municipal judge, or the clerk of the municipal court upon the named person. Disobedience may constitute contempt.

Fees and mileage of witnesses shall be $10.00 per day or any part thereof for an appearance and reimbursement per mile actually driven over 10 miles. Said mileage reimbursement rate shall be consistent with the then-current Internal Revenue Service allowed rate. The fees and mileage for the attendance of witnesses shall be borne by the party calling the witness, excluding city police officers who are exempt from receiving witness fees pursuant to this provision, except that if an accused person is found not guilty, the city shall pay all such expenses; provided, the municipal judge may direct that fees and mileage of witnesses subpoenaed by the accused person be charged against such person, if the judge finds that there has been an abuse of the use of subpoenas by the accused person. (Ord. 19175 § 2, 10-21-08. Code 1995 § 50-82.)

    Cross References: City attorney, TMC 2.25.120; police department, TMC 2.25.230.

    State Law References: Similar state statute, K.S.A. 12-4411.

2.110.460 Municipal diversion agreements – Contents – Copy to Kansas Bureau of Investigation, when – Availability to prosecuting attorney.

(a) Any diversion agreement entered into in lieu of further criminal proceedings on a complaint alleging a violation of a city ordinance shall include: (1) the defendant’s full name; (2) the defendant’s full name at the time the complaint was filed, if different from the defendant’s current name; (3) the defendant’s sex, race and date of birth; (4) the crime with which the defendant is charged; (5) the date the complaint was filed; and (6) the municipal court with which the agreement is filed.

(b) The city attorney shall forward to the Kansas Bureau of Investigation a copy of a diversion agreement entered into by the city attorney only when required by rules and regulations adopted by the director of the bureau pursuant to K.S.A. 22-4704 and amendments thereto. The copy of the agreement shall be made available upon request to any county, district or city attorney who subsequently considers diversion of the person.

(c) As used in this section, “complaint” includes a citation or notice to appear. (Ord. 17666 § 48, 3-27-01. Code 1995 § 50-83.)

    Cross References: City attorney, TMC 2.25.120.

    State Law References: Similar state statute, K.S.A. 12-4412.

2.110.470 Municipal court diversion – Definitions.

As used in K.S.A. 8-1009, 12-4413 to 12-4418, inclusive:

(a) “City attorney” means a city attorney of a city of this state.

(b) “Complaint” means complaint, citation or notice to appear in a municipal court.

(c) “Diversion” means referral of a defendant in a criminal case charging an alcohol-related offense to a supervised performance program prior to adjudication.

(d) “Diversion agreement” means the specification of formal terms and conditions which a defendant must fulfill in order to have the charges against such person dismissed.

(e) “Alcohol-related offense” means violation of an ordinance of a city of this state that prohibits the acts prohibited by K.S.A. 8-1567, and amendments thereto, or violation of such statute. (Ord. 17666 § 49, 3-27-01. Code 1995 § 50-84.)

    State Law References: Similar state statute, K.S.A. 12-4413.

2.110.480 Municipal court diversion – When agreements to be offered – Written policies – Information to be furnished – Right to counsel.

(a) After a complaint has been filed charging a defendant with violation of an alcohol or drug related offense and prior to conviction thereof, and after the city attorney has considered the factors listed in TMC 2.110.490, if it appears to the city attorney that diversion of the defendant would be in the interests of justice and of benefit to the defendant and the community, the city attorney may propose a diversion agreement to the defendant. The terms of each diversion agreement shall be established by the city attorney in accordance with TMC 2.110.500.

(b) Each city attorney shall adopt written policies and guidelines for the implementation of a diversion program in accordance with K.S.A. 8-1009, and 12-4412 to 12-4417. Such policies and guidelines shall provide for a diversion conference and other procedures in those cases where the city attorney elects to offer diversion in lieu of further criminal proceedings on the complaint.

(c) Each defendant shall be informed of the diversion program and the policies and guidelines adopted by the city attorney. The city attorney may require any defendant requesting diversion to provide information regarding prior criminal charges, education, work experience and training, family, residence in the community, medical history, including any psychiatric or psychological treatment or counseling, and other information relating to the diversion program. In all cases, the defendant shall be present and shall have the right to be represented by counsel at the diversion conference with the city attorney. (Ord. 17666 § 50, 3-27-01. Code 1995 § 50-85.)

    Cross References: City attorney, TMC 2.25.120.

    State Law References: Similar state statute, K.S.A. 12-4414.

2.110.490 Municipal court diversion – Factors to consider – When prohibited.

(a) In determining whether diversion of a defendant is in the interests of justice and of benefit to the defendant and the community, the city attorney shall consider at least the following factors among all factors considered:

(1) The nature of the crime charged and the circumstances surrounding it;

(2) Any special characteristics or circumstances of the defendant;

(3) Whether the defendant is a first-time offender of an alcohol-related offense and if the defendant has previously participated in diversion, according to the certification of the division of vehicles of the state Department of Revenue;

(4) Whether there is a probability that the defendant will cooperate with and benefit from diversion;

(5) Whether the available diversion program is appropriate to the needs of the defendant;

(6) The impact of the diversion of the defendant upon the community;

(7) Recommendations, if any, of the involved law enforcement agency;

(8) Recommendations, if any, of the victim;

(9) Provisions for restitution; and

(10) Any mitigating circumstances.

(b) A city attorney shall not enter into a diversion agreement in lieu of further criminal proceedings on a complaint alleging an alcohol-related offense if the defendant:

(1) Has previously participated in diversion of an alcohol-related offense;

(2) Has previously been convicted of or pleaded nolo contendere to an alcohol-related offense in this state or has previously been convicted of or pleaded nolo contendere to a violation of K.S.A. 8-1567 and amendments thereto or of a law of another state, or of a political subdivision thereof, which prohibits the acts prohibited by that statute; or

(3) During the time of the alleged alcohol- related offense was involved in a motor vehicle accident or collision resulting in personal injury or death. (Ord. 17666 § 51, 3-27-01. Code 1995 § 50-86.)

    Cross References: City attorney, TMC 2.25.120; police department, TMC 2.25.230.

    State Law References: Similar state statute, K.S.A. 12-4415.

2.110.500 Municipal court diversion – Provisions of diversion agreement – Waiver of certain rights – Effect of failure to fulfill or accept agreement – Duties of city attorney and division of vehicles.

(a) A diversion agreement shall provide that if the defendant fulfills the obligations of the program described therein, as determined by the city attorney, the city attorney shall act to have the criminal charges against the defendant dismissed with prejudice. The diversion agreement shall include specifically the waiver of all rights under the law or the Constitution of Kansas or of the United States to counsel, a speedy arraignment, a speedy trial, and the right to trial by jury. The diversion agreement may include, but is not limited to, provisions concerning payment of restitution, including court costs and diversion costs, residence in a specified facility, maintenance of gainful employment, and participation in programs offering medical, educational, vocational, social and psychological services, corrective and preventive guidance and other rehabilitative services. The diversion agreement shall state:

(1) The defendant’s full name;

(2) The defendant’s full name at the time the complaint was filed, if different from the defendant’s current name;

(3) The defendant’s sex, race and date of birth;

(4) The crime with which the defendant is charged;

(5) The date the complaint was filed; and

(6) The municipal court with which the agreement is filed.

(b) If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging an alcohol-related offense, the diversion agreement shall include a stipulation, agreed to by the defendant and the city attorney, of the facts upon which the charge is based and a provision that if the defendant fails to fulfill the terms of the specific diversion agreement and the criminal proceedings on the complaint are resumed, the proceedings, including any proceedings on appeal, shall be conducted on the record of the stipulation of facts relating to the complaint. In addition, the agreement shall include a requirement that the defendant:

(1) Pay a fine specified by the agreement in an amount equal to an amount authorized by K.S.A. 8-1567, and amendments thereto, for a first offense or, in lieu of payment of the fine, perform community service specified by the agreement, consonant with K.S.A. 8-1567, and amendments thereto; and

(2) Enroll in and successfully complete an alcohol and drug safety action program or a treatment program, or both, as provided in K.S.A. 8-1008, and amendments thereto, and specified by the agreement, and pay the assessment required by K.S.A. 8-1008, and amendments thereto.

(c) If the person entering into a diversion agreement is a nonresident, the city attorney shall transmit a copy of the diversion agreement to the division. The division shall forward a copy of the diversion agreement to the motor vehicle administrator of the person’s state of residence.

(d) If the city attorney elects to offer diversion in lieu of further criminal proceedings on the complaint and the defendant agrees to all of the terms of the proposed agreement, the diversion agreement shall be filed with the municipal court and the municipal court shall stay further proceedings on the complaint. If the defendant declines to accept diversion, the municipal court shall resume the criminal proceedings on the complaint.

(e) The city attorney shall forward to the division of vehicles of the state Department of Revenue a copy of the diversion agreement at the time such agreement is filed with the municipal court. The copy of the agreement shall be made available upon request to any county, district or city attorney or court. (Ord. 17666 § 52, 3-27-01. Code 1995 § 50-87.)

    Cross References: City attorney, TMC 2.25.120.

    State Law References: Similar state statute, K.S.A. 12-4416.

2.110.510 Municipal court diversion – Condition diversion on plea prohibited – Nonadmissible evidence.

No defendant shall be required to enter any plea to a criminal charge as a condition for diversion. No statements made by the defendant or counsel in any diversion conference or in any other discussion of a proposed diversion agreement shall be admissible as evidence in criminal proceedings on crimes charged or facts alleged in the complaint. (Ord. 17666 § 53, 3-27-01. Code 1995 § 50-88.)

    State Law References: Similar state statute, K.S.A. 12-4417.

2.110.520 Failure to fulfill diversion agreement – Satisfactory fulfillment – Records.

(a) If the city attorney finds at the termination of the diversion period or any time prior thereto that the defendant has failed to fulfill the terms of the specific diversion agreement, the city attorney shall inform the municipal court of such finding and the municipal court, after finding that the defendant has failed to fulfill the terms of the specific diversion agreement at a hearing thereon, shall resume the criminal proceedings on the complaint.

(b) If the defendant has fulfilled the terms of the diversion agreement, the municipal court shall dismiss with prejudice the criminal charges filed against the defendant.

(c) The city attorney shall forward to the division of vehicles of the state Department of Revenue a record of the fact that a defendant did or did not fulfill the terms of a diversion agreement required to be filed under subsection (d) of K.S.A. 12-4416 and amendments thereto. Such record shall be made available to any county, district or city attorney or court. (Ord. 17666 § 54, 3-27-01. Code 1995 § 50-89.)

    Cross References: City attorney, TMC 2.25.120.

    State Law References: Similar state statute, K.S.A. 12-4418.

2.110.530 Defendants under 21 years – Drug and alcohol evaluations.

(a) Except as provided in subsection (b) of this section, if a diversion agreement between a city attorney and a defendant is entered into in lieu of further criminal proceedings alleging a violation by the defendant, while under 21 years of age, of an ordinance prohibiting an act prohibited by the Uniform Substances Act (K.S.A. 65-4101 et seq. and amendments thereto) or K.S.A. 41-719, 41-727, 41-804, 41-2719, 41-2720, 65-4152, 65-4153, 65-4154 or 65-4155, and amendments thereto, the agreement shall require the defendant to submit to and complete an alcohol and drug evaluation by a community-based alcohol and drug safety action program certified pursuant to K.S.A. 8-1008 and amendments thereto and to pay a fee not to exceed the fee established by that statute for such evaluation. If the city attorney finds that the defendant is indigent, the fee may be waived.

(b) If the defendant is 18 or more years of age but less than 21 years of age and allegedly committed a violation of K.S.A. 41-727, and amendments thereto, involving cereal malt beverage, the provisions of subsection (a) of this section are permissive and not mandatory. (Ord. 17666 § 55, 3-27-01. Code 1995 § 50-90.)

    Cross References: City attorney, TMC 2.25.120.

    State Law References: Similar state statute, K.S.A. 12-4419.

2.110.540 Trial.

All trials in municipal court shall be to the municipal judge or the municipal judge pro tem. (Ord. 17666 § 57, 3-27-01. Code 1995 § 50-92.)

    State Law References: Similar state statute, K.S.A. 12-4502.

2.110.550 Trial – Order of presentation.

The order of trial shall be:

(a) Opening statement of prosecution, unless waived;

(b) Evidence by the prosecution;

(c) Opening statement of accused person, unless waived;

(d) Evidence by the accused person, unless waived;

(e) Rebuttal evidence, unless waived; and

(f) Closing arguments, unless waived. (Ord. 17666 § 58, 3-27-01. Code 1995 § 50-93.)

    State Law References: Similar state statute, K.S.A. 12-4503.

2.110.560 Evidence.

The rules of evidence prescribed in the code of civil procedure shall apply to this code. (Ord. 17666 § 59, 3-27-01. Code 1995 § 50-94.)

    State Law References: Similar state statute, K.S.A. 12-4504.

2.110.570 Amendments to complaint.

Amendments to the complaint may be permitted by the court before trial. Once the trial commences, the court may permit a complaint to be amended before judgment, if no additional or different offense is charged, and if substantial rights of the accused person are not prejudiced. (Ord. 17666 § 60, 3-27-01. Code 1995 § 50-95.)

    State Law References: Similar state statute, K.S.A. 12-4505.

2.110.580 Joinder of two or more accused persons.

Where two or more persons are separately or jointly accused by a complaint of a violation of an ordinance arising out of the same general state of circumstances, such persons may be tried separately or jointly; provided, that where an accused person so requests, he or she shall be tried separately. (Ord. 17666 § 61, 3-27-01. Code 1995 § 50-96.)

    State Law References: Similar state statute, K.S.A. 12-4506.

2.110.590 Judgment.

If the accused person is found not guilty, judgment shall be rendered immediately. If the accused person is found guilty, sentence shall be imposed and judgment rendered without unreasonable delay. (Ord. 17666 § 62, 3-27-01. Code 1995 § 50-97.)

    State Law References: Similar state statute, K.S.A. 12-4507.

2.110.600 Judgment – Docket.

When a judgment is rendered, the municipal judge or clerk of the municipal court shall enter such judgment on the docket; however, the omission of this duty shall not affect the validity of the judgment. (Ord. 17666 § 63, 3-27-01. Code 1995 § 50-98.)

    State Law References: Similar state statute, K.S.A. 12-4508.

2.110.610 Sentence – Possible disposition.

(a) Whenever a person is found guilty of the violation of an ordinance, the municipal judge may:

(1) Release the person without imposition of sentence;

(2) Release the person on probation after the imposition of sentence, without imprisonment or the payment of a fine or a portion thereof, subject to conditions imposed by the court as provided in subsection (e) of this section; or

(3) Impose such sentence of fine or imprisonment, or both, as authorized for the ordinance violation.

(b) In addition to or in lieu of any other sentence authorized by law, whenever a person is found guilty of the violation of an ordinance and there is evidence that the act constituting the violation of the ordinance was substantially related to the possession, use or ingestion of cereal malt beverage or alcoholic liquor by such person, the judge may order such person to attend and satisfactorily complete an alcohol or drug education or training program certified by the chief judge of the judicial district or licensed by the secretary of social and rehabilitation services.

(c) Except as provided in subsection (d) of this section, in addition to or in lieu of any other sentence authorized by law, whenever a person is convicted of having violated, while under 21 years of age, an ordinance prohibiting an act prohibited by the Uniform Controlled Substances Act (K.S.A. 65-4101 et seq. and amendments thereto) or K.S.A. 41-719, 41-727, 65-4152, 65-4153, 65-4154 or 65-4155 or K.S.A. 8-1599 (1998 Supp.), and amendments thereto, the municipal judge shall order such person to submit to and complete an alcohol and drug evaluation by a community-based alcohol and drug safety action program certified pursuant to K.S.A. 8-1008 and amendments thereto and to pay a fee not to exceed the fee established by that statute for such evaluation. If the judge finds that the person is indigent, the fee may be waived.

(d) If the person is 18 or more years of age but less than 21 years of age and is convicted of a violation of K.S.A. 41-727 or TMC 9.15.140, and amendments thereto, involving cereal malt beverage, the provisions of subsection (c) of this section are permissive and not mandatory.

(e) The court may impose any conditions of probation or suspension of sentence that the court deems proper, including, but not limited to, requiring that the defendant:

(1) Avoid such injurious or vicious habits, as directed by the court or the probation officer;

(2) Avoid such persons or places of disreputable or harmful character, as directed by the court or the probation officer;

(3) Report to the probation officer as directed;

(4) Permit the probation officer to visit the defendant at home or elsewhere;

(5) Work faithfully at suitable employment insofar as possible;

(6) Remain within the state unless the court grants permission to leave;

(7) Pay a fine or costs, applicable to the ordinance violation, in one or several sums and in the manner as directed by the court;

(8) Support the defendant’s dependents;

(9) Reside in a residential facility located in the community and participate in educational counseling, work and other correctional or rehabilitative programs;

(10) Perform community or public service work for local governmental agencies, private corporations organized not for profit, or charitable or social service organizations performing services for the community;

(11) Perform services under a system of day fines whereby the defendant is required to satisfy fines, costs or reparation or restitution obligations by performing services for a period of days determined by the court on the basis of ability to pay, standard of living, support obligations and other factors;

(12) Make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime, in an amount and manner determined by the court and to the person specified by the court; or

(13) Reimburse the city, in accordance with any order made under subsection (f) of this section, for all or a part of the reasonable expenditures by the city to provide counsel and other defense services to the defendant.

(f) In addition to or in lieu of any other sentence authorized by law, whenever a person is found guilty of the violation of an ordinance the judge may order such person to reimburse the city for all or a part of the reasonable expenditures by the city to provide counsel and other defense services to the defendant. In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. A defendant who has been required to pay such sum and who is not willfully in default in the payment thereof may at any time petition the court which sentenced the defendant to waive payment of such sum or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant’s immediate family, the court may waive payment of all or part of the amount due or modify the method of payment. (Ord. 17666 § 64, 3-27-01. Code 1995 § 50-99.)

    State Law References: Similar state statute, K.S.A. 12-4509.

2.110.620 Sentence – Imprisonment – Fine.

When a sentence of imprisonment is pronounced, the municipal judge or the clerk of the municipal court shall prepare and deliver to the proper authority a copy of the entry of judgment, duly certified by such judge or clerk, which shall be sufficient authority to such proper authority to execute the sentence and confine the accused person to jail for the time specified, or until further order of the court.

When a fine is levied as punishment, the municipal judge or clerk of the municipal court shall issue a statement setting forth the amount of the fine and the manner of payment. Failure to pay in the manner specified may constitute contempt of court. (Ord. 17666 § 65, 3-27-01. Code 1995 § 50-100.)

    State Law References: Similar state statute, K.S.A. 12-4510.

2.110.630 Parole.

Except as otherwise provided by law, the municipal judge may parole any person confined to jail as a result of a conviction of a violation of a city ordinance. The judge may set such conditions and restrictions as the judge sees fit to impose for a term of parole not exceeding two years and may at any time discharge such person for good cause shown. The term of parole ordered by the court is subject to renewal and extension for additional periods not exceeding an additional two years for any misdemeanor case upon the municipal court’s finding that the defendant has not yet successfully completed the conditions imposed therein within the original term of such parole.

After notice and hearing, the municipal judge may revoke such parole for violation of conditions by directing the proper authority to execute the sentence and again confine the accused person to jail for the time specified by the court, which shall not exceed the initial jail sentence imposed, less the time served. (Ord. 18734 § 6, 10-17-06; Ord. 17666 § 66, 3-27-01. Code 1995 § 50-101.)

    State Law References: Similar state statute, K.S.A. 12-4511.

2.110.640 Judgment set aside, when.

The municipal judge, on motion of the accused person or on his or her own motion, shall set aside a judgment if the complaint does not charge a violation of a city ordinance, or if the court was without jurisdiction of the offense. The motion for setting aside the judgment shall be made within 10 days after the finding of guilty, or within such further time as the court may fix during the 10-day period. (Ord. 17666 § 67, 3-27-01. Code 1995 § 50-102.)

    State Law References: Similar state statute, K.S.A. 12-4512.

2.110.650 Correction of errors.

The municipal judge may correct an illegal sentence at any time. Clerical mistakes in judgments or orders may be corrected by the court at any time. (Ord. 17666 § 68, 3-27-01. Code 1995 § 50-103.)

    State Law References: Similar statute, K.S.A. 12-4513.

2.110.660 Expungement of certain convictions.

(a) Except as provided in subsection (b) of this section, any person who has been convicted of a violation of a city ordinance of this state may petition the convicting court for the expungement of such conviction if three or more years have elapsed since the person:

(1) Satisfied the sentence imposed; or

(2) Was discharged from probation, parole or a suspended sentence.

(b) No person may petition for expungement until five or more years have elapsed since the person satisfied the sentence imposed or was discharged from probation, parole, conditional release or a suspended sentence, if such person was convicted of the violation of a city ordinance which would also constitute:

(1) Vehicular homicide, as defined by K.S.A. 21-3405, and amendments thereto;

(2) A violation of K.S.A. 8-1567, and amendments thereto;

(3) Driving while the privilege to operate a motor vehicle on the public highways of this state has been canceled, suspended or revoked, as prohibited by K.S.A. 8-262, and amendments thereto;

(4) Perjury resulting from a violation of K.S.A. 8-261a, and amendments thereto;

(5) A violation of the provisions of the fifth clause of K.S.A. 8-142, and amendments thereto, relating to fraudulent applications;

(6) Any crime punishable as a felony wherein a motor vehicle was used in the perpetration of such crime;

(7) Failing to stop at the scene of an accident and perform the duties required by K.S.A. 8-1602, 8-1603 or 8-1604, and amendments thereto;

(8) A violation of the provisions of K.S.A. 40-3104, and amendments thereto, relating to motor vehicle liability insurance coverage; or

(9) A violation of K.S.A. 21-3405b, and amendments thereto.

(c) When a petition for expungement is filed, the court shall set a date for a hearing thereon and shall give notice thereof to the prosecuting attorney. The petition shall state: (1) the defendant’s full name; (2) the full name of the defendant at the time of arrest and conviction, if different than the defendant’s current name; (3) the defendant’s sex, race, and date of birth; (4) the crime for which the defendant was convicted; (5) the date of the defendant’s conviction; and (6) the identity of the convicting court. A municipal court may prescribe a fee to be charged as costs for a person petitioning for an order of expungement pursuant to this section. Any person who may have relevant information about the petitioner may testify at the hearing. The court may inquire into the background of the petitioner and shall have access to any reports or records relating to the petitioner that are on file with the secretary of corrections or the Kansas Parole Board.

(d) At the hearing on the petition, the court shall order the petitioner’s conviction expunged if the court finds that:

(1) The petitioner has not been convicted of a felony in the past two years and no proceeding involving any such crime is presently pending or being instituted against the petitioner;

(2) The circumstances and behavior of the petitioner warrant the expungement; and

(3) The expungement is consistent with the public welfare.

(e) When the court has ordered a conviction expunged, the order of expungement shall state the information required to be contained in the petition. The clerk of the court shall send a certified copy of the order of expungement to the Kansas Bureau of Investigation which shall notify the Federal Bureau of Investigation, the secretary of corrections and any other criminal justice agency which may have a record of the conviction. After the order of expungement is entered, the petitioner shall be treated as not having been convicted of the crime, except that:

(1) Upon conviction for any subsequent crime, the conviction that was expunged may be considered as a prior conviction in determining the sentence to be imposed;

(2) The petitioner shall disclose that the conviction occurred if asked about previous convictions (i) in any application for employment as a detective with a private detective agency, as defined by K.S.A. 75-7b01, and amendments thereto; as security personnel with a private patrol operator, as defined by K.S.A. 75-7b01, and amendments thereto; with a criminal justice agency, as defined by K.S.A. 22-4701, and amendments thereto; or with an institution, as defined in K.S.A. 76-12a01, and amendments thereto, of the department of social and rehabilitation services; (ii) in any application for admission, or for an order of reinstatement, to the practice of law in this state; (iii) to aid in determining the petitioner’s qualifications for employment with the Kansas Lottery or for work in sensitive areas within the Kansas Lottery as deemed appropriate by the executive director of the Kansas Lottery; (iv) to aid in determining the petitioner’s qualifications for Executive Director of the Kansas Racing Commission, for employment with the Commission or for work in sensitive areas in parimutuel racing as deemed appropriate by the Executive Director of the Commission, or to aid in determining qualifications for licensure or renewal of licensure by the Commission; (v) upon application for a commercial driver’s license under K.S.A. 8-2125 through 8-2142, and amendments thereto; (vi) the petitioner’s qualifications to be an employee of the state Gaming Agency; (vii) the petitioner’s qualifications to be an employee of a tribal gaming commission or to hold a license issued pursuant to a tribal-state gaming compact; or (viii) in any application for registration as a broker-dealer, agent, investment advisor or investment adviser representative, all as defined in K.S.A. 17-1252 and amendments thereto;

(3) The court, in the order of expungement, may specify other circumstances under which the conviction is to be disclosed; and

(4) The conviction may be disclosed in a subsequent prosecution for an offense which requires as an element of such offense a prior conviction of the type expunged.

(f) Whenever a person is convicted of an ordinance violation, pleads guilty and pays a fine for such a violation, is placed on parole or probation or is granted a suspended sentence for such a violation, the person shall be informed of the ability to expunge the conviction.

(g) Subject to the disclosures required pursuant to subsection (e) of this section, in any application for employment, license or other civil right or privilege, or any appearance as a witness, a person whose conviction of an offense has been expunged under this statute may state that such person has never been convicted of such offense.

(h) Whenever the record of any conviction has been expunged under the provisions of this section or under the provisions of any other existing or former statute, the custodian of the records of arrest, conviction and incarceration relating to that crime shall not disclose the existence of such records, except when requested by:

(1) The person whose record was expunged;

(2) A criminal justice agency, private detective agency or a merchant guard or merchant patrol operator, and the request is accompanied by a statement that the request is being made in conjunction with an application for employment with such agency or operator by the person whose record has been expunged;

(3) A court, upon a showing of a subsequent conviction of the person whose record has been expunged;

(4) The secretary of social and rehabilitation services, or a designee of the secretary, for the purpose of obtaining information relating to employment in an institution, as defined in K.S.A. 76-12a01, and amendments thereto, of the department of social and rehabilitation services of any person whose record has been expunged;

(5) A person entitled to such information pursuant to the terms of the expungement order;

(6) A prosecuting attorney, and such request is accompanied by a statement that the request is being made in conjunction with a prosecution of an offense that requires a prior conviction as one of the elements of such offense;

(7) The supreme court, the clerk or disciplinary administrator thereof, the state board for admission of attorneys or the state board for discipline of attorneys, and the request is accompanied by a statement that the request is being made in conjunction with an application for admission, or for an order of reinstatement, to the practice of law in this state by the person whose record has been expunged;

(8) The Kansas Lottery, and the request is accompanied by a statement that the request is being made to aid in determining qualifications for employment with the Kansas Lottery or for work in sensitive areas within the Kansas Lottery as deemed appropriate by the executive director of the Kansas Lottery;

(9) The governor or the Kansas Racing Commission, or a designee of the Commission, and the request is accompanied by a statement that the request is being made to aid in determining qualifications for Executive Director of the Commission, for employment with the Commission, for work in sensitive areas in parimutuel racing as deemed appropriate by the Executive Director of the Commission or for licensure, renewal of licensure or continued licensure by the Commission;

(10) The state Gaming Agency, and the request is accompanied by a statement that the request is being made to aid in determining qualifications: (i) to be an employee of the state Gaming Agency; or (ii) to be an employee of a tribal gaming commission or to hold a license issued pursuant to a tribal-state gaming compact; or

(11) The Kansas Securities Commissioner, or a designee of the Commissioner, and the request is accompanied by a statement that the request is being made in conjunction with an application for registration as a broker-dealer, agent, investment adviser or investment adviser representative by such agency and the application was submitted by the person whose record has been expunged. (Ord. 17666 § 69, 3-27-01. Code 1995 § 50-104.)

    State Law References: Similar state statute, K.S.A. 12-4516.

2.110.670 Expungement of arrest records.

(a) Any person who has been arrested on a violation of a city ordinance of this state may petition the court for the expungement of such arrest record.

(b) When a petition for expungement is filed, the court shall set a date for hearing on such petition and shall cause notice of such hearing to be given to the prosecuting attorney and the arresting law enforcement agency. The petition shall state:

(1) The petitioner’s full name;

(2) The full name of the petitioner at the time of arrest, if different than the petitioner’s current name;

(3) The petitioner’s sex, race and date of birth;

(4) The crime for which the petitioner was arrested;

(5) The date of the petitioner’s arrest; and

(6) The identity of the arresting law enforcement agency.

A municipal court may prescribe a fee to be charged as costs for a person petitioning for an order of expungement pursuant to this section. Any person who may have relevant information about the petitioner may testify at the hearing. The court may inquire into the background of the petitioner.

(c) At the hearing on a petition for expungement, the court shall order the arrest record and subsequent court proceedings, if any, expunged upon finding:

(1) The arrest occurred because of mistaken identity;

(2) A court has found that there was no probable cause for the arrest;

(3) The petitioner was found not guilty in court proceedings; or

(4) The expungement would be in the best interests of justice and (i) charges have been dismissed; or (ii) no charges have been or are likely to be filed.

(d) When the court has ordered expungement of an arrest record and subsequent court proceedings, if any, the order shall state the information required to be stated in the petition and shall state the grounds for expungement under subsection (c) of this section. The clerk of the court shall send a certified copy of the order to the Federal Bureau of Investigation, the Kansas Bureau of Investigation, the secretary of corrections and any other criminal justice agency which may have a record of the arrest. If an order of expungement is entered, the petitioner shall be treated as not having been arrested.

(e) If the ground for expungement is as provided in subsection (c)(4) of this section, the court shall determine whether, in the interest of public welfare, the records should be available for any of the following purposes:

(1) In any application for employment as a detective with a private detective agency, as defined by K.S.A. 75-7b01 and amendments thereto; as security personnel with a merchant guard or merchant patrol operator, as defined by K.S.A. 75-7b01 and amendments thereto; or with an institution, as defined in K.S.A. 76-12a01 and amendments thereto, of the Department of Social and Rehabilitation Services;

(2) In any application for admission, or for an order of reinstatement, to the practice of law in this state;

(3) To aid in determining the petitioner’s qualifications for employment with the Kansas Lottery or for work in sensitive areas within the Kansas Lottery as deemed appropriate by the executive director of the Kansas Lottery;

(4) To aid in determining the petitioner’s qualifications for Executive Director of the Kansas Racing Commission, for employment with the Commission or for work in sensitive areas in parimutuel racing as deemed appropriate by the Executive Director of the Commission, or to aid in determining qualifications for licensure or renewal of licensure by the Commission;

(5) In any application for a commercial driver’s license under K.S.A. 8-2125 through 8-2142 and amendments thereto;

(6) To aid in determining the petitioner’s qualifications to be an employee of the state gaming agency;

(7) To aid in determining the petitioner’s qualifications to be an employee of a tribal gaming commission or to hold a license issued pursuant to a tribal-state gaming compact; or

(8) In any other circumstances which the court deems appropriate.

(f) Subject to any disclosures required under subsection (e) of this section, in any application for employment, license or other civil right or privilege, or any appearance as a witness, a person whose arrest records have been expunged as provided in this section may state that such person has never been arrested.

(g) Whenever a petitioner’s arrest records have been expunged as provided in this section, the custodian of the records of arrest, incarceration due to arrest or court proceedings related to the arrest, shall not disclose the arrest or any information related to the arrest, except as directed by the order of expungement or when requested by the person whose arrest record was expunged. (Ord. 17666 § 70, 3-27-01. Code 1995 § 50-105.)

    Cross References: Police department, TMC 2.25.230.

    State Law References: Similar state statute, K.S.A. 12-4516a.

2.110.680 Conviction of ordinances comparable to class A or B misdemeanor or assault – Fingerprinting – Costs.

(a) The municipal court judge shall ensure that all persons convicted of violating municipal ordinance provisions that prohibit conduct comparable to a class A or B misdemeanor or assault as defined in K.S.A. 21-3408 and amendments thereto under a Kansas criminal statute are fingerprinted and processed.

(b) The municipal court judge shall order the individual to be fingerprinted at an appropriate location as determined by the municipal court judge. Failure of the person to be fingerprinted after court order issued by the municipal judge shall constitute contempt of court. To reimburse the city or other entity for costs associated with fingerprinting, the municipal court judge may assess reasonable court costs, in addition to other court costs imposed by the state or municipality. (Ord. 17666 § 71, 3-27-01. Code 1995 § 50-106.)

    State Law References: Similar state statute, K.S.A. 12-4517.