Session of 2021
SENATE BILL No. 190
By Committee on Federal and State Affairs
2-9

1 AN ACT concerning crimes, punishment and criminal procedure; relating
2 to firearms, possession thereof; reducing the underlying felonies for the
3 crime of criminal possession of a weapon by a convicted felon;
4 restoration of right to possess firearms upon expungement of
5 conviction; amending K.S.A. 2020 Supp. 21-6304 and 21-6614 and
6 repealing the existing sections.
7
8 WHEREAS, The amendments made to the provisions of K.S.A. 2020
9 Supp. 21-6304 and 21-6614 by this act shall be known and may be cited as
10 the Kansas protection of firearms rights act;
11 Now, therefore:
12 Be it enacted by the Legislature of the State of Kansas:
13 Section 1. K.S.A. 2020 Supp. 21-6304 is hereby amended to read as
14 follows: 21-6304. (a) Criminal possession of a weapon by a convicted
15 felon is possession of any weapon by a person who:
16 (1) Has been convicted of a person felony or a violation of article 57
17 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto,
18 K.S.A. 2010 Supp. 21-36a01 through 21-36a17, prior to their transfer, or
19 any violation of any provision of the uniform controlled substances act
20 prior to July 1, 2009, or a crime under a law of another jurisdiction which
21 that is substantially the same as such felony or violation, or was
22 adjudicated a juvenile offender because of the commission of an act which
23 if done by an adult would constitute the commission of a person felony or
24 a violation of article 57 of chapter 21 of the Kansas Statutes Annotated,
25 and amendments thereto, K.S.A. 2010 Supp. 21-36a01 through 21-36a17,
26 prior to their transfer, or any violation of any provision of the uniform
27 controlled substances act prior to July 1, 2009, and was found by the
28 convicting court to have been in possession of used a firearm at the time of
29 in the commission of the crime; or
30 (2) within the preceding five years has been convicted of a felony,
31 other than those specified in subsection (a)(3)(A), under the laws of
32 Kansas or a crime under a law of another jurisdiction which is
33 substantially the same as such felony, has been released from
34 imprisonment for a felony or was adjudicated as a juvenile offender
35 because of the commission of an act which if done by an adult would
36 constitute the commission of a felony, and was not found to have been in
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1 possession of a firearm at the time of the commission of the crime; or
2 (3) within the preceding 10 years, has been:
3 (A) Convicted of a:
4 (A) felony under:
5 (i) K.S.A. 2020 Supp. 21-5402, 21-5403, 21-5404, 21-5405, 21-5408,
6 subsection (b) or (d) of 21-5412(b) or (d), subsection (b) or (d) of 21-
7 5413(b) or (d), subsection (a) of 21-5415(a), subsection (b) of 21-5420(b),
8 21-5503, subsection (b) of 21-5504(b), subsection (b) of 21-5505,(b) and
9 subsection (b) of 21-5807(b), and amendments thereto;
10 (ii) article 57 of chapter 21 of the Kansas Statutes Annotated, and
11 amendments thereto;
12 (iii) K.S.A. 2010 Supp. 21-36a01 through 21-36a17, prior to their
13 transfer;
14 (iv) K.S.A. 21-3401, 21-3402, 21-3403, 21-3404, 21-3410, 21-3411,
15 21-3414, 21-3415, 21-3419, 21-3420, 21-3421, 21-3427, 21-3442, 21-
16 3502, 21-3506, 21-3518, 21-3716, 65-4127a, 65-4127b, 65-4159 through
17 65-4165 or 65-7006, prior to their repeal;
18 (v) an attempt, conspiracy or criminal solicitation as defined in
19 K.S.A. 21-3301, 21-3302 or 21-3303, prior to their repeal, or K.S.A. 2020
20 Supp. 21-5301, 21-5302 or 21-5303, and amendments thereto, of any such
21 felony; or
22 (vi) a crime under a law of another jurisdiction which that is
23 substantially the same as such felony,; or
24 (B) has been released from imprisonment for such felony, or was
25 adjudicated as a juvenile offender because of the commission of an act
26 which if done by an adult would constitute the commission of such felony,
27 was not found to have been in possession of a firearm at the time of the
28 commission of the crime, and has not had the conviction of such crime
29 expunged or been pardoned for such crime. The provisions of subsection
30 (j)(2) of K.S.A. 2020 Supp. 21-6614, and amendments thereto, shall not
31 apply to an individual who has had a conviction under this paragraph
32 expunged; or
33 (B) nonperson felony under the laws of Kansas or a crime under the
34 laws of another jurisdiction which is substantially the same as such
35 nonperson felony, has been released from imprisonment for such
36 nonperson felony or was adjudicated as a juvenile offender because of the
37 commission of an act which if done by an adult would constitute the
38 commission of a nonperson felony, and was found to have been in
39 possession of a firearm at the time of the commission of the crime.
40 (b) Criminal possession of a weapon by a convicted felon is a
41 severity level 8, nonperson felony.
42 (c) This section shall not apply to a person who has been convicted of
43 a crime and has had the conviction of such crime expunged or has been
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1 pardoned for such crime.
2 (d) As used in this section:
3 (1) "Knife" means a dagger, dirk, switchblade, stiletto, straight-edged
4 razor or any other dangerous or deadly cutting instrument of like character;
5 and
6 (2) "weapon" means a firearm or a knife.
7 Sec. 2. K.S.A. 2020 Supp. 21-6614 is hereby amended to read as
8 follows: 21-6614. (a) (1) Except as provided in subsections (b), (c), (d),
9 (e) and (f), any person convicted in this state of a traffic infraction,
10 cigarette or tobacco infraction, misdemeanor or a class D or E felony, or
11 for crimes committed on or after July 1, 1993, any nongrid felony or
12 felony ranked in severity levels 6 through 10 of the nondrug grid, or for
13 crimes committed on or after July 1, 1993, but prior to July 1, 2012, any
14 felony ranked in severity level 4 of the drug grid, or for crimes committed
15 on or after July 1, 2012, any felony ranked in severity level 5 of the drug
16 grid may petition the convicting court for the expungement of such
17 conviction or related arrest records if three or more years have elapsed
18 since the person: (A) Satisfied the sentence imposed; or (B) was
19 discharged from probation, a community correctional services program,
20 parole, postrelease supervision, conditional release or a suspended
21 sentence.
22 (2) Except as provided in subsections (b), (c), (d), (e) and (f), any
23 person who has fulfilled the terms of a diversion agreement may petition
24 the district court for the expungement of such diversion agreement and
25 related arrest records if three or more years have elapsed since the terms of
26 the diversion agreement were fulfilled.
27 (b) Any person convicted of prostitution, as defined in K.S.A. 21-
28 3512, prior to its repeal, convicted of a violation of K.S.A. 2020 Supp. 21-
29 6419, and amendments thereto, or who entered into a diversion agreement
30 in lieu of further criminal proceedings for such violation, may petition the
31 convicting court for the expungement of such conviction or diversion
32 agreement and related arrest records if:
33 (1) One or more years have elapsed since the person satisfied the
34 sentence imposed or the terms of a diversion agreement or was discharged
35 from probation, a community correctional services program, parole,
36 postrelease supervision, conditional release or a suspended sentence; and
37 (2) such person can prove they were acting under coercion caused by
38 the act of another. For purposes of this subsection, "coercion" means:
39 Threats of harm or physical restraint against any person; a scheme, plan or
40 pattern intended to cause a person to believe that failure to perform an act
41 would result in bodily harm or physical restraint against any person; or the
42 abuse or threatened abuse of the legal process.
43 (c) Except as provided in subsections (e) and (f), no person may
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1 petition for expungement until five or more years have elapsed since the
2 person satisfied the sentence imposed or the terms of a diversion
3 agreement or was discharged from probation, a community correctional
4 services program, parole, postrelease supervision, conditional release or a
5 suspended sentence, if such person was convicted of a class A, B or C
6 felony, or for crimes committed on or after July 1, 1993, if convicted of an
7 off-grid felony or any felony ranked in severity levels 1 through 5 of the
8 nondrug grid, or for crimes committed on or after July 1, 1993, but prior to
9 July 1, 2012, any felony ranked in severity levels 1 through 3 of the drug
10 grid, or for crimes committed on or after July 1, 2012, any felony ranked
11 in severity levels 1 through 4 of the drug grid, or:
12 (1) Vehicular homicide, as defined in K.S.A. 21-3405, prior to its
13 repeal, or K.S.A. 2020 Supp. 21-5406, and amendments thereto, or as
14 prohibited by any law of another state which that is in substantial
15 conformity with that statute;
16 (2) driving while the privilege to operate a motor vehicle on the
17 public highways of this state has been canceled, suspended or revoked, as
18 prohibited by K.S.A. 8-262, and amendments thereto, or as prohibited by
19 any law of another state which that is in substantial conformity with that
20 statute;
21 (3) perjury resulting from a violation of K.S.A. 8-261a, and
22 amendments thereto, or resulting from the violation of a law of another
23 state which that is in substantial conformity with that statute;
24 (4) violating the provisions of K.S.A. 8-142 Fifth, and amendments
25 thereto, relating to fraudulent applications or violating the provisions of a
26 law of another state which that is in substantial conformity with that
27 statute;
28 (5) any crime punishable as a felony wherein a motor vehicle was
29 used in the perpetration of such crime;
30 (6) failing to stop at the scene of an accident and perform the duties
31 required by K.S.A. 8-1603, prior to its repeal, or K.S.A. 8-1602 or 8-1604,
32 and amendments thereto, or required by a law of another state which that
33 is in substantial conformity with those statutes;
34 (7) violating the provisions of K.S.A. 40-3104, and amendments
35 thereto, relating to motor vehicle liability insurance coverage; or
36 (8) a violation of K.S.A. 21-3405b, prior to its repeal.
37 (d) (1) No person may petition for expungement until five or more
38 years have elapsed since the person satisfied the sentence imposed or the
39 terms of a diversion agreement or was discharged from probation, a
40 community correctional services program, parole, postrelease supervision,
41 conditional release or a suspended sentence, if such person was convicted
42 of a first violation of K.S.A. 8-1567, and amendments thereto, including
43 any diversion for such violation.
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1 (2) No person may petition for expungement until 10 or more years
2 have elapsed since the person satisfied the sentence imposed or was
3 discharged from probation, a community correctional services program,
4 parole, postrelease supervision, conditional release or a suspended
5 sentence, if such person was convicted of a second or subsequent violation
6 of K.S.A. 8-1567, and amendments thereto.
7 (3) Except as provided further, the provisions of this subsection shall
8 apply to all violations committed on or after July 1, 2006. The provisions
9 of subsection (d)(2) shall not apply to violations committed on or after
10 July 1, 2014, but prior to July 1, 2015.
11 (e) There shall be no expungement of convictions for the following
12 offenses or of convictions for an attempt to commit any of the following
13 offenses:
14 (1) Rape, as defined in K.S.A. 21-3502, prior to its repeal, or K.S.A.
15 2020 Supp. 21-5503, and amendments thereto;
16 (2) indecent liberties with a child or aggravated indecent liberties
17 with a child, as defined in K.S.A. 21-3503 or 21-3504, prior to their repeal,
18 or K.S.A. 2020 Supp. 21-5506, and amendments thereto;
19 (3) criminal sodomy, as defined in K.S.A. 21-3505(a)(2) or (a)(3),
20 prior to its repeal, or K.S.A. 2020 Supp. 21-5504(a)(3) or (a)(4), and
21 amendments thereto;
22 (4) aggravated criminal sodomy, as defined in K.S.A. 21-3506, prior
23 to its repeal, or K.S.A. 2020 Supp. 21-5504, and amendments thereto;
24 (5) indecent solicitation of a child or aggravated indecent solicitation
25 of a child, as defined in K.S.A. 21-3510 or 21-3511, prior to their repeal,
26 or K.S.A. 2020 Supp. 21-5508, and amendments thereto;
27 (6) sexual exploitation of a child, as defined in K.S.A. 21-3516, prior
28 to its repeal, or K.S.A. 2020 Supp. 21-5510, and amendments thereto;
29 (7) internet trading in child pornography or aggravated internet
30 trading in child pornography, as defined in K.S.A. 2020 Supp. 21-5514,
31 and amendments thereto;
32 (8) aggravated incest, as defined in K.S.A. 21-3603, prior to its
33 repeal, or K.S.A. 2020 Supp. 21-5604, and amendments thereto;
34 (9) endangering a child or aggravated endangering a child, as defined
35 in K.S.A. 21-3608 or 21-3608a, prior to their repeal, or K.S.A. 2020 Supp.
36 21-5601, and amendments thereto;
37 (10) abuse of a child, as defined in K.S.A. 21-3609, prior to its repeal,
38 or K.S.A. 2020 Supp. 21-5602, and amendments thereto;
39 (11) capital murder, as defined in K.S.A. 21-3439, prior to its repeal,
40 or K.S.A. 2020 Supp. 21-5401, and amendments thereto;
41 (12) murder in the first degree, as defined in K.S.A. 21-3401, prior to
42 its repeal, or K.S.A. 2020 Supp. 21-5402, and amendments thereto;
43 (13) murder in the second degree, as defined in K.S.A. 21-3402, prior
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1 to its repeal, or K.S.A. 2020 Supp. 21-5403, and amendments thereto;
2 (14) voluntary manslaughter, as defined in K.S.A. 21-3403, prior to
3 its repeal, or K.S.A. 2020 Supp. 21-5404, and amendments thereto;
4 (15) involuntary manslaughter, as defined in K.S.A. 21-3404, prior to
5 its repeal, or K.S.A. 2020 Supp. 21-5405, and amendments thereto;
6 (16) sexual battery, as defined in K.S.A. 21-3517, prior to its repeal,
7 or K.S.A. 2020 Supp. 21-5505, and amendments thereto, when the victim
8 was less than 18 years of age at the time the crime was committed;
9 (17) aggravated sexual battery, as defined in K.S.A. 21-3518, prior to
10 its repeal, or K.S.A. 2020 Supp. 21-5505, and amendments thereto;
11 (18) a violation of K.S.A. 8-2,144, and amendments thereto,
12 including any diversion for such violation; or
13 (19) any conviction for any offense in effect at any time prior to July
14 1, 2011, that is comparable to any offense as provided in this subsection.
15 (f) Notwithstanding any other law to the contrary, for any offender
16 who is required to register as provided in the Kansas offender registration
17 act, K.S.A. 22-4901 et seq., and amendments thereto, there shall be no
18 expungement of any conviction or any part of the offender's criminal
19 record while the offender is required to register as provided in the Kansas
20 offender registration act.
21 (g) (1) When a petition for expungement is filed, the court shall set a
22 date for a hearing of such petition and shall cause notice of such hearing to
23 be given to the prosecutor and the arresting law enforcement agency. The
24 petition shall state the:
25 (A) Defendant's full name;
26 (B) full name of the defendant at the time of arrest, conviction or
27 diversion, if different than the defendant's current name;
28 (C) defendant's sex, race and date of birth;
29 (D) crime for which the defendant was arrested, convicted or
30 diverted;
31 (E) date of the defendant's arrest, conviction or diversion; and
32 (F) identity of the convicting court, arresting law enforcement
33 authority or diverting authority.
34 (2) Except as otherwise provided by law, a petition for expungement
35 shall be accompanied by a docket fee in the amount of $176. On and after
36 July 1, 2019, through June 30, 2025, the supreme court may impose a
37 charge, not to exceed $19 per case, to fund the costs of non-judicial
38 personnel. The charge established in this section shall be the only fee
39 collected or moneys in the nature of a fee collected for the case. Such
40 charge shall only be established by an act of the legislature and no other
41 authority is established by law or otherwise to collect a fee.
42 (3) All petitions for expungement shall be docketed in the original
43 criminal action. Any person who may have relevant information about the
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1 petitioner may testify at the hearing. The court may inquire into the
2 background of the petitioner and shall have access to any reports or
3 records relating to the petitioner that are on file with the secretary of
4 corrections or the prisoner review board.
5 (h) At the hearing on the petition, the court shall order the petitioner's
6 arrest record, conviction or diversion expunged if the court finds that:
7 (1) The petitioner has not been convicted of a felony in the past two
8 years and no proceeding involving any such crime is presently pending or
9 being instituted against the petitioner;
10 (2) the circumstances and behavior of the petitioner warrant the<