SESSION OF 2022
SUPPLEMENTAL NOTE ON HOUSE BILL NO. 2387
As Amended by Senate Committee on Judiciary

Brief*
HB 2387 would create the crime of operating an aircraft
under the influence, provide for testing related to the crime,
and repeal current statutes prohibiting the operation of aircraft
under influence of alcohol or drugs and providing for related
testing.

Operating an Aircraft Under the Influence
The bill would define “operating an aircraft under the
influence” as operating or attempting to operate any aircraft
within Kansas while:
● The alcohol concentration in the person’s blood or
breath, as shown by any competent evidence,
including other competent evidence, is 0.04 or
more;
● The alcohol concentration in the person’s blood or
breath, as measured within four hours of the time
of operating or attempting to operate an aircraft, is
0.04 or more;
● Under the influence of alcohol to a degree that
renders the person incapable of safely operating
an aircraft;
● Under the influence of any drug or combination of
drugs to a degree that renders the person
incapable of safely operating an aircraft; or
____________________
*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org
 ● Under the influence of a combination of alcohol
and any drug or drugs to a degree that renders the
person incapable of safely operating an aircraft.
The offense would be a class A nonperson
misdemeanor, unless it occurred while the person convicted
is prohibited from operating an aircraft by a court order
pursuant to the bill or because the person’s pilot license is
revoked or suspended by order of the Federal Aviation
Administration for a prior alcohol or drug-related conviction, in
which case it would be a severity level 6, nonperson felony.
For misdemeanor offenses, the following provisions
would apply:
● On a first conviction, the person convicted would
be sentenced to no less than 48 consecutive hours
nor more than 6 months’ imprisonment or, in the
court’s discretion, 100 hours of public service, and
fined not less than $750; and
● On a second or subsequent conviction, the person
convicted would be sentenced to no less than 90
days nor more than 1 year’s imprisonment and
fined not less than $1,250, and the following
conditions would apply:
○ As a condition of any probation granted, the
person would be required to serve at least
120 hours of confinement, including at least
48 hours’ imprisonment. The remainder could
be served by a combination of imprisonment,
work release (if the work release program
requires the person to return to confinement
at the end of each day), or a house arrest
program;
○ The person would receive hour-for-hour credit
for time served in work release or house
arrest until the minimum 120 hours’
confinement is met. If required to serve more

2- 2387
 than the minimum 120 hours’ confinement,
the person would receive day-for-day credit
for time served once the minimum 120 hours’
confinement is met, unless otherwise ordered
by the court; and
○ When in work release, the person would only
be given credit for time served in confinement
at the end of and continuing to the beginning
of the person’s work day. When under house
arrest, the person would be monitored by an
electronic monitoring device verifying the
person’s location, and the person could only
be given credit for the time served within the
boundaries of the person’s residence.

For felony offenses, the following provisions would
apply:
● As a condition of any probation granted, the person
would be required to serve at least 30 days of
confinement, including at least 48 consecutive
hours’ imprisonment. The remainder could be
served by a combination of imprisonment, work
release (if the work release program requires the
person to return to confinement at the end of each
day), or a house arrest program;
● The person would receive hour-for-hour credit for
time served in work release or house arrest for the
first 240 hours of confinement so served, and
would then receive day-for-day credit for time so
served, unless otherwise ordered by the court; and
● When in work release, the person would only be
given credit for time served in confinement at the
end of and continuing to the beginning of the
person’s work day. When under house arrest, the
person would be monitored by an electronic
monitoring device verifying the person’s location,
3- 2387
 and the person could only be given credit for the
time served within the boundaries of the person’s
residence.
As part of the judgment of conviction, the court would be
required to order the person convicted not to operate an
aircraft for any purposes for six months from the date of final
discharge from the county jail, or the date of payment or
satisfaction of a fine, whichever is later, or one year from such
date on a second conviction. If the court suspends the
sentence and places the person on probation, the court would
be required to order as a condition of probation that the
person not operate an aircraft for any purpose for a period of
30 days from the date of the order on a first conviction or 60
days from the date of the order on a second conviction.
In determining the number of occurrences of the
offense, a conviction would include entering into a diversion
agreement in lieu of further criminal proceedings on a
complaint alleging commission of operating an aircraft under
the influence, and it would be irrelevant whether an offense
occurred before or after conviction or diversion for a previous
offense.
If a person is charged with a violation of the offense
involving drugs, the fact that the person is or has been
entitled to use the drug under Kansas law would not
constitute a defense against the charge.

Related Testing Provisions
The bill would authorize a request to a person operating
or attempting to operate an aircraft in Kansas to submit to
one or more tests of the person’s blood, breath, urine, or
other bodily substance to determine the presence of alcohol
or drugs, administered at the direction of a law enforcement
officer. The procedural requirements and related provisions
would reflect current law for such testing for the crimes being
repealed by the bill or in the context of driving under the

4- 2387
influence (DUI) offenses, except for certain oral and written
notice requirements in the DUI procedure.
Similarly, the bill would include provisions allowing a law
enforcement officer to request a person operating or
attempting to operate an aircraft in Kansas to submit to a
preliminary screening of the person’s breath or oral fluid, or
both, if the officer has reasonable suspicion to believe the
person has been operating or attempting to operate an
aircraft while under the influence of alcohol, drugs, or a
combination of both. The procedural requirements and
related provisions would reflect current law for such
preliminary screenings in the DUI context.
The bill would add references to the testing provisions
for this crime to continuing references to DUI testing
provisions in the following statutory locations:
● In the Kansas Code of Criminal Procedure,
regarding admissibility in any hearing or trial;
● In the Kansas Rules of Evidence, regarding the
physician-patient privilege;
● In a statute allowing the Secretary of Health and
Environment to adopt rules and regulations
regarding approved preliminary screening devices;
and
● In a statute authorizing the Director of the Kansas
Bureau of Investigation to adopt rules and
regulations regarding a list of preliminary screening
devices approved for testing of oral fluid.
Background
The bill was introduced by the House Committee on
Judiciary at the request of Representative Ralph.

5- 2387
House Committee on Judiciary
In the House Committee hearing on February 16, 2021,
a representative of the Judicial Council’s DUI Advisory
Committee testified as a proponent of the bill, stating it was
based on a recommendation from the Committee’s study,
which was originally requested in 2018 by Representative
Finch, as then-chairperson of the House Judiciary
Committee. The conferee stated Kansas’ current statutes
governing operating an aircraft under the influence of drugs
or alcohol were enacted in 1981 and have not been updated,
and the bill would provide consistency for law enforcement
officers and protect constitutional rights by making the
process and penalties for this crime closely resemble the DUI
process and penalties.
A representative of the Kansas Association of Criminal
Defense Lawyers provided written-only neutral testimony.
A representative of the Kansas Agricultural Aviation
Association (KAAA) provided written-only opponent
testimony. [Note: The House Committee chairperson
indicated during House Committee action on the bill that the
KAAA representative has communicated that his organization
no longer opposes the bill.]
On February 24, 2021, the House Committee amended
the bill to clarify the application of the felony provision,
remove certain conditions of sentencing for the felony
provision, and add testing provisions and references to
further align the provisions of the bill with continuing DUI
provisions. [Note: The Senate Committee restored conditions
of sentencing for the felony provision similar to those
removed by the House Committee.]


6- 2387
Senate Committee on Judiciary
In the Senate Committee hearing on March 24, 2021,
the same proponent testified as before the House
Committee. No neutral or opponent testimony was provided.
On January 18, 2022, the Senate Committee amended
the bill by:
● Restoring conditions of sentencing for the felony
provisions similar to those removed by the House
Committee; and
● Making technical updates to ensure consistency in
statutory references and wording.
Fiscal Information
According to the February 23, 2021, revised fiscal note
prepared by the Division of the Budget on the bill, as
introduced, the Kansas Sentencing Commission estimates
enactment of the bill may have an impact on prison
admissions and bed space, but the effect cannot be
determined at this time. The current estimated available bed
capacity is 9,420 for males and 948 for females. Based upon
the Commission’s most recent ten-year prison population
projection, it is estimated the year-end population for
available male capacity will be under capacity by 1,287
inmates in FY 2021 and 1,241 inmates in FY 2022.
The Department of Corrections indicates enactment of
the bill would have a minimal fiscal effect on probation or
facility caseloads, which could be absorbed within existing
resources.
The Office of Judicial Administration indicates enactment
of the bill could result in additional cases being filed and could
affect the complexity of the cases, resulting in additional time
spent by judges and court staff. The bill also could result in

7- 2387
the collection of additional docket fees, fines, and other costs,
but a fiscal effect cannot be determined because the number
of additional cases cannot be estimated.
Any fiscal effect associated with enactment of the bill is
not reflected in The FY 2022 Governor’s Budget Report.
Crimes; operating an aircraft under the influence; penalties; testing


8- 2387


Statutes affected:
As introduced: 3-1001, 3-1002, 3-1003, 3-1004, 3-1005
As Amended by House Committee: 22-3437, 60-427, 65-1, 41-727, 75-712h, 3-1001, 3-1002, 3-1003, 3-1004, 3-1005
As Amended by Senate Committee: 22-3437, 60-427, 21-5708, 65-1, 8-1001, 41-727, 75-712h, 3-1001, 3-1002, 3-1003, 3-1004, 3-1005
Enrolled: 48-925