Kansas Attorney General Opinion 1992-002

ROBERT T. STEPHAN
ATTORNEY GENERAL January 10, 1992
ATTORNEY GENERAL OPINION NO. 92- 2
Lewis A. Heaven, Jr.
City Attorney
9000 West 62nd Terrace
Merriam, Kansas 66202
Re: Automobiles and Other Vehicles--Uniform Act
Regulating Traffic; Rules of the Road; Serious
Traffic Offenses--Driving Under the Influence of
Alcohol or Drugs; Sentencing
Synopsis: Under the circumstances stated herein, municipal
and district courts in Johnson county may sentence
DUI offenders to a facility located in Wyandotte
county. The mandatory imprisonment required by
K.S.A. 1990 Supp. 8-1567, as amended, for second
offenses may be partially served in a restrained
environment such as the Kansas City weekend
intervention program as long as the offender
remains under the custody and control of law
enforcement officials throughout the time the
minimum sentence is being served. Cited herein:
K.S.A. 1990 Supp. 8-1567, as amended by L. 1991,
19-1916; K.S.A.
as amended by L. 1991,
§ 3.
Dear Mr. Heaven:
You request our opinion regarding the availability of a
particular program to municipal and district courts in Johnson
county. You explain that Bethany Medical Center has
ch. 36, § 20; K.S.A. 12-4510;
1990 Supp. 19-1930; 21-4603,
ch. 89, § 4; L. 1990, ch. 47,

established the Kansas City weekend intervention program
(KCWIP) which is conducted on designated weekends at a
restricted-access portion of the medical center's facility
located in Wyandotte county. "The program is designed to
provide drug and alcohol information and education to those
individuals who have been sentenced to imprisonment pursuant
to K.S.A. 8-1567 [as] an alternative to sentencing to the
county jail. . . . [T]he Board of County Commissioners of
Wyandotte County . . . has approved a resolution designating
the portion of Bethany Medical Center utilized in the
KCWIP as a confinement facility. Furthermore, the Board of
County Commissioners of Wyandotte County has agreed to provide
law enforcement personnel through the County Sheriff's
Department. . . ." Your questions are as follows:
"1. Can municipal and district court judges in one county
sentence DUI offenders to serve their sentence in a facility
located within another county?
"2. Can second-time DUI offenders receive a combined
sentence of 48 consecutive hours in a restrained environment
(such as KCWIP below), and the balance of time in the county
jail?"
K.S.A. 12-4510 and K.S.A. 1990 Supp. 21-4603(2) discuss
dispositions municipal and district courts are authorized to
make. K.S.A. 12-4510 provides in part:
"When a sentence of imprisonment is
pronounced, the municipal judge or the
clerk of the municipal court shall prepare
and deliver to the chief of police a copy
of the entry of judgment, duly certified
by such judge or clerk, which shall be
sufficient authority to such chief of
police to execute the sentence and confine
the accused person to jail for the time
specified, or until further order of the
court."
K.S.A. 1990 Supp. 21-4603(2) provides in part:
"Except as provided in subsection (3),
whenever any person has been found guilty
of a crime, the [district] court may
adjudge any of the following:

"(a) Commit the defendant to the custody
of the secretary of corrections or, if
confinement is for a term less than one
year, to jail for the term provided by
law; . . ."
We find nothing to require "jailing" of offenders in the
county where the sentencing court is located, although there
is no duty for a "jail" to accept a prisoner from another
county except pursuant to K.S.A. 19-1916. See also K.S.A.
1990 Supp. 19-1930. You indicate that the program in question
will be provided only to individuals who request being
sentenced to the program and that Bethany will consent to
out-of-county offenders being sentenced to the program. Under
these circumstances, it is our opinion that municipal and
district courts in Johnson county may sentence DUI offenders
to a facility located in Wyandotte county.
You next question whether, upon a second DUI conviction,
offenders may receive a combined sentence of 48 consecutive
hours in a restrained environment such as the Kansas City
weekend intervention program (KCWIP), and the balance of the
time in the county jail.
K.S.A. 1990 Supp. 8-1567, as amended by L. 1991, ch. 36,
20, provides in part:
"(e) On a second conviction of a
violation of this section, a person shall
be sentenced to not less than 90 days nor
more than one year's imprisonment and
fined not less than $500 nor more than
$1,000. The five days' imprisonment
mandated by this subsection may be served
in a work release program only after such
person has served 48 consecutive hours'
imprisonment, provided such work release
program requires such person to
confinement at the end of each day in the
work release program. Except as provided
in subsection (g), the person convicted
must serve at least five consecutive days'
imprisonment before the person is granted
probation, suspension or reduction of
sentence or parole or is otherwise
released. As a condition of any grant of
probation, suspension of sentence or
parole or of any other release, the person

shall be required to enter into and
complete a treatment program for alcohol
and drug abuse as provided in K.S.A.
8-1008, and amendments thereto."
As noted in State v. Martin, 14 Kan.App.2d 138, 139
(1989), K.S.A. 1990 Supp. 8-1567 (then K.S.A. 1988 Supp.
8-1567) does not define the term imprisonment. Applying rules
of statutory construction, the court held that work release
programs were excluded from the definition of imprisonment.
14 Kan.App.2d at 140. (The statute was subsequently
amended to allow sentencing to work release programs after the
person has served 48 consecutive hours of imprisonment. L.
1990, ch. 47, § 3). The term imprisonment, as used in
K.S.A. 1990 Supp. 8-1567, was further defined by the Kansas
Supreme Court in State v. Meredith, 236 Kan. 866,
868-869 (1985):
"The statute here plainly and clearly
requires on a second offense of DUI the
offender must spend at least five days in
custody of law enforcement officials.
Time spent in an alcohol treatment center
where an individual is not under the
custody and control of law enforcement
officials, is no substitute for that
minimum imprisonment." (Emphasis added.)
You advise that persons sentenced to the KCWIP will be under
the custody and control of law enforcement officials.
This office has previously opined that "the term
'imprisonment' includes not only actual incarceration in jail,
but may refer to any situation in which the defendant's
liberty is restrained and he or she is subject to additional
sanctions should an escape be made." Attorney General
Opinions No. 83-123, 84-9. See also State v.
Pritchett, 222 Kan. 719, 720 (1977). Therefore, it is
our opinion that the mandatory imprisonment required by K.S.A.
1990 Supp. 8-1567, as amended, for second convictions of DUI
may be partially served in a restrained environment such as
KCWIP as long as the offender remains under the custody and

Julene L. Miller
Deputy Attorney General
control of law enforcement official throughout the time the
minimum sentence is being served.
Very truly yours,
--,
ROBERT T. STEPHA NAttorneyGeneralofKansas
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