House Substitute for SENATE BILL No. 318
AN ACT concerning crimes, punishment and criminal procedure; relating to presumptions;
modifying the rules of evidence to provide rules for presumptions and inferences;
replacing the rebuttable presumption of intent to distribute controlled substances with
a permissive inference; amending K.S.A. 21-5705 and 60-416 and repealing the
existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 21-5705 is hereby amended to read as follows:
21-5705. (a) It shall be unlawful for any person to distribute or possess
with the intent to distribute any of the following controlled substances
or controlled substance analogs thereof:
(1) Opiates, opium or narcotic drugs, or any stimulant designated
in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65-4107(d)(1), (d)(3) or
(f)(1), and amendments thereto;
(2) any depressant designated in subsection (e) of K.S.A. 65-
4105(e), subsection (e) of K.S.A. 65-4107(e), subsection (b) or (c) of
K.S.A. 65-4109(b) or (c) or subsection (b) of K.S.A. 65-4111(b), and
amendments thereto;
(3) any stimulant designated in subsection (f) of K.S.A. 65-
4105(f), subsection (d)(2), (d)(4), (d)(5) or (f)(2) of K.S.A. 65-4107(d)
(2), (d)(4), (d)(5) or (f)(2) or subsection (e) of K.S.A. 65-4109(e), and
amendments thereto;
(4) any hallucinogenic drug designated in subsection (d) of K.S.A.
65-4105(d), subsection (g) of K.S.A. 65-4107(g) or subsection (g) of
K.S.A. 65-4109(g), and amendments thereto;
(5) any substance designated in subsection (g) of K.S.A. 65-
4105(g) and subsection (c), (d), (e), (f) or (g) of K.S.A. or 65-4111(c),
(d), (e), (f) or (g), and amendments thereto;
(6) any anabolic steroids as defined in subsection (f) of K.S.A. 65-
4109(f), and amendments thereto; or
(7) any substance designated in subsection (h) of K.S.A. 65-
4105(h), and amendments thereto.
(b) It shall be unlawful for any person to distribute or possess with
the intent to distribute a controlled substance or a controlled substance
analog designated in K.S.A. 65-4113, and amendments thereto.
(c) It shall be unlawful for any person to cultivate any controlled
substance or controlled substance analog listed in subsection (a).
(d) (1) Except as provided further, violation of subsection (a) is a:
(A) Drug severity level 4 felony if the quantity of the material was
less than 3.5 grams;
(B) drug severity level 3 felony if the quantity of the material was
at least 3.5 grams but less than 100 grams;
(C) drug severity level 2 felony if the quantity of the material was
at least 100 grams but less than 1 kilogram; and
(D) drug severity level 1 felony if the quantity of the material was
1 kilogram or more.
(2) Violation of subsection (a) with respect to material containing
any quantity of marijuana, or an analog thereof, is a:
(A) Drug severity level 4 felony if the quantity of the material was
less than 25 grams;
(B) drug severity level 3 felony if the quantity of the material was
at least 25 grams but less than 450 grams;
(C) drug severity level 2 felony if the quantity of the material was
at least 450 grams but less than 30 kilograms; and
(D) drug severity level 1 felony if the quantity of the material was
30 kilograms or more.
(3) Violation of subsection (a) with respect to material containing
any quantity of heroin, as defined by subsection (c)(1) of K.S.A. 65-
4105(c)(12), and amendments thereto, or methamphetamine, as defined
by subsection (d)(3) or (f)(1) of K.S.A. 65-4107(d)(3) or (f)(1), and
amendments thereto, or an analog thereof, is a: House Substitute for SENATE BILL No. 318—page 2
(A) Drug severity level 4 felony if the quantity of the material was
less than 1 gram;
(B) drug severity level 3 felony if the quantity of the material was
at least 1 gram but less than 3.5 grams;
(C) drug severity level 2 felony if the quantity of the material was
at least 3.5 grams but less than 100 grams; and
(D) drug severity level 1 felony if the quantity of the material was
100 grams or more.
(4) Violation of subsection (a) with respect to material containing
any quantity of a controlled substance designated in K.S.A. 65-4105,
65-4107, 65-4109 or 65-4111, and amendments thereto, or an analog
thereof, distributed by dosage unit, is a:
(A) Drug severity level 4 felony if the number of dosage units was
fewer than 10;
(B) drug severity level 3 felony if the number of dosage units was
at least 10 but less than 100;
(C) drug severity level 2 felony if the number of dosage units was
at least 100 but less than 1,000; and
(D) drug severity level 1 felony if the number of dosage units was
1,000 or more.
(5) For any violation of subsection (a), the severity level of the
offense shall be increased one level if the controlled substance or
controlled substance analog was distributed or possessed with the intent
to distribute on or within 1,000 feet of any school property.
(6) Violation of subsection (b) is a:
(A) Class A person misdemeanor, except as provided in subsection
(d)(6)(B); and
(B) nondrug severity level 7, person felony if the substance was
distributed to or possessed with the intent to distribute to a minor.
(7) Violation of subsection (c) is a:
(A) Drug severity level 3 felony if the number of plants cultivated
was more than 4 but fewer than 50;
(B) drug severity level 2 felony if the number of plants cultivated
was at least 50 but fewer than 100; and
(C) drug severity level 1 felony if the number of plants cultivated
was 100 or more.
(e) In any prosecution under this section, there shall be a
rebuttable presumption an inference of an intent to distribute if any
such an inference is supported by the facts and such person possesses
the following quantities of controlled substances or analogs thereof:
(1) 450 grams or more of marijuana;
(2) 3.5 grams or more of heroin or methamphetamine;
(3) 100 dosage units or more containing a controlled substance; or
(4) 100 grams or more of any other controlled substance.
(f) It shall not be a defense to charges arising under this section
that the defendant:
(1) Was acting in an agency relationship on behalf of any other
party in a transaction involving a controlled substance or controlled
substance analog;
(2) did not know the quantity of the controlled substance or
controlled substance analog; or
(3) did not know the specific controlled substance or controlled
substance analog contained in the material that was distributed or
possessed with the intent to distribute.
(g) As used in this section:
(1) "Material" means the total amount of any substance, including
a compound or a mixture, which contains any quantity of a controlled
substance or controlled substance analog.
(2) "Dosage unit" means a controlled substance or controlled House Substitute for SENATE BILL No. 318—page 3
substance analog distributed or possessed with the intent to distribute as
a discrete unit, including but not limited to, one pill, one capsule or one
microdot, and not distributed by weight.
(A) For steroids, or controlled substances in liquid solution legally
manufactured for prescription use, or an analog thereof, "dosage unit"
means the smallest medically approved dosage unit, as determined by
the label, materials provided by the manufacturer, a prescribing
authority, licensed health care professional or other qualified health
authority.
(B) For illegally manufactured controlled substances in liquid
solution, or controlled substances in liquid products not intended for
ingestion by human beings, or an analog thereof, "dosage unit" means
10 milligrams, including the liquid carrier medium, except as provided
in subsection (g)(2)(C).
(C) For lysergic acid diethylamide (LSD) in liquid form, or an
analog thereof, a dosage unit is defined as 0.4 milligrams, including the
liquid medium.
Sec. 2. K.S.A. 60-416 is hereby amended to read as follows: 60-
416. (a) A presumption, which by a rule of law may be overcome only
by proof beyond a reasonable doubt, or by clear and convincing
evidence, shall not be affected by K.S.A. 60-414 or 60-415, and
amendments thereto, and the burden of proof to overcome it continues
on the party against whom the presumption operates.
(b) (1) In a criminal case, any presumption or inference against
the defendant created by statute or common law, including, but not
limited to, a presumption or inference that certain facts are prima facie
evidence of another fact or of guilt, is permissive. The trier of fact may
accept or reject the presumption or inference in each case, and the
judge shall not direct the jury to find a fact against the defendant. The
judge may instruct the jury on the presumption or inference only if the
presumption or inference is supported by the facts.
(2) When the judge instructs the jury on a presumption or
inference against the defendant, the judge shall instruct the jury that:
(A) The jury may consider the presumption or inference along
with all other evidence in the case;
(B) the jury may accept or reject the presumption or inference in
determining whether the prosecution has met the burden of proof; and
(C) the burden of proof never shifts to the defendant.
Sec. 3. K.S.A. 21-5705 and 60-416 are hereby repealed. House Substitute for SENATE BILL No. 318—page 4
Sec. 4. This act shall take effect and be in force from and after its
publication in the statute book.
I hereby certify that the above BILL originated in the
SENATE, and passed that body
__________________________
SENATE concurred in
HOUSE amendments _______________________
_________________________
President of the Senate.
_________________________
Secretary of the Senate.
Passed the HOUSE
as amended _________________________
_________________________
Speaker of the House.
_________________________
Chief Clerk of the House.
APPROVED _____________________________
_________________________
Governor.