Kan. Admin. Regs. § 44-9-105

Current through Register Vol. 43, No. 24, June 13, 2024

Section 44-9-105 - Preliminary hearing for alleged violators

Alleged parole violators, conditional release violators, postrelease supervision violators, and house arrest condition violators shall be afforded a hearing to determine if there has been any violation of any conditions of supervision, unless the releasee knowingly and voluntarily waives the hearing. The requirements for the hearing shall be as follows:

(a) The releasee shall be informed of the charges in writing with sufficient particularity and sufficient time in advance of the hearing to prepare a defense. The hearing shall be held within three to 14 days after service of the notice of charges, subject to authorized continuances. If evidence of any new violation of conditions of supervision is discovered after service of the original notice of charges upon the offender but before the hearing and a determination is then made that the releasee should be so charged, notice of any additional charge of violation shall be given to the releasee in the same manner as that for the original statement of charges. The hearing shall be continued for an appropriate interval if the releasee receives notice of any additional charge of violation less than three days before the original hearing date, unless the releasee waives advance service of the notice of amended charges.

(b) The purpose of the hearing shall be to determine whether probable cause exists to believe that a condition of supervision has been violated. The hearing shall be held before a party not involved in the case. Pending the hearing, the releasee shall remain incarcerated.

(c) If evidence of any new violation of conditions of supervision not yet charged is produced or placed on the record during the hearing, other than a new violation based solely upon a voluntary admission by the offender during the hearing, and it is determined by the hearing officer that the new charge should be added to the statement of charges for consideration, then a recess shall be declared by the hearing officer and a statement of any additional charge of violation of conditions of supervision shall be served upon the releasee in the same manner as that for the original statement of charges. The recess shall be for an appropriate interval of at least three days to permit the releasee to prepare a defense to any such additional charge, unless the releasee waives the three-day period and agrees to proceed with a hearing of the additional charge or charges within a shorter time period. Pending resumption of the hearing, the releasee shall remain incarcerated.

(d) The hearing shall be held at or reasonably near to the site of the arrest or commission of the alleged violation. The hearing may be held at a correctional facility.

(e) The releasee shall be entitled to call witnesses to appear on the releasee's behalf at the hearing.

(1) The hearing officer may restrict the witnesses to those who can testify to the facts relevant to the occurrence of the alleged violation. Character reference witnesses may be excluded.

(2) Witnesses may testify by telephone if the releasee is able to hear the testimony of the witness contemporaneously with the hearing officer.

(f) The releasee shall have the right to be made aware of adverse evidence. The releasee shall be allowed to cross-examine adverse witnesses unless the hearing officer decides that the witness could be physically harmed if the witness's identity is revealed.

(g) The hearing officer shall issue a written decision indicating whether or not there is probable cause to hold the releasee on each charge of violation of a condition of release and also indicating the evidence relied upon for each finding of probable cause. If a finding of probable cause is made on the basis of a voluntary admission by the releasee of any new violation during the hearing, then the hearing officer shall cause an amended statement of charges of condition violations reflecting the new condition violation or violations to be added to the record. The hearing officer shall then refer the case record to the board for a final revocation hearing, but a charge of violation of a condition of supervision shall not be referred to the board unless a finding of probable cause for that violation is included in the case record. The releasee shall be given a written statement of the basis for the decision and, if applicable, an amended statement of charges of condition violations.

(h) If the releasee had not previously been returned to a correctional facility, upon finding of probable cause, the releasee shall be returned to a correctional facility designated by the secretary of corrections pending a final revocation hearing by the board.

Kan. Admin. Regs. § 44-9-105

Authorized by K.S.A. 2011 Supp. 21-6609, as amended by L. 2011, ch. 130, §§ 2 and 3, K.S.A. 2011 Supp. 75-5210, K.S.A. 2011 Supp. 75-5217; implementing K.S.A. 2011 Supp. 22-3717, as amended by L. 2011, ch. 130, §§ 2 and 3, K.S.A. 75-5216, K.S.A. 2011 Supp. 75-5217; effective May 1, 1980; amended July 11, 1994; amended March 23, 2012.