Keep in mind the ABC can only act on collecting these taxes when our law enforcement agencies report the seizures to them. So if you agency is not already doing this, you should contact them to find out how to report your local illegal drug seizures to initiate the drug tax process.
Here is the response from the ABC on the State v. Hensley issue:
For distribution to all Kansas law enforcement agencies:
On December 6, 2013, the Kansas Supreme Court issued a decision in State v. Michael Rae Hensley, Case No. 102,055. This was an appeal of a criminal case from Saline County District Court involving several issues raised with regard to Mr. Hensley's conviction of drug charges. In the District Court trial, Mr. Hensley was convicted of both (1) possession of marijuana and (2) possession of marijuana with no tax stamp affixed. Mr. Hensley challenged that conviction as being in violation of the double jeopardy clauses of both the US and Kansas Constitutions and K.S.A. 21-3107 (now K.S.A. 21-5109), arguing that both charges arose from the same conduct.
Previously, the Kansas Supreme Court had ruled on this issue in State v. Berberich, 248 Kan. 854 (1991), finding that conviction of both violations arising from the same conduct was not a violation of the double jeopardy clause.
However, in this recent decision, the Kansas Supreme Court found that all of the elements of the crime of possession of marijuana are included in the crime of possession of marijuana with no tax stamp. Thus, one is a lesser included crime of the other and conviction of both arising from the same conduct is prohibited by K.S.A. 21-3107 (now K.S.A. 21-5109).
This Kansas Supreme Court decision affects only the criminal charges filed by district or county attorneys. It does not effect the assessment and collection of the Kansas drug tax, which is a civil tax proceeding carried out by the Kansas Department of Revenue pursuant to K.S.A. 79-5201 et seq.
D. Philip Wilkes, Staff Attorney
Kansas Department of Revenue
Docking State Office Building, Room 214
915 SW Harrison Street
Topeka, Kansas 66612-1588
Direct phone number: 785-368-6386
Facsimile number: 785-296-7185