State v. Durrant
769 P.2d 1174
Kan.,1989.

State appealed from orders of the Shawnee District Court, Adrian J. Allen, J., and the Osage District Court, Donald L. White, J., which held that Act providing for taxation of marijuana and controlled substances was unconstitutional under the Fifth Amendment privilege against self- incrimination. Following consolidation of the appeals, the Supreme Court, Holmes, J., held that Kansas drug tax statutes provide for use and derivative use immunity which is coextensive with the privilege against self-incrimination provided by the Fifth Amendment, and, as so construed, is constitutional.
Reversed and remanded in part and appeal sustained in part.

**1175 *522 Syllabus by the Court

1. The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity and, before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. The burden of proof is on the party challenging the constitutionality of the statute.
2. While most of the reported cases involving the privilege against self- incrimination involve actual oral statements or testimony, it is clear that the Fifth Amendment protection applies to compelled written statements and forms as well as compelled oral testimony.
**1176 3. A tax may be imposed on an activity that is wholly or partially unlawful under state or federal statutes.
4. The Fifth Amendment privilege against self-incrimination may not properly be asserted if other protection is granted that is broad enough to provide the same scope and effect as the privilege itself.
5. For testimony, written or oral, to justify invocation of the Fifth Amendment privilege against self-incrimination, it must not only be compelled but must also be incriminating.
6. The Fifth Amendment protection against self-incrimination applies not only to the potential direct use of the compelled testimony but also applies if such testimony might reasonably lead to other incriminating evidence.
7. Testimony subject to the Fifth Amendment privilege against self- incrimination elicited as a result of a grant of immunity pursuant to state law may not be used in a subsequent federal prosecution.
8. *523 The ultimate test of whether a statute which contains a grant of immunity violates the Fifth Amendment privilege against self-incrimination is whether the grant of immunity is so broad as to have the same extent in scope and effect as the privilege itself.
9. For a statutory grant of immunity to be coextensive with the privilege against self-incrimination, it must grant not only use immunity, or protection from the direct use of compelled incriminating information, but also derivative-use immunity, which prohibits use of any such information for investigatory purposes leading to other evidence of criminal activity.
10. An appellate court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. To accomplish this purpose the court may read the necessary judicial requirements into the statute.
11. The legislature, by its enactment of K.S.A. 1988 Supp. 79-5206 as a part of the marijuana and controlled substances tax act, intended to extend not only use immunity but also derivative-use immunity to any person complying with the act.
12. All information obtained through compliance with K.S.A.1988 Supp. 79-5201 et seq. is confidential and may not be used as evidence in the prosecution for any crimes other than enforcement of the act itself. Any evidence obtained through the use of such confidential information is likewise confidential and inadmissible in the prosecution of any criminal offense, other than for the enforcement of the act itself.
13. K.S.A.1988 Supp. 79-5201 et seq., as construed in the opinion, does not violate the Fifth Amendment privilege against self-incrimination and therefore is not unconstitutional on such grounds.