Printable Format22-2909. Diversion agreements; provisions; waiver of certain rights; stipulation of facts; stay of criminal proceedings; filing of agreements; supervision of defendant. (a) (1) A diversion agreement shall provide that if the defendant fulfills the obligations of the program described therein, as determined by the attorney general or county or district attorney, such attorney shall act to have the criminal charges against the defendant dismissed with prejudice. The diversion agreement shall include specifically the waiver of all rights under the law or the constitution of Kansas or of the United States to a speedy arraignment, preliminary examinations and hearings, and a speedy trial, and in the case of diversion under subsection (c) waiver of the rights to counsel and trial by jury. The diversion agreement may include, but is not limited to, provisions concerning:
(A) Payment of restitution, including court costs and diversion costs;
(B) residence in a specified facility;
(C) maintenance of gainful employment;
(D) participation in programs offering medical, educational, vocational, social and psychological services, corrective and preventive guidance and other rehabilitative services; and
(E) supervision by the county or district attorney, or by court services or community correctional services pursuant to a memorandum of understanding entered into by the county or district attorney pursuant to K.S.A. 22-2907, and amendments thereto, including the diversion supervision fee and urinalysis costs described in K.S.A. 22-2907, and amendments thereto, when applicable.
(2) If a county creates a local fund under the property crime restitution and compensation act, a county or district attorney may require in all diversion agreements as a condition of diversion the payment of a diversion fee in an amount not to exceed $100. Such fees shall be deposited into the local fund and disbursed pursuant to recommendations of the local board under the property crime restitution and victims compensation act.
(3) If the attorney general enters into a diversion agreement:
(A) Any diversion costs or fees collected pursuant to such agreement shall be deposited in the fraud and abuse criminal prosecution fund established by K.S.A. 75-765, and amendments thereto; and
(B) the attorney general may enter into agreements with the appropriate county or district attorney or other appropriate parties regarding the supervision of conditions of such diversion agreement.
(b) The diversion agreement shall state:
(1) The defendant's full name;
(2) the defendant's full name at the time the complaint was filed, if different from the defendant's current name;
(3) the defendant's sex, race and date of birth;
(4) the crime with which the defendant is charged;
(5) the date the complaint was filed; and
(6) the district court with which the agreement is filed.
(c) If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 8-1567, and amendments thereto, the diversion agreement shall include a stipulation, agreed to by the defendant, the defendant's attorney if the defendant is represented by an attorney and the attorney general or county or district attorney, of the facts upon which the charge is based and a provision that if the defendant fails to fulfill the terms of the specific diversion agreement and the criminal proceedings on the complaint are resumed, the proceedings, including any proceedings on appeal, shall be conducted on the record of the stipulation of facts relating to the complaint. In addition, the agreement shall include a requirement that the defendant:
(1) Pay a fine specified by the agreement in an amount equal to an amount authorized by K.S.A. 8-1567, and amendments thereto, for a first offense or, in lieu of payment of the fine, perform community service specified by the agreement, in accordance with K.S.A. 8-1567, and amendments thereto; and
(2) participate in an alcohol and drug evaluation conducted by a licensed provider pursuant to K.S.A. 8-1008, and amendments thereto, and follow any recommendation made by the provider after such evaluation.
(d) If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a domestic violence offense, as defined in K.S.A. 21-5111, and amendments thereto, the diversion agreement shall include a requirement that the defendant undergo a domestic violence offender assessment and follow all recommendations unless otherwise agreed to with the prosecutor in the diversion agreement. The defendant shall be required to pay for such assessment and, unless otherwise agreed to with the prosecutor in the diversion agreement, for completion of all recommendations.
(e) If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a violation other than K.S.A. 8-1567, and amendments thereto, the diversion agreement may include a stipulation, agreed to by the defendant, the defendant's attorney if the defendant is represented by an attorney and the attorney general or county or district attorney, of the facts upon which the charge is based and a provision that if the defendant fails to fulfill the terms of the specific diversion agreement and the criminal proceedings on the complaint are resumed, the proceedings, including any proceedings on appeal, shall be conducted on the record of the stipulation of facts relating to the complaint.
(f) If the person entering into a diversion agreement is a nonresident, the attorney general or county or district attorney shall transmit a copy of the diversion agreement to the division. The division shall forward a copy of the diversion agreement to the motor vehicle administrator of the person's state of residence.
(g) If the attorney general or county or district attorney elects to offer diversion in lieu of further criminal proceedings on the complaint and the defendant agrees to all of the terms of the proposed agreement, the diversion agreement shall be filed with the district court and the district court shall stay further proceedings on the complaint. If the defendant declines to accept diversion, the district court shall resume the criminal proceedings on the complaint.
(h) Except as provided in subsection (i), if a diversion agreement is entered into in lieu of further criminal proceedings alleging commission of a misdemeanor by the defendant, while under 21 years of age, under K.S.A. 21-5701 through 21-5717, and amendments thereto, or K.S.A. 41-719, 41-727, 41-804, 41-2719 or 41-2720, and amendments thereto, the agreement shall require the defendant to participate in an alcohol and drug evaluation conducted by a licensed provider pursuant to K.S.A. 8-1008, and amendments thereto, and follow any recommendation made by the provider after such evaluation.
(i) If the defendant is 18 or more years of age but less than 21 years of age and allegedly committed a violation of K.S.A. 41-727, and amendments thereto, involving cereal malt beverage, the provisions of subsection (h) are permissive and not mandatory.
(j) If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 21-6421, and amendments thereto, the agreement:
(1) Shall include a requirement that the defendant pay a fine specified by the agreement in an amount equal to an amount authorized by K.S.A. 21-6421, and amendments thereto; and
(2) may include a requirement that the defendant enter into and complete a suitable educational or treatment program regarding commercial sexual exploitation.
(k) Except diversion agreements reported under subsection (l), the attorney general or county or district attorney shall forward to the Kansas bureau of investigation a copy of the diversion agreement at the time such agreement is filed with the district court. The copy of the agreement shall be made available upon request to the attorney general or any county, district or city attorney or court.
(l) At the time of filing the diversion agreement with the district court, the attorney general or county or district attorney shall forward to the division of vehicles of the state department of revenue a copy of any diversion agreement entered into in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 8-1567, and amendments thereto. The copy of the agreement shall be made available upon request to the attorney general or any county, district or city attorney or court.
History: L. 1978, ch. 131, § 4; L. 1982, ch. 145, § 1; L. 1982, ch. 144, § 7; L. 1985, ch. 48, § 17; L. 1986, ch. 131, § 2; L. 1988, ch. 48, § 5; L. 1988, ch. 47, § 21; L. 1989, ch. 38, § 47; L. 1990, ch. 321, § 15; L. 1993, ch. 181, § 1; L. 2009, ch. 32, § 42; L. 2011, ch. 105, § 26; L. 2012, ch. 172, § 33; L. 2014, ch. 28, § 5; L. 2018, ch. 106, § 29; L. 2019, ch. 59, § 4; L. 2021, ch. 109, § 7; July 1.
Revisor's Note:
Section was amended multiple times in 1985 session, see 22-2909a.
Section was amended multiple times in 1989 session, see also 22-2909b.
Section was also amended by L. 2011, ch. 30, § 122, but that version was repealed by L. 2011, ch. 91, § 41.
Law Review and Bar Journal References:
"Kansas Diversion: Defendant's Remedies and Prosecutorial Opportunities," Joseph Brian Cox, 20 W.L.J. 344, 346, 361 (1981).
"The New Kansas DUI Law: Constitutional Issues and Practical Problems," Gerard Little, Jr., 22 W.L.J. 340, 357 (1983).
"The New Kansas Drunk Driving Law: A Closer Look," Matthew D. Keenan, 31 K.L.R. 409, 416, 417 (1983).
"Kansas Diversion: Will Courts Become More Involved?" Michael Kaye, 56 J.K.B.A., No. 1, 8 (1986).
Attorney General's Opinions:
Procedure after arrest; diversion from prosecution. 81-198.
Serious traffic offenses; driving while under influence of alcohol. 83-8.
Procedure after arrest; diversion; imposition of diversion costs. 84-15.
Cereal malt beverages; qualifications for retailer's license; conviction of driving under influence of alcohol includes participation in diversion program. 84-21.
Diversion agreements involving restriction of driver's license. 85-1.
Provisions of diversion agreement; disposition of diversion fees. 89-105.
Diversion fee in county with a property crime compensation board. 90-128.
Diversion agreement; provision for contributions to nonprofit organization. 93-120.
Traffic speeding infractions; county diversion program; procedures; fees in excess of actual costs and/or donations to charity. 97-70.
CASE ANNOTATIONS
1. Subsection (c) cited as example of judgment from which defendant may appeal under K.S.A. 22-3609a. State v. Lashley, 233 Kan. 620, 624, 664 P.2d 1358 (1983).
2. Statute, being integral part of whole subject of act (L. 1982, ch. 144), not violative of Kansas Constitution, article 2, § 16. State v. Reves, 233 Kan. 972, 975, 980, 666 P.2d 1190 (1983).
3. Diversion agreement in prior DUI case (K.S.A. 8-1567) considered conviction for sentence enhancement. State v. Clevenger, 235 Kan. 864, 867, 683 P.2d 1272 (1984).
4. Cited; entering into diversion agreement in lieu of criminal proceedings considered conviction for DUI sentence enhancement (K.S.A. 8-1567(i)). State v. Booze, 238 Kan. 551, 555, 558, 712 P.2d 1253 (1986).
5. Diversion agreement removes case from trial docket; until such time as proceedings resumed, defendant has no obligation to appear. State v. Chappell, 11 Kan. App. 2d 546, 549, 729 P.2d 1241 (1986).
6. Cited; use of uncounseled diversion agreement without waiver of counsel cannot be used to enhance subsequent DUI conviction sentence. State v. Priest, 239 Kan. 681, 682, 683, 722 P.2d 576 (1986).
7. Diversion costs not refundable to defendant who fails to complete probation. State v. Bullock, 18 Kan. App. 2d 164, 167, 849 P.2d 140 (1993).
8. Diversion agreements not prohibited from including clause providing for trial on stipulated facts in felony cases where agreement breached. In re Habeas Corpus Application of Tolle, 18 Kan. App. 2d 491, 498, 856 P.2d 944 (1993).
9. Whether codefendant placed on diversion is "similarly situated" with convicted codefendant for sentence disparity comparison examined. State v. Emerson, 20 Kan. App. 2d 40, 42, 882 P.2d 1009 (1994).
10. Driving under the influence diversion is not a countable diversionary disposition under federal sentencing guidelines. U.S. v. Stewart, 51 F. Supp. 2d 1147, 1169 (1999).
11. Requirement of section that diversion agreement contain specific waiver of certain rights is mandatory rather than directory. State v. Moses, 38 Kan. App. 2d 840 to 844, 173 P.3d 652 (2008).
12. District court properly denied the defendant's motion to suppress evidence where the diversion agreement specifically provided that upon revocation the case would proceed based solely upon stipulated facts. State v. Bannon, 45 Kan. App. 2d 1077, 257 P.3d 831 (2011).