When an individual is charged with his or her first DUI, the state (or city) may offer the individual a diversion agreement in lieu of pursuing the case in court. These diversion agreements require a defendant to complete specific tasks, such as substance abuse treatment, for a brief period of time. Upon completion of such a diversion agreement, the state simply dismisses the DUI charge rather than accepting a plea or seeking a conviction. Largely, diversions are not treated as plea bargaining and are not considered judgments or agreements of criminal guilt—they are not treated like convictions. But what is the effect of a DUI diversion on the classification of a new DUI charge? Section 8-1567 classifies DUIs based upon previous DUI convictions. The classification of the DUI charge will determine how long the defendant’s sentence is and how much he or she is fined. Below is a brief overview of how diversion agreements work in determining the classification of a DUI.

Effect Of Diversion On New DUIIn contrast to how diversions are generally treated by the law, they are considered equivalent to convictions under Section 8-1567. Thus, a diversion will be treated as a first conviction when the individual is found guilty of a second DUI. Despite the rather drastic implications of this, Kansas courts have repeatedly decided challenges in favor of treating diversions as convictions under Section 8-1567. Thus, even when the diversion is granted to the individual as a minor, the court in State v. Bishop upheld treating the diversion as a conviction. So long as the diversion was granted after July 1, 2001, it still applies in determining the classification of the DUI regardless of the defendant’s age.

Diversions are also counted as convictions even when a defendant agrees to the diversion without first talking to an attorney. In State v. Youngblood, the Kansas Supreme Court decided that the Sixth Amendment’s guarantee of counsel did not have to be waived for a valid diversion agreement because a diversion is treated as a contract to avoid criminal prosecution, not part of the criminal prosecution itself. Thus, the right to consult (and the need to formerly waive the right) never attaches because the diversion is an agreement to delay and ultimately dismiss proceedings, rather than determine guilt. Applying this standard in State v. Tims, the Court determined that un-counseled diversions were to be treated as a conviction. This is true even though the non-criminal contract has very real and devastating criminal consequences under Section 8-1567 and even though the diversion relieved the state of proving the defendant’s guilt in the first DUI beyond a reasonable doubt.

Another issue that is frequently litigated regarding diversions is the retroactive application of Section 8-1567. Kansas formerly imposed a five-year period of looking at diversions. This meant that only a diversion occurring with five years of a new DUI charge would be treated as a conviction. In 2011, the Kansas Legislature removed this time limitation. Now, any diversion occurring after July 1, 2001 is treated as a conviction. But what about diversions entered between 2001 and the new law passed in 2011? The Kansas Supreme Court answered this question in State v. Reese. The defendant argued that by changing the law, the considerations of whether or not a diversion should be entered into had changed: the defendant no longer only had to worry about an enhanced sentence for five years, but now forever. The Court was unsympathetic to this view and held that the 2011 amendment was to be applied to sentences from the date it was passed forward. Cases with these issues become less and less frequent as time passes, but Reese provides strong insight on how the Court may treat another change to the statute in the future.

For all the benefits diversions are able to offer in other contexts, they are treated identically to a conviction when classifying subsequent DUIs. The Kansas Supreme Court has repeatedly decided issues involving the application and treatment of diversions under Section 8-1567 in the favor of the state. This means harsher treatment of individuals, whether convicted or having entered into a diversion agreement. This highlights the importance of contacting capable legal counsel: not only when this issue of classifying a later DUI comes up, but when a diversion is offered for a first DUI. The decision to trade the requirement of a conviction beyond a reasonable doubt for an easy disposal of a DUI can have devastating consequences later on and the Kansas courts seem unconcerned with adjusting these requirements in favor of individuals.

If you find yourself charged with a DUI in Johnson County, Overland Park, Lenexa, Merriam, Olathe, Fairway, Shawnee or any other city in Johnson County contact our office for a free consultation.