This is a way to resolve a DUI charge. It has both positive and negatives for the individual charged with a DUI. Not everyone will be eligible for a diversion, nor will a diversion suit everyone. A diversion is an agreement between the prosecuting attorney’s office and the defendant. This agreement will have each party giving something up at the other party’s request. For a DUI diversion, the person will be asked to waive a few of their rights and perform additional tasks in exchange for the DUI case being dismissed against them.
A typical diversion agreement will have the defendant agreeing to do the following:
Waive their right to trial by jury.
Waive their right to confront witnesses.
Waive their right to speedy trial.
Agree/stipulate to the facts as alleged in the police report.
Agree/stipulate to jurisdiction.
Get a drug and alcohol evaluation.
Follow any recommendations of the drug and alcohol evaluation.
Pay a diversion fee of at least $750.
Do not use drug and alcohols for 12 months.
Do not violate the laws of any city, state, or the United States.
In a typical diversion agreement, the prosecuting agency will agree to:
The prosecuting agency will continue the case for 12 months.
If the defendant meets all requirements within that 12 months, the prosecuting agency will dismiss the DUI charge and not refile it.
What are the problems with a DUI diversion?
As you can tell, a diversion agreement for a DUI charge can require a lot from an individual who wants to enter into one. If you do not take it very seriously, you can fail and then end up losing the diversion.
Here are the problems with diversion:
Not everyone is eligible for it
Diversion is a once in a lifetime agreement. If you have previously done a diversion, you will not be permitted to do another. Sometimes even a first time offender will not be allowed to do a diversion. Who is eligible for a diversion is completely up to the prosecuting attorney. Some common examples that render someone ineligible are; there was an accident, the DUI was for drug usage, extensive criminal history, etc.
2. You have to waive a lot of your rights.
A requirement to sign a diversion agreement is that an individual will agree to waive their rights to a jury trial, a speedy trial, and to confront witnesses. Those are three very important rights. If these rights are waived and then a mistake is made on diversion, it will be extremely difficult if not impossible to win at trial.
3. You have to stipulate/agree to the facts in a police report.
This is self-explanatory. By stipulating or agreeing to your case’s police reports, you are extremely handicapping yourself if you do take your case to trial. It is very improbable that you will win at trial if you have previously agreed to the facts of your DUI case.
4. It can be misleading.
Often a diversion is presented as “keep the DUI off your record.” This is not entirely true. If you successfully complete a diversion, you will keep the diversion off your record as conviction. There is a big difference between doing a diversion and taking your case to trial, winning, and having your case dismissed. If you do a diversion and then get another DUI in Kansas, it will be charged as second time DUI. The DUI you completed a diversion on will still elevate any subsequent DUI you get. Further, a diversion is till reported to the KBI and will be on your criminal record, but as “diversion” and not a “conviction”. Additionally, the DUI could still be shown on your driving record if you didn’t win your administrative hearing.
5. Diversion is hard.
This agreement will mandate you do many things, including some which are difficult. Without a doubt, the hardest things for people to do is to refrain from drinking and going drugs for the diversionary period. Remember, diversion participants are susceptible to random drug tests. The prosecutor’s office can revoke your diversion if you fail a drug test. Diversion participants are subject to all of the diversion rules for the entire 12 month period, any mistake can lead to it being revoked.
6. It can cost a lot of money.
Usually, this diversion fee is due at signing. It is rare for a jurisdiction to permit a payment plan on a diversion. Further, if you end up being revoked from your diversion, most jurisdictions will not give you credit for the fees previously paid.
7. It doesn’t keep your record completely clean
Diversion agreements still get reported to the KBI. If you want it completely off of your record, you will need to wait the statutory time period of 5 years before you can file a petition to expunge your record.
Some Advantages of a DUI diversion?
8. It is a known outcome.
Diversion is sometimes called the “safe play.” Sometimes the hardest thing defendant can overcome is the uncertainty and anticipation that comes along with being charged with a crime. Taking a case to trial creates uncertainty as you will either win or you lose, i.e. you get punished or you don’t. To most individuals this uncertainty is undesired. Doing a diversion allows for your actions to control the outcome which is a known outcome.
9. No jail time.
Even a first time DUI has mandatory jail time if an individual is convicted. If a diversion is successfully completed, the individual is never sentenced on the case and never spends any time in jail.
10. No conviction on your record.
This can be important when trying to find a job, housing, or schooling. If you successfully complete a diversion, when an employer asks if you have any crime convictions, you can truthfully answer “NO”.
11. Won’t lose your license in the criminal case.
To clarify, a diversion doesn’t guarantee an individual won’t lose their driver’s license as they can still lose it on the administrative side. However, if they win their administrative hearing and do a diversion for the criminal side, they will not lose their license.