WHAT IS A DUI DIVERSION?
A DUI diversion is a method of resolving an outstanding DUI charge. Like most resolutions, it has positives and negatives for the person accused of a DUI. A diversion is not for everyone and not everyone will be offered a diversion. A diversion is an agreement between the person that is being prosecuted for driving under the influence and the city or state that is prosecuting them for the violation. Like any agreement, each party is giving up something or forgoing some benefit at the request of the other party. In the DUI diversion context, the accused party will be asked to waive some of their rights and perform certain tasks in exchange for a dismissal of the DUI case against them.
In a typical diversion contract the defendant will agree to do the following:
Waive their right to trial by jury.
Waive their right to confront witnesses.
Waive their right to speedy trial.
Agree or stipulate to the facts as alleged in the police report.
Agree of stipulate to jurisdiction.
Obtain an alcohol and drug evaluation.
Comply with any recommendations of the drug and alcohol evaluation.
Pay a diversion fee of at least $750.
Abstain from Drug and alcohol use for 12 months.
Abstain from violating the laws of any city, state, or the United States.
Submit to a blood, breath or urine test at any time during the diversion term.
Agree to be monitored by a diversion monitor (including monthly meetings)
Agree to notify the court of any change in address in the next 12 months.
Attend a DUI Victim impact panel.
You must agree to inform your diversion officer within 72 hours of any arrest or interaction with law enforcement during the diversionary period.
In a typical diversion contract the city or state agrees to:
The city or state will agree to continue the case for 12 months.
If all requirements are met by the defendant in that 12 months, the city or state will dismiss the DUI charge and will not refile it.
What are the Problems with DUI Diversion?
As you can see a diversion of a DUI charge requires a lot from the person that seeks to enter into one. If a defendant doesn’t take the diversion contract very seriously it usually doesn’t work out and the defendant ends up losing the diversion.
It’s not available to everyone. A diversion is a once in a lifetime agreement. If you’ve done one in the past you are not going to allowed to do on in the future. Even if you are a first time offender you still might not be able to enter into a diversion agreement with the city or state. It is completely up to the City or State that is prosecuting you to determine if they want to offer you a diversion. Some jurisdictions won’t allow you to do a diversion if you were involved in an accident, if the DUI was based on drugs, if you have some other criminal history, et. cetra.
You have to waive many of your rights. A prerequisite to signing the diversion agreement will be that you waive your rights to a jury trial, a speedy trial and to confront witnesses. These three rights are very important. If you waive these rights and then make a mistake on diversion, it will be very difficult, if not impossible, to prevail at a trial.
You have to stipulate or agree to the police reports. This should be pretty self-explanatory. If you agree or stipulate to the police reports in your case, you are severely handicapping yourself if you ever have to take the case to trial. It will be nearly impossible for you to prevail at trial if you have already agreed that you committed the DUI offense.
Diversion can be misleading. Diversion is often presented to defendants as a way to “Keep the DUI off your record.” That is not entirely accurate. When you enter into a diversion agreement and successfully complete it, you are keeping the DUI off your record as a conviction. There is an important difference between doing a diversion and taking the case to trial and getting it dismissed. If you do the diversion, any DUI you receive in Kansas after the diversion will be a second time DUI. The DUI diversion will count to elevate the level of any future DUI you receive. Also, a DUI diversion will still be reported to the Kansas Bureau of Investigation and will go on your criminal record, but, as a diversion and not a conviction. Furthermore, the DUI may still be reflected on your driving record if you do not prevail at your administrative hearing.
Diversion is tough. A diversion agreement requires you to do many things, some of which are very difficult. By far and away the most difficult thing for most people to do is abstain from drugs and alcohol for the 12 month period they are required to. Remember you are subject to random tests. If you fail a test, the city or state will try to take the diversion away from you. For the entire 12 months you have to remember that you are subject to all the rules of the diversion and any mistake will cause you to lose it.
Diversion can be expensive. Most cities or counties will require that a defendant pay their diversion fee upfront. It is rare for a jurisdiction to allow you to make payments on the diversion cost. Also, if you end up losing your diversion due to a violation, many jurisdictions will not give you credit for diversion fees that you have already paid.
Diversion doesn’t completely keep your record clean. Most cities and counties will report the diversion agreement to the Kansas Bureau of Investigation, the repository for all criminal records in Kansas. If you want to completely get that record removed, you still have to wait the proscribed period of time (5 years) before you can completely expunge the record.
What are some Advantages of DUI diversion?
Diversion can be the best option to resolve a DUI charge. Depending on a defendant’s particular set of facts, their motivation and their ability to complete the diversion successfully can be a very good option for a defendant.
It is a known outcome. Diversion can be the “safe play.” Sometimes when charged with a crime, the anticipation and uncertainty can be the most difficult thing for a defendant to overcome. If a defendant is looking at taking a case to trial there is uncertainty. If you take a case to trial you either win or you lose, you either get punished or you don’t. To most people that uncertainty is unwanted. If you do a diversion, the outcome is a known outcome and is able to be controlled by your actions.
You stay out of jail. Every single DUI, even a first-time DUI, calls for jail time if convicted. If you successfully complete diversion, you are never sentenced on the case so you never have to spend anytime in jail.
You will not have a conviction on your record. This can be very important when you are seeking employment, a place to live or trying to get into a school. If you enter into a diversion agreement and complete it successfully, you can honestly answer “NO,” when an employer asks you if you have ever been convicted of a crime.
You won’t lose your license in the criminal case. To be clear, if you do a diversion it is not a guarantee that you won’t lose your license administratively. You can still lose your license on the administrative side. However, if you are able to win your administrative case and then do a diversion on the criminal case, you will not lose your license at all.