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When a person is charged with their first DUI, the prosecutor’s office may offer them a diversion agreement in the place of trying the case in court. This diversion agreement will require the individual to successfully complete certain tasks for a set period of time. Upon the diversion agreement being completed, the prosecutor’s office dismisses the DUI charge rather than seeking a conviction or accepting a plea. Usually diversions are not treated as a conviction but K.S.A. 8-1567 does take a diversion into account when it classifies a new DUI. The DUI’s classification is important as it determines the defendant’s sentence. Below is a short summary of how a diversion agreement will affect a subsequent DUI classification.

Diversion Agreement’s Effect on New DUI

Under K.S.A. 8-1567 diversions are considered a conviction. Thus, if a person has a previous diversion and is facing another DUI charge, that new charge will be considered a second DUI. This has been upheld in Kansas courts numerous times. Even if a diversion was granted to a person when they were a minor, the court in State v. Bishop held that a diversion could be treated as a previous conviction. As long as the diversion was granted after July 1, 2001, it will apply in determining the classification of subsequent DUIs regardless of the individual’s age.

Even if a person doesn’t consult with an attorney before completing a diversion, it will still count as a conviction. As the court in State v. Youngblood held, the 6th Amendment right to counsel does not have to be waived for a valid diversion agreement as it is not part of the criminal prosecution, but rather a contract to avoid prosecution. Therefore, the right to counsel (and the need to formally waive this right) never attaches to the case because a diversion is a contract to delay and then dismiss the proceedings, instead of determining guilt. The Court in State v. Tims, held that un-counseled diversions are to be treated as convictions. This has been upheld even though this non-criminal contract can lead to strict criminal consequences under Section 8-1567 and even though the diversion released the prosecutor’s office from proving the individual’s guilty beyond a reasonable doubt.

Another diversion related litigation is the retroactive application of K.S.A. 8-1567. Kansas used to have a 5-year period when looking at diversions, which meant if the diversion was older than 5 years, it wouldn’t affect a new DUI charge. However, in 2011 the Kansas Legislature removed this time limitation and stated that any diversion which occurred after July 1, 2001 will be treated as a conviction. Now there is the question about what about those diversions between July 1, 2001 and 2011?? The court in State v. Reese answered that inquiry. The defendant argued that because the law changed, the considerations of whether or not to enter into a diversion, also changed as instead of only having to worry about an enhanced sentence for 5 years, the defendant has to worry about it for forever. The Court was not swayed by this argument and held that the 2011 amendment can be applied retroactively.

Although a diversion can offer many benefits in some contexts, when it comes to a subsequent DUI a diversion will be treated as a conviction. This has been upheld numerous times by the Kansas Supreme Court. This just reiterates how important it is to retain an attorney when facing a DUI charge. The decision to trade a conviction that requires beyond a reasonable doubt standard for an easy disposal via a diversion can lead to unavoidable consequences later on and the courts in Kansas seem to have little concern regarding individuals in this situation.

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