Session of 1999
HOUSE BILL No. 2267
By Representative Swenson
2-4
9 AN ACT relating to criminal procedure; concerning diversion agree-
10 ments; amending K.S.A. 12-4416 and 22-2909 and repealing the ex-
11 isting sections.
12
13 Be it enacted by the Legislature of the State of Kansas:
14 New Section 1. The superintendent of the Kansas highway patrol is
15 hereby authorized to adopt rules and regulations for the purpose of es-
16 tablishing criteria for the certification of driver improvement programs
17 under subsection (c) of K.S.A. 12-4416, and amendments thereto, or sub-
18 section (i) of K.S.A. 22-2909, and amendments thereto.
19 Sec. 2. K.S.A. 12-4416 is hereby amended to read as follows: 12-
20 4416. (a) A diversion agreement shall provide that if the defendant fulfills
21 the obligations of the program described therein, as determined by the
22 city attorney, the city attorney shall act to have the criminal charges
23 against the defendant dismissed with prejudice. The diversion agreement
24 shall include specifically the waiver of all rights under the law or the
25 constitution of Kansas or of the United States to counsel, a speedy ar-
26 raignment, a speedy trial, and the right to trial by jury. The diversion
27 agreement may include, but is not limited to, provisions concerning pay-
28 ment of restitution, including court costs and diversion costs, residence
29 in a specified facility, maintenance of gainful employment, and partici-
30 pation in programs offering medical, educational, vocational, social and
31 psychological services, corrective and preventive guidance and other re-
32 habilitative services. The diversion agreement shall state:
33 (1) The defendant's full name;
34 (2) the defendant's full name at the time the complaint was filed, if
35 different from the defendant's current name;
36 (3) the defendant's sex, race and date of birth;
37 (4) the crime with which the defendant is charged;
38 (5) the date the complaint was filed; and
39 (6) the municipal court with which the agreement is filed.
40 (b) If a diversion agreement is entered into in lieu of further criminal
41 proceedings on a complaint alleging an alcohol related offense, the di-
42 version agreement shall include a stipulation, agreed to by the defendant
43 and the city attorney, of the facts upon which the charge is based and a
44 provision that if the defendant fails to fulfill the terms of the specific
45 diversion agreement and the criminal proceedings on the complaint are
46 resumed, the proceedings, including any proceedings on appeal, shall be
47 conducted on the record of the stipulation of facts relating to the com-
48 plaint. In addition, the agreement shall include a requirement that the
49 defendant:
50 (1) Pay a fine specified by the agreement in an amount equal to an
51 amount authorized by K.S.A. 8-1567, and amendments thereto, for a first
52 offense or, in lieu of payment of the fine, perform community service
53 specified by the agreement, consonant with K.S.A. 8-1567, and amend-
54 ments thereto; and
55 (2) enroll in and successfully complete an alcohol and drug safety
56 action program or a treatment program, or both, as provided in K.S.A. 8-
57 1008, and amendments thereto, and specified by the agreement, and pay
58 the assessment required by K.S.A. 8-1008, and amendments thereto.
59 (c) In addition to any other requirements, a diversion agreement en-
60 tered into in lieu of further criminal proceedings on a complaint alleging
61 an ordinance traffic violation, shall include a requirement that the de-
62 fendant enroll in and successfully complete a driver improvement pro-
63 gram certified under the provisions of section 1.
64 (c) (d) If the person entering into a diversion agreement is a nonres-
65 ident, the city attorney shall transmit a copy of the diversion agreement
66 to the division. The division shall forward a copy of the diversion agree-
67 ment to the motor vehicle administrator of the person's state of residence.
68 (d) (e) If the city attorney elects to offer diversion in lieu of further
69 criminal proceedings on the complaint and the defendant agrees to all of
70 the terms of the proposed agreement, the diversion agreement shall be
71 filed with the municipal court and the municipal court shall stay further
72 proceedings on the complaint. If the defendant declines to accept diver-
73 sion, the municipal court shall resume the criminal proceedings on the
74 complaint.
75 (e) (f) The city attorney shall forward to the division of vehicles of
76 the state department of revenue a copy of the diversion agreement at the
77 time such agreement is filed with the municipal court. The copy of the
78 agreement shall be made available upon request to any county, district
79 or city attorney or court.
80 Sec. 3. K.S.A. 22-2909 is hereby amended to read as follows: 22-
81 2909. (a) A diversion agreement shall provide that if the defendant fulfills
82 the obligations of the program described therein, as determined by the
83 attorney general or county or district attorney, such attorney shall act to
84 have the criminal charges against the defendant dismissed with prejudice.
85 The diversion agreement shall include specifically the waiver of all rights
86 under the law or the constitution of Kansas or of the United States to a
87 speedy arraignment, preliminary examinations and hearings, and a speedy
88 trial, and in the case of diversion under subsection (c) waiver of the rights
89 to counsel and trial by jury. The diversion agreement may include, but is
90 not limited to, provisions concerning payment of restitution, including
91 court costs and diversion costs, residence in a specified facility, mainte-
92 nance of gainful employment, and participation in programs offering
93 medical, educational, vocational, social and psychological services, cor-
94 rective and preventive guidance and other rehabilitative services. If a
95 county creates a local fund under the property crime restitution and com-
96 pensation act, a county or district attorney may require in all diversion
97 agreements as a condition of diversion the payment of a diversion fee in
98 an amount not to exceed $100. Such fees shall be deposited into the local
99 fund and disbursed pursuant to recommendations of the local board un-
100 der the property crime restitution and victims compensation act.
101 (b) The diversion agreement shall state: (1) The defendant's full
102 name; (2) the defendant's full name at the time the complaint was filed,
103 if different from the defendant's current name; (3) the defendant's sex,
104 race and date of birth; (4) the crime with which the defendant is charged;
105 (5) the date the complaint was filed; and (6) the district court with which
106 the agreement is filed.
107 (c) If a diversion agreement is entered into in lieu of further criminal
108 proceedings on a complaint alleging a violation of K.S.A. 8-1567, and
109 amendments thereto, the diversion agreement shall include a stipulation,
110 agreed to by the defendant, the defendant's attorney if the defendant is
111 represented by an attorney and the attorney general or county or district
112 attorney, of the facts upon which the charge is based and a provision that
113 if the defendant fails to fulfill the terms of the specific diversion agree-
114 ment and the criminal proceedings on the complaint are resumed, the
115 proceedings, including any proceedings on appeal, shall be conducted on
116 the record of the stipulation of facts relating to the complaint. In addition,
117 the agreement shall include a requirement that the defendant:
118 (1) Pay a fine specified by the agreement in an amount equal to an
119 amount authorized by K.S.A. 8-1567, and amendments thereto, for a first
120 offense or, in lieu of payment of the fine, perform community service
121 specified by the agreement, in accordance with K.S.A. 8-1567, and
122 amendments thereto; and
123 (2) enroll in and successfully complete an alcohol and drug safety
124 action program or a treatment program, or both, as provided in K.S.A. 8-
125 1008, and amendments thereto, and specified by the agreement, and pay
126 the assessment required by K.S.A. 8-1008, and amendments thereto.
127 (d) If a diversion agreement is entered into in lieu of further criminal
128 proceedings on a complaint alleging a violation other than K.S.A. 8-1567
129 and amendments thereto, the diversion agreement may include a stipu-
130 lation, agreed to by the defendant, the defendant's attorney if the de-
131 fendant is represented by an attorney and the attorney general or county
132 or district attorney, of the facts upon which the charge is based and a
133 provision that if the defendant fails to fulfill the terms of the specific
134 diversion agreement and the criminal proceedings on the complaint are
135 resumed, the proceedings, including any proceedings on appeal, shall be
136 conducted on the record of the stipulation of facts relating to the
137 complaint.
138 (e) If the person entering into a diversion agreement is a nonresident,
139 the attorney general or county or district attorney shall transmit a copy
140 of the diversion agreement to the division. The division shall forward a
141 copy of the diversion agreement to the motor vehicle administrator of the
142 person's state of residence.
143 (f) If the attorney general or county or district attorney elects to offer
144 diversion in lieu of further criminal proceedings on the complaint and the
145 defendant agrees to all of the terms of the proposed agreement, the di-
146 version agreement shall be filed with the district court and the district
147 court shall stay further proceedings on the complaint. If the defendant
148 declines to accept diversion, the district court shall resume the criminal
149 proceedings on the complaint.
150 (g) Except as provided in subsection (h), if a diversion agreement is
151 entered into in lieu of further criminal proceedings alleging commission
152 of a misdemeanor by the defendant, while under 21 years of age, under
153 the uniform controlled substances act (K.S.A. 65-4101 et seq., and amend-
154 ments thereto) or K.S.A. 41-719, 41-727, 41-804, 41-2719, 41-2720, 65-
155 4152, 65-4153, 65-4154 or 65-4155, and amendments thereto, the agree-
156 ment shall require the defendant to submit to and complete an alcohol
157 and drug evaluation by a community-based alcohol and drug safety action
158 program certified pursuant to K.S.A. 8-1008, and amendments thereto,
159 and to pay a fee not to exceed the fee established by that statute for such
160 evaluation. If the attorney general or county or district attorney finds that
161 the defendant is indigent, the fee may be waived.
162 (h) If the defendant is 18 or more years of age but less than 21 years
163 of age and allegedly committed a violation of K.S.A. 41-727, and amend-
164 ments thereto, involving cereal malt beverage, the provisions of subsec-
165 tion (g) are permissive and not mandatory.
166 (i) In addition to any other requirements, a diversion agreement en-
167 tered into in lieu of further criminal proceedings on a complaint alleging
168 a violation of the uniform act regulating traffic on highways shall include
169 a requirement that the defendant enroll in and successfully complete a
170 driver improvement program certified under the provisions of section 1.
171
172 (i) (j) Except diversion agreements reported under subsection (j) (k),
173 the attorney general or county or district attorney shall forward to the
174 Kansas bureau of investigation a copy of the diversion agreement at the
175 time such agreement is filed with the district court. The copy of the
176 agreement shall be made available upon request to the attorney general
177 or any county, district or city attorney or court.
178 (j) (k) At the time of filing the diversion agreement with the district
179 court, the attorney general or county or district attorney shall forward to
180 the division of vehicles of the state department of revenue a copy of any
181 diversion agreement entered into in lieu of further criminal proceedings
182 on a complaint alleging a violation of K.S.A. 8-1567, and amendments
183 thereto. The copy of the agreement shall be made available upon request
184 to the attorney general or any county, district or city attorney or court.
185 Sec. 4. K.S.A. 12-4416 and 22-2909 are hereby repealed.
186 Sec. 5. This act shall take effect and be in force from and after its
187 publication in the statute book.