Printable Format22-2907. Diversion agreements authorized; policies and guidelines by district attorney; background information; right to counsel; supervision of persons subject to a diversion agreement by court services or community corrections subject to a memorandum of understanding. (a) After a complaint has been filed charging a defendant with commission of a crime and prior to conviction thereof, and after the district attorney has considered the factors listed in K.S.A. 22-2908, if it appears to the district attorney that diversion of the defendant would be in the interests of justice and of benefit to the defendant and the community, the district attorney may propose a diversion agreement to the defendant. The terms of each diversion agreement shall be established by the district attorney in accordance with K.S.A. 22-2909, and amendments thereto.
(b) Each district attorney shall adopt written policies and guidelines for the implementation of a diversion program in accordance with this act. Such policies and guidelines shall provide for a diversion conference and other procedures in those cases where the district attorney elects to offer diversion in lieu of further criminal proceedings on the complaint.
(c) Each defendant shall be informed in writing of the diversion program and the policies and guidelines adopted by the district attorney. The district attorney may require any defendant requesting diversion to provide information regarding prior criminal charges, education, work experience and training, family, residence in the community, medical history, including any psychiatric or psychological treatment or counseling, and other information relating to the diversion program. In all cases, the defendant shall be present and shall have the right to be represented by counsel at the diversion conference with the district attorney.
(d) (1) A county or district attorney may enter into a memorandum of understanding with the chief judge of a judicial district or community correctional services to assist with supervision and monitoring of persons who have entered into a diversion agreement. The county or district attorney shall retain authority over whether a defendant is given the option to enter into a diversion agreement and whether the defendant's diversion agreement will be revoked.
(2) A memorandum of understanding shall include provisions related to:
(A) Determining the level of supervision needed for a defendant;
(B) use of a criminal risk-need assessment;
(C) payment of costs for supervision; and
(D) waiver of the supervision fee established in this subsection.
(3) (A) When a person who has entered into a diversion agreement is supervised pursuant to a memorandum of understanding under this subsection, the person shall pay a supervision fee in the amount established in K.S.A. 21-6607(c)(3)(A) for misdemeanor or felony post-conviction supervision, as appropriate for the crime charged.
(B) The diversion supervision fee imposed by this paragraph shall be charged and collected by the county or district attorney.
(C) All moneys collected pursuant to this section shall be paid into the county general fund and used to fund the costs of diversion supervision performed pursuant to a memorandum of understanding under this subsection.
(D) The diversion supervision fee specified by this paragraph may be reduced or waived by the county or district attorney in accordance with a memorandum of understanding under this subsection.
(4) When a person who has entered into a diversion agreement is supervised pursuant to a memorandum of understanding under this subsection, the person shall pay the actual costs of any urinalysis testing required as a term of supervision. Payments for urinalysis testing shall be remitted to the county treasurer for deposit in the county general fund. The costs of urinalysis testing may be reduced or waived by the county or district attorney.
(5) The office of judicial administration may develop guidelines regarding the content of a memorandum of understanding between a county or district attorney and the chief judge of a judicial district and the administration of a supervision program operating pursuant to such memorandum of understanding.
History: L. 1978, ch. 131, § 2; L. 2021, ch. 109, § 6; July 1.
Law Review and Bar Journal References:
"Kansas Diversion: Defendant's Remedies and Prosecutorial Opportunities," Joseph Brian Cox, 20 W.L.J. 344, (1981).
"A Comment on Kansas' New Drunk Driving Law," Joseph Brian Cox and Donald G. Strole, 51 J.K.B.A. 230, 240 (1982).
"The New Kansas DUI Law: Constitutional Issues and Practical Problems," Gerard Little, Jr., 22 W.L.J. 340, 355 (1983).
"Reform in Kansas Domestic Violence Legislation," David J. Gottlieb and L. Eric Johnson, 31 K.L.R. 527, 549 (1983).
"Kansas Diversion: Will Courts Become More Involved?" Michael Kaye, 56 J.K.B.A., No. 1, 8 (1986).
Attorney General's Opinions:
Procedure after arrest; diversion from prosecution. 81-198.
Serious traffic offenses; driving while under influence of alcohol; effect of state law on city ordinances. 82-152.
Juvenile offenders code; diversion; necessity of complaint being filed prior to diversion. 83-163.
Provisions of diversion agreement; disposition of diversion fees. 89-105.
Diversion fee in county with a property crime compensation board. 90-128.
Diversion agreement; provision for contributions to nonprofit organization. 93-120.
Traffic speeding infractions; county diversion program; procedures; fees in excess of actual costs and/or donations to charity. 97-70.
CASE ANNOTATIONS
1. Held constitutional and not violative of the separation of powers doctrine; trial court reversed. State v. Greenlee, 228 Kan. 712, 620 P.2d 1132.
2. Records of diversion not within expungement statute (K.S.A. 21-4609). State v. Haug, 237 Kan. 390, 392, 699 P.2d 535 (1985).
3. Noted; trial court's refusal to set aside diversion agreement not appealable under K.S.A. 22-3603. State v. McDaniels, 237 Kan. 767, 768, 771, 703 P.2d 789 (1985).
4. Diversion conference not necessary where county attorney has determined that diversion inappropriate. State v. Gaschler, 17 Kan. App. 2d 699, 701, 847 P.2d 1319 (1992).
5. Texas deferred adjudication is counted as a prior conviction for sentencing purposes in Kansas as Texas court can defer adjudication only after defendant pleads guilty or nolo contendre. State v. Macais, 30 Kan. App. 2d 79, 39 P.3d 85 (2002).
6. Cited in dissent where majority of court held juveniles have constitutional right to jury trials. In re L.M., 286 Kan. 460, 487, 186 P.3d 164 (2008).
7. Provision of K.S.A. 22-2910 does not apply to statements made to law enforcement prior to complaint filing. State v. Woodward, 288 Kan. 297, 202 P.3d 15 (2009).
8. The 30-day time limit rule adopted by the district attorney's office within its authority. State v. Kacsir, 45 Kan. App. 2d 409, 251 P.3d 632 (2011).