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.