Judges: Carla J. Stovall, Attorney General of Kansas
Filed Date: 10/22/2001
Status: Precedential
Modified Date: 7/5/2016
The Honorable Michael R. O'Neal State Representative, 104th District P.O. Box 2977 Hutchinson, Kansas 67504
Dear Representative O'Neal:
You inquire whether entering into a municipal diversion agreement is a "conviction" for purposes of enhanced punishment under K.S.A. 2000 Supp.
K.S.A. 2000 Supp.
"(1) For the purpose of determining whether a conviction is a first, second, third, fourth, or subsequent conviction in sentencing under this section:
"(2) 'conviction' includes being convicted of a violation of . . . an ordinance of any city . . . which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such . . . ordinance."
If a person enters into a municipal diversion agreement on an alcohol related charge, the municipal court retains a copy and the city attorney forwards the agreement to the Division of Vehicles.3 A copy of the agreement can be provided to any county/district attorney, city attorney, or court.4
K.S.A. 2000 Supp.
This conclusion is consistent with Kansas appellate court decisions that discuss including DUI diversion agreements as "convictions" for purposes of enhanced punishment under K.S.A. 2000 Supp.
"In the context of the Habitual Criminal Act . . . this court has held `it is the nature of the offense not the manner of punishment, which determines the applicability of the habitual criminal act,' and thereby a harsher sentence. (citation omitted). A similar statement can be made of the DUI laws. The important fact is that an offense of driving while under the influence has occurred twice. The fact that the defendant was lucky enough to be allowed diversion in the first case should not preclude the enhancement of the sentence for a second offense.
"The nature of diversion in the context of a DUI violation is particularly indicative of the diversion's conviction-like nature. In order to enter into a diversion agreement, a defendant must stipulate to the facts constituting the offense. [Thus], while there is not a guilty plea, there is an admission by the defendant of the commission of the offense. [If] a defendant commits a second offense, there are no breaks. The purpose of a sentence enhancement is to punish those who violate the law repeatedly."6
In State v. Booze,7 the Court concluded that the triggering point for counting a diversion as a "conviction" is the "entering into a diversion agreement," and, therefore, the fact that diversion was not completed is irrelevant. The rationale of Booze and State v. Clevenger8
would apply as well to an expungement of a diversion agreement. Therefore, it is our opinion that entering into a municipal diversion agreement is a "conviction" for purposes of enhanced punishment under K.S.A. 2000 Supp.
Very truly yours,
CARLA J. STOVALL Attorney General of Kansas
Mary Feighny Assistant Attorney General
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