Tuesday, July 17, 2018
     
Laura Johnson-McNish
Marshall County Attorney
1201 Broadway
Marysville, Kansas 66508
Telephone: (785) 562-3491
Fax: (785) 562-2971

MARSHALL COUNTY ATTORNEY'S OFFICE

1201 Broadway

Marysville, KS 66508

DIVERSION POLICY
INTRODUCTION
The Marshall County Attorney adopts and publishes thefollowing policy governing diversions of criminal and traffic offenses:
Kansas law provides that a county attorney may propose adiversion agreement if it appears that diversion would be in the interestsofjustice and of benefit to both the defendant and community. K,S.A.22—2907(1). This is the goal of every diversion entered into by this offce.
Diversions are criminal matters that are stayed. K.S.A.22-2909. "Diversion" means referral of a defendant in a criminal caseto a supervised performance program prior to adjudication. K.S.A. 22-2906(3).Reasonable conditions are typically imposed in diversion agreements in theinterests ofjustice and to serve the defendant and community.
A diversion is an agreement between the prosecution and thedefendant in a criminal (including fraffic) case that is entered into prior to&ial. The prosecution agrees to halt further court proceedings on thecharge(s) being diverted for a fixed period of time on the condition that thedefendant fulfills certain requirements. If the defendant fulfills allrequirements of diversion, the charge(s) appearing on the complaint will bedismissed with prejudice. If the defendant fails to comply with all therequirements of division, then court proceedings are resumed. A diversion issimilar to probation; however, the diversion period occurs prior to conviction,while a probation period occurs after conviction.
Diversion applications are handled on a case-by-case basis.Diversion is a privilege and not a right. There is no presumption in favor ofdiversion in any case. The burden to prove an applicant is a good candidate tolearn through diversion, rather than probation, and still assure public safety,falls upon the applicant/defendant. Diversions are not available in all typesof cases.
GENERAL DIVERSION INFORMATION:
The county attorney represents theState of Kansas and cannot represent you or advise you in your criminal case,including traffic cases. You have the right toobtain your own attorney to review your case and help you determine if adiversion is right for you.
The countv attorney generally considers only cooperative. first-timeoffenders of certain low-level crimes for diversion in accordance with all theapplicable provisions of the law, some of which are discussedherein. More specifically, only certain misdemeanors and only certain trafficoffenses are generally even considered for diversion.
Misdemeanors involving controlled substances are notconsidered for diversion unless the defendant is a juvenile offender.
The following traffic offenses are not considered fordiversion:
DUI if the applicant has a prior DUI or has received a DUIdiversion in their lifetime
Driving While Suspended 2nd or Subsequent
Driving While Habitual Violator
Fleeing and Eluding
Duty of Driver Involved in Injury or Fatality Accident
Duty of Driver Involved in a Property Damage Accident
Duty of Driver to Exchange Information and Render Aid
Duty of Driver Striking Unattended Vehicle or Property
Duty of Driver to Report to Law Enforcement Agency
Speeding tickets involving highspeeds of 90 mph in a 65 mph zone; or, speeds 25 mph or more over the speedlimit.
The county attorney may, due to the unique facts andcircumstances of a case, consider allowing a diversion beyond the normal scope.
The county attorney may, after considering all relevantfactors, deny a diversion even to a firsttime offender of a low-levelmisdemeanor or traffic case.
Generally, there is no charge forasking the county attorney's office for a diversion and receiving an answer. Ifyou do not agree with the answer, you may hire an attorney and/or complete theattached application for diversion and formally request a second determination.In that case, the county attorney's office will respond to your request inwriting.
CONSIDERATIONS FOR DIVERSION:
In determining whether a diversion is in the best interestsof justice and of benefit to the defendant and the community, the countyattorney shall consider certain factors, including, but not limited to, factorsset forth in K.S.A. 22-2908 (a), and amendments thereto. As of 2017, thefactors to be considered shall include at a minimum, but shall not be limitedto, the following :
(l) The nature of the crime charged and the circumstancessurrounding it;
(2)  anyspecial characteristics or circumstances of the defendant;
(3)  whetherthe defendant is a first-time offender and if the defendant has previouslyparticipated in diversion, according to the certification of the Kansas bureauof investigation or the division of vehicles of the department of revenue; (4)whether there is a probability that the defendant will cooperate with andbenefit from diversion;
(5)     whetherthe available diversion program is appropriate to the needs of the defendant;
(6)     whetherthere is a probability that the defendant committed such crime as a result ofan injury, including major depressive disorder, polytrauma, posttraumaticstress disorder or traumatic brain injury, connected to service in a combatzone, as defined in section 1 12 of the federal internal revenue code of 1986,in the armed forces of the United States of America;
(7)     ifsubsection (a)(6) applies to the defendant, whether there is a probability thatthe defendant will cooperate with and benefit from inpatient or outpatienttreatment from any treatment facility or program operated by the United Statesdepartment of defense, the United States department of veterans affairs or theKansas national guard with the consent of the defendant, as a condition ofdiversion;
(8)     theimpact of the diversion of the defendant upon the community;
(9)     recommendations,if any, of the involved law enforcement agency;
(10)recommendations, if any, of the victim;
(l l) provisions for restitution; and
(12) any mitigating circumstances.
According to K.S.A. (2015 Supp.) 22-2908 (d), the terms"major depressive disorder,"
"polytrauma," "post-traumatic stressdisorder" and "traumatic brain injury" shall mean the same assuch terms are defined in K.S.A. 21-6630, and amendments thereto.
Please note that the legislature may from time to time updateor change the factors for diversion that must be considered. The viewer isresponsible for checking the most up-to-date law, or contacting the countyattorney's office at (785) 562-3491 to inquire if the legislature has changedthe factors under the law that must be considered before a diversion isgranted.
DIVERSIONS PROHIBITED BY LAW:
Be aware that K.S.A. (2015 Supp.) 22-2908 (b) prohibits thecounty attorney from entering into a diversion under certain circumstanceswhich include:
(1)  Thecomplaint alleges a violation of K.S.A. 8-1567 (DUI), and amendments thereto,and the defendant: (A) Has previously participated in diversion upon acomplaint alleging a violation of that statute or an ordinance of a city inthis state which prohibits the acts prohibited by that statute; (B) has previouslybeen convicted of or pleaded nolo contendere to a violation of that statute ora violation of a law of another state or of a political subdivision of this orany other state, which law prohibits the acts prohibited by that statute; or(C) during the time of the alleged violation was involved in a motor vehicleaccident or collision resulting in personal injury or death;
(2)  Thecomplaint alleges that the defendant committed a class A or B felony or forcrimes committed on or after July l, 1993, an off-grid crime, a severity levell, 2 or 3 felony for nondrug crimes, a drug severity level 1 or 2 felony fordrug crimes committed on or after July l , 1993, but prior to July l, 2012, ora drug severity level l, 2 or 3 felony committed on or after July l, 2012; or
(3)  Thecomplaint alleges a domestic violence offense, as defined in K.S.A. 21-
51 1 1, and amendments thereto, and the defendant hasparticipated in two or more
diversions in the previous five year period upon complaintsalleging a domestic violence offense.
Please note that the legislature may from time to time updateor change the offenses that cannot qualify for diversion by law. The viewer isresponsible for checking the most up-to-date law, or contacting the countyattorney's office at (785) 562-3491 to inquire if the legislature has changedthe law pertaining to offenses that cannot qualify for diversion.
DIVERSION REQUIREMENTS IMPOSED BY LAW:
Be aware that K.S.A. (2015 Supp.) 22-2908 (c), imposescertain additional requirements on diversions for offenses rooted in article 10of chapter 32 of the Kansas Statutes Annotated. Thus, with respect to theKansas Department of Wildlife and Parks licensing, permits and offenses setforth in K.S.A. 32-1001 et seq., the conditions of diversion shall include, butnot be limited to, the following requirements imposed by law:
(c) [The} diversion [must carry] the same penaltiesas the conviction for the corresponding violations. If the defendant haspreviously participated in one or more diversions for violations of article 10of chapter 32 of the Kansas Statutes Annotated, and amendments thereto, theneach subsequent diversion shall carry the same penalties as the conviction forthe corresponding violations.
Please note that the legislature may from time to time updateor change the additional requirements that are imposed upon diversions by law.The viewer is responsible for checking the most up-to-date law, or contactingthe county attorney's office at (785) 562-3491 to inquire if the legislaturehas changed the law.
JUVENILES:
The legislature recently adopted new laws pertaining tojuvenile offenders, including Immediate Intervention Programs as set forth inK.S.A. (2017 Supp.) 38-2346 and related law.
At the current time, juveniles in Marshall County are stillconsidered for diversion in accordance with policies issued by the MarshallCounty Attomey's office. However, the juvenile law will be considered whenevaluating whether a juvenile qualifies for diversion.
TYPICAL DIVERSION FEES/COSTS:
There are fees/costs and requirements associated with adiversion. Examples include, but are not limited to: fines, court costs,restitution, court-appointed attorney fees, KBI laboratory testing fees,community service/donations, diversion fee, and other requirements apply. If itappears you qualify for a diversion, you can request that the Marshall CountyAttorney's Office provide you an estimate based upon the offense(s) for whichyou were charged. Once you decide to enter into a diversion agreement, thewritten diversion agreement itself will also set forth all costs, fees andrequirements.
APPLYING FOR
A person desiring a diversion may contact the Marshall CountyAttorney's Office by phone (785) 562-3491; or call to setup an appointment to visit the office; or by referral by the court. The termsof your diversion, based upon the underlying offense and circumstances, will beexplained to you. There is no cost for the initial request for a diversion.
If your diversion is granted, you will receive paperwork foryour review prior to signing and providing a payment to the county attorney'soffice, including a Stipulation of Facts, Diversion Agreement, and DiversionOrder. If you do not have an attorney, you will be expected to sign a Waiver ofRight to be Represented by an Attorney. If you have an attorney, the paperworkwill be provided to your attorney for review and your attorney will contact youwith regards to signing the documents and payment. Once the county attorney'soffice receives a signed copy of all documents and the required payment, thecounty attorney will sign and file the diversion documents with the court.
If your diversion is denied, you or your attorney will betold why.
If you do not agree with theinitial denial of your diversion, you may hire an attorney and/or complete theattached application for diversion and formally request a second determinationfor a S25 fee that must be submitted with your application in order to beconsidered.
It has been our experience that many people learn from adiversion and do not re-offend. We often find it a positive and pleasantexperience to work with people on diversion. Our office wants you to succeed.However, it is up to you. If a diversion is granted, it is your responsibilityto comply with the terms and conditions of diversion. If the terms andconditions of diversion are not met, a motion to revoke your diversion may befiled. Please note the Statement of Facts will be presented at court at thatpoint to seek a conviction. When diversion proceedings are resumed at anylevel, the proceedings are based upon the record of the stipulation of facts.
The diversion policy of the Marshall County Attorney may bemodified at any time.

Laura Johnson-McNish
Marshall County Attorney
SIGNED AND EFFECTIVE DATE:
APPLICATION
(Effective January l, 2018)
Ifyour diversion was denied and you disagreewith the determination, you may complete this application stating yourposition. A $25 fee must be received or your application will not beconsidered.
NAME:___________________________________          PHONE:_________________________
ADDRESS:_______________________________________________________________________



                                  Street                                                City                State               Zip

YOUR AGE:_______YOUR DATE OF BIRTH:____________



YOUR DRIVER'S LICENSE AND STATE #__________________________



YOUR ATTORNEY'S NAME:__________________________________









Are you in school? If so, what school, and what grade/level?
___________________________________________________________________________

List all your prior convictions (provide name of offense,year occurred, and where the offense occurred. Attach additional sheets ifnecessary):
                                           _________________________________________________________________________________________________
Doyou have a CDL (Commercial Driver's License): ______  yes  _______ no  What State?__________
Have you received a prior diversion? Please provide name ofoffense, year and where occurred:
_____________________________________
Why do you disagree with the denial of your diversionrequest? Why do you believe you are a good candidate for diversion? (Attachadditional pages if necessary)_______________________________________________________________________________


GENERAL INFORMATION REGARDING
COSTS/FEES/REQUIREMENTS (As ofJanuary l, 2018)
Generally. adult diversions include the following costs:
Diversion Fee
$ 25 to $100 $25 Minimum to $100 maximum
Court Costs
$108 or $158 $108 Traffic or $158 misdemeanor
Fines
(Based upon underlying offense)
Restitution
(Based upon underlying offense)
Booking Fee
$ 45
Court Appointed Attorney Fees
      $300              $0 if no attorney
Donation LETF *
Donation to LETF or
      $ 75                 $0 if Diversion Fee is $100
Community Service Hours **
25 hours
*LETF:           Law Enforcement Trainingand Equipment Fund
** Community Service Hours: A donation of $250 to the LETFcan be made in lieu of community service hours.
Diversion Fee
$25
Community Service Hours:
10 hours
Typically the 25 hours of community service must be providedto a not-for-profit organization that is exempt by the IRC under 501(c)(3), ora governmental entity that levies taxes. Community service hours require proofof time donated signed by a person who supervised the donated time.
Some diversions have additional costs, for example:
KBILab Fees                                    $400
Diversions at times impose additional costs as part of therequirements, such as the cost of an alcohol and drug information class; thecost of an alcohol and drug evaluation and treatment; the cost of a batterer'sintervention evaluation and treatment; the cost of a mental health evaluationand treatment, etc. Approved providers must be used for evaluations andtreatment. The payment of these costs is between the provider and the diversionapplicant. Only the requirement that the task be completed will be set forth inthe diversion.
The applicant for diversion must pay $100 plus court costs in order for the diversion tobe filed. The remaining costs itemized in the diversion agreement can be paidas a condition of diversion throughout the diversion period. Extensions ofdiversions may be requested in order to obtain more time to pay off the cost ofthe diversion.

Juvenile diversions are similar. except for the following:
Diversion Fee: $25Community Service Hours: 10 Hours


Click here to Download 2018 Diversion Policy