Special Session of 2020
HOUSE BILL No. 2002
By Representatives Jennings and Owens
1 AN ACT concerning crimes, punishment and criminal procedure; relating
2 to diversion agreements; creating a certified drug abuse treatment
3 program for people on diversion; supervision by court services or
4 community corrections; amending K.S.A. 22-2907, 75-5291 and 75-
5 52,144 and K.S.A. 2019 Supp. 22-2909 and repealing the existing
8 Be it enacted by the Legislature of the State of Kansas:
9 New Section 1. (a) There is hereby established a certified drug abuse
10 treatment program for certain persons who enter into a diversion
11 agreement in lieu of further criminal proceedings on and after July 1,
12 2020. Placement of divertees in a certified drug abuse treatment program
13 pursuant to a diversion agreement shall be limited to placement of adults,
14 on a complaint alleging a felony violation of K.S.A. 2019 Supp. 21-5706,
15 and amendments thereto, whose offense is classified in grid blocks 5-C, 5-
16 D, 5-E, 5-F, 5-G, 5-H or 5-I of the sentencing guidelines grid for drug
17 crimes who have no felony conviction of K.S.A. 65-4142, 65-4159, 65-
18 4161, 65-4163 or 65-4164, prior to their repeal, K.S.A. 2010 Supp. 21-
19 36a03, 21-36a05 or 21-36a16, prior to their transfer, or K.S.A. 2019 Supp.
20 21-5703, 21-5705 or 21-5716, and amendments thereto, or any
21 substantially similar offense from another jurisdiction.
22 (b) As part of the consideration of whether or not to allow diversion
23 to the defendant, a divertee who meets the requirements of subsection (a)
24 shall be subject to:
25 (1) A drug abuse assessment that shall include a clinical interview
26 with a mental health professional and a recommendation concerning drug
27 abuse treatment for the divertee; and
28 (2) a standardized criminal risk-need assessment specified by the
29 Kansas sentencing commission.
30 (c) The diversion agreement shall require the divertee to comply with
31 and participate in a certified drug abuse treatment program if the divertee
32 meets the assessment criteria set by the Kansas sentencing commission.
33 The term of treatment shall not exceed 18 months.
34 (d) Divertees who are committed to a certified drug abuse treatment
35 program pursuant to subsection (c) may be supervised by community
36 correctional services or court services pursuant to a memorandum of
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1 understanding entered into pursuant to K.S.A. 22-2907, and amendments
3 (e) (1) Divertees in a certified drug abuse treatment program shall be
4 discharged from the program if the divertee:
5 (A) Is convicted of a new felony; or
6 (B) has a pattern of intentional conduct that demonstrates the
7 divertee's refusal to comply with or participate in the treatment program in
8 the opinion of the county or district attorney.
9 (2) Divertees who are discharged from such program pursuant to
10 paragraph (1) shall be subject to the revocation provisions of the divertee's
11 diversion agreement.
12 (f) For the purposes of this section:
13 (1) "Mental health professional" includes licensed social workers,
14 persons licensed to practice medicine and surgery, licensed psychologists,
15 licensed professional counselors or registered alcohol and other drug abuse
16 counselors licensed or certified as addiction counselors who have been
17 certified by the secretary of corrections to treat persons pursuant to K.S.A.
18 75-52,144, and amendments thereto.
19 (2) "Divertee" means a person who has entered into a diversion
20 agreement pursuant to K.S.A. 22-2909, and amendments thereto.
21 Sec. 2. K.S.A. 22-2907 is hereby amended to read as follows: 22-
22 2907. (1)(a) After a complaint has been filed charging a defendant with
23 commission of a crime and prior to conviction thereof, and after the
24 district attorney has considered the factors listed in K.S.A. 22-2908, if it
25 appears to the district attorney that diversion of the defendant would be in
26 the interests of justice and of benefit to the defendant and the community,
27 the district attorney may propose a diversion agreement to the defendant.
28 The terms of each diversion agreement shall be established by the district
29 attorney in accordance with K.S.A. 22-2909, and amendments thereto.
30 (2)(b) Each district attorney shall adopt written policies and
31 guidelines for the implementation of a diversion program in accordance
32 with this act. Such policies and guidelines shall provide for a diversion
33 conference and other procedures in those cases where the district attorney
34 elects to offer diversion in lieu of further criminal proceedings on the
36 (3)(c) Each defendant shall be informed in writing of the diversion
37 program and the policies and guidelines adopted by the district attorney.
38 The district attorney may require any defendant requesting diversion to
39 provide information regarding prior criminal charges, education, work
40 experience and training, family, residence in the community, medical
41 history, including any psychiatric or psychological treatment or
42 counseling, and other information relating to the diversion program. In all
43 cases, the defendant shall be present and shall have the right to be
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1 represented by counsel at the diversion conference with the district
3 (d) (1) A county or district attorney may enter into a memorandum of
4 understanding with the judicial administrator appointed pursuant to
5 K.S.A. 20-318(b), and amendments thereto, or community correctional
6 services to assist with supervision and monitoring of persons who have
7 entered into a diversion agreement. The county or district attorney shall
8 retain authority over whether a defendant is given the option to enter into
9 a diversion agreement and whether the defendant's diversion agreement
10 will be revoked.
11 (2) A memorandum of understanding shall include provisions related
13 (A) Determining the level of supervision needed for a defendant;
14 (B) use of a criminal risk-need assessment; and
15 (C) payment of costs for supervision.
16 (3) When a person who has entered into a diversion agreement is
17 supervised pursuant to a memorandum of understanding under this
18 subsection, the person shall pay a supervision fee in the amount
19 established in K.S.A. 21-6607(c)(3)(A) for misdemeanor or felony post-
20 conviction supervision, as appropriate for the crime charged. The
21 diversion supervision fee imposed by this paragraph shall be charged and
22 collected by the district court. The clerk of the district court shall remit all
23 moneys received under this paragraph from diversion supervision fees to
24 the state treasurer in accordance with the provisions of K.S.A. 75-4215,
25 and amendments thereto. Upon receipt of each such remittance, the state
26 treasurer shall deposit the entire amount in the state treasury and credit
27 such amounts as follows: To the state general fund, a sum equal to 41.67%
28 of such remittance; and to the correctional supervision fund, a sum equal
29 to 58.33% of such remittance. The diversion supervision fee specified by
30 this paragraph may be reduced or waived by the supervision officer.
31 (4) When a person who has entered into a diversion agreement is
32 supervised pursuant to a memorandum of understanding under this
33 subsection, the person shall pay the actual costs of any urinalysis testing
34 required as a term of supervision. Payments for urinalysis testing shall be
35 remitted to the county treasurer for deposit in the county general fund. The
36 costs of urinalysis testing may be reduced or waived by the county or
37 district attorney.
38 (5) The supreme court may adopt rules regarding the content of a
39 memorandum of understanding between a county or district attorney and
40 the judicial administrator and the administration of a supervision program
41 operating pursuant to such memorandum of understanding.
42 Sec. 3. K.S.A. 2019 Supp. 22-2909 is hereby amended to read as
43 follows: 22-2909. (a) (1) A diversion agreement shall provide that if the
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1 defendant fulfills the obligations of the program described therein, as
2 determined by the attorney general or county or district attorney, such
3 attorney shall act to have the criminal charges against the defendant
4 dismissed with prejudice. The diversion agreement shall include
5 specifically the waiver of all rights under the law or the constitution of
6 Kansas or of the United States to a speedy arraignment, preliminary
7 examinations and hearings, and a speedy trial, and in the case of diversion
8 under subsection (c) waiver of the rights to counsel and trial by jury. The
9 diversion agreement may include, but is not limited to, provisions
11 (A) Payment of restitution, including court costs and diversion costs,;
12 (B) residence in a specified facility,;
13 (C) maintenance of gainful employment, and;
14 (D) participation in programs offering medical, educational,
15 vocational, social and psychological services, corrective and preventive
16 guidance and other rehabilitative services; and
17 (E) supervision by the county or district attorney, or by court services
18 or community correctional services pursuant to a memorandum of
19 understanding entered into by the county or district attorney pursuant to
20 K.S.A. 22-2907, and amendments thereto, including the diversion
21 supervision fee and urinalysis costs described in K.S.A. 22-2907, and
22 amendments thereto, when applicable.
23 (2) If a county creates a local fund under the property crime
24 restitution and compensation act, a county or district attorney may require
25 in all diversion agreements as a condition of diversion the payment of a
26 diversion fee in an amount not to exceed $100. Such fees shall be
27 deposited into the local fund and disbursed pursuant to recommendations
28 of the local board under the property crime restitution and victims
29 compensation act.
30 (3) If the attorney general enters into a diversion agreement: (A) Any
31 diversion costs or fees collected pursuant to such agreement shall be
32 deposited in the fraud and abuse criminal prosecution fund established by
33 K.S.A. 75-765, and amendments thereto; and (B) the attorney general may
34 enter into agreements with the appropriate county or district attorney or
35 other appropriate parties regarding the supervision of conditions of such
36 diversion agreement.
37 (b) The diversion agreement shall state: (1) The defendant's full
38 name; (2) the defendant's full name at the time the complaint was filed, if
39 different from the defendant's current name; (3) the defendant's sex, race
40 and date of birth; (4) the crime with which the defendant is charged; (5)
41 the date the complaint was filed; and (6) the district court with which the
42 agreement is filed.
43 (c) If a diversion agreement is entered into in lieu of further criminal
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1 proceedings on a complaint alleging a violation of K.S.A. 8-1567, and
2 amendments thereto, the diversion agreement shall include a stipulation,
3 agreed to by the defendant, the defendant's attorney if the defendant is
4 represented by an attorney and the attorney general or county or district
5 attorney, of the facts upon which the charge is based and a provision that if
6 the defendant fails to fulfill the terms of the specific diversion agreement
7 and the criminal proceedings on the complaint are resumed, the
8 proceedings, including any proceedings on appeal, shall be conducted on
9 the record of the stipulation of facts relating to the complaint. In addition,
10 the agreement shall include a requirement that the defendant:
11 (1) Pay a fine specified by the agreement in an amount equal to an
12 amount authorized by K.S.A. 8-1567, and amendments thereto, for a first
13 offense or, in lieu of payment of the fine, perform community service
14 specified by the agreement, in accordance with K.S.A. 8-1567, and
15 amendments thereto; and
16 (2) participate in an alcohol and drug evaluation conducted by a
17 licensed provider pursuant to K.S.A. 8-1008, and amendments thereto, and
18 follow any recommendation made by the provider after such evaluation.
19 (d) If a diversion agreement is entered into in lieu of further criminal
20 proceedings on a complaint alleging a domestic violence offense, as
21 defined in K.S.A. 2019 Supp. 21-5111, and amendments thereto, the
22 diversion agreement shall include a requirement that the defendant
23 undergo a domestic violence offender assessment and follow all
24 recommendations unless otherwise agreed to with the prosecutor in the
25 diversion agreement. The defendant shall be required to pay for such
26 assessment and, unless otherwise agreed to with the prosecutor in the
27 diversion agreement, for completion of all recommendations.
28 (e) If a diversion agreement is entered into in lieu of further criminal
29 proceedings on a complaint alleging a violation other than K.S.A. 8-1567,
30 and amendments thereto, the diversion agreement may include a
31 stipulation, agreed to by the defendant, the defendant's attorney if the
32 defendant is represented by an attorney and the attorney general or county
33 or district attorney, of the facts upon which the charge is based and a
34 provision that if the defendant fails to fulfill the terms of the specific
35 diversion agreement and the criminal proceedings on the complaint are
36 resumed, the proceedings, including any proceedings on appeal, shall be
37 conducted on the record of the stipulation of facts relating to the
39 (f) If the person entering into a diversion agreement is a nonresident,
40 the attorney general or county or district attorney shall transmit a copy of
41 the diversion agreement to the division. The division shall forward a copy
42 of the diversion agreement to the motor vehicle administrator of the
43 person's state of residence.
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1 (g) If the attorney general or county or district attorney elects to offer
2 diversion in lieu of further criminal proceedings on the complaint and the
3 defendant agrees to all of the terms of the proposed agreement, the
4 diversion agreement shall be filed with the district court and the district
5 court shall stay further proceedings on the complaint. If the defendant
6 declines to accept diversion, the district court shall resume the criminal
7 proceedings on the complaint.
8 (h) Except as provided in subsection (i), if a diversion agreement is
9 entered into in lieu of further criminal proceedings alleging commission of
10 a misdemeanor by the defendant, while under 21 years of age, under
11 K.S.A. 2019 Supp. 21-5701 through 21-5717, and amendments thereto, or
12 K.S.A. 41-719, 41-727, 41-804, 41-2719 or 41-2720, and amendments
13 thereto, the agreement shall require the defendant to participate in an
14 alcohol and drug evaluation conducted by a licensed provider pursuant to
15 K.S.A. 8-1008, and amendments thereto, and follow any recommendation
16 made by the provider after such evaluation.
17 (i) If the defendant is 18 or more years of age but less than 21 years
18 of age and allegedly committed a violation of K.S.A. 41-727, and
19 amendments thereto, involving cereal malt beverage, the provisions of
20 subsection (h) are permissive and not mandatory.
21 (j) If a diversion agreement is entered into in lieu of further criminal
22 proceedings on a complaint alleging a violation of K.S.A. 2019 Supp. 21-
23 6421, and amendments thereto, the agreement:
24 (1) Shall include a requirement that the defendant pay a fine specified
25 by the agreement in an amount equal to an amount authorized by K.S.A.
26 2019 Supp. 21-6421, and amendments thereto; and
27 (2) may include a requirement that the defendant enter into and
28 complete a suitable educational or treatment program regarding
29 commercial sexual exploitation.
30 (k) Except diversion agreements reported under subsection (l), the
31 attorney general or county or district attorney shall forward to the Kansas
32 bureau of investigation a copy of the diversion agreement at the time such
33 agreement is filed with the district court. The copy of the agreement shall
34 be made available upon request to the attorney general or any county,
35 district or city attorney or court.
36 (l) At the time of filing the diversion agreement with the district
37 court, the attorney general or county or district attorney shall forward to
38 the division of vehicles of the state department of revenue a copy of any
39 diversion agreement entered into in lieu of further criminal proceedings on
40 a complaint alleging a violation of K.S.A. 8-1567, and amendments
41 thereto. The copy of the agreement shall be made available upon request to
42 the attorney general or any county, district or city attorney or court.
43 Sec. 4. K.S.A. 75-5291 is hereby amended to read as follows: 75-
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1 5291. (a) (1) The secretary of corrections may make grants to counties for
2 the development, implementation, operation and improvement of
3 community correctional services that address the criminogenic needs of
4 felony offenders including, but not limited to, adult intensive supervision,
5 substance abuse and mental health services, employ