Kansas Code of Criminal Procedure
K.S.A. Chapter 22 - Article 29
Procedure After Arrest
Current through end of 2022 legislative session
22-2901 Appearance before the magistrate.
22-2902 Preliminary examination.
22-2902a Preliminary examination; admissibility of report of forensic examiner.
22-2902c Preliminary examination; admissibility of field test results.
22-2902d Scrap metal preliminary examination; business records admissible.
22-2903 Exclusion and separation of witnesses.
22-2904 Testimony reduced to writing.
22-2905 Proceedings after the preliminary examination.
22-2906 Definitions.
22-2907 Diversion agreements authorized; policies and guidelines by district attorney; background information; right to counsel.
22-2908 Grant of diversion; factors to consider; when prohibited.
22-2909 Diversion agreements; provisions; waiver of certain rights; stipulation of facts; stay of criminal proceedings; filing of agreements; alcohol and drug-related offenses, evaluation required, when.
22-2910 Conditioning diversion on plea prohibited; inadmissibility of agreement; other matters.
22-2911 Failure to fulfill diversion agreement; satisfactory fulfillment; records.
22-2912 District court rules for diversion procedures; 22-2906 to 22-2911, inapplicable; factors.
22-2914 Uniform Securities Act preliminary examination; business records admissible.
22-2901. Appearance before the magistrate.
(1) Except as provided in subsection (7), when an arrest is made in the county where the crime charged is alleged to have been committed, the person arrested shall be taken without unnecessary delay before a magistrate of the court from which the warrant was issued. If the arrest has been made on probable cause, without a warrant, he shall be taken without unnecessary delay before the nearest available magistrate and a complaint shall be filed forthwith.
(2) Except as provided in subsection (7), when an arrest is made in a county other than where the crime charged is alleged to have been committed, the person arrested may be taken directly to the county wherein the crime is alleged to have been committed without unnecessary delay or at the request of the defendant he shall be taken without unnecessary delay before the nearest available magistrate. Such magistrate shall ascertain the nature of the crime charged in the warrant and the amount of the bond, if any, endorsed on the warrant. If no warrant for the arrest of the person is before the magistrate he shall make use of telephonic, telegraphic or radio communication to ascertain the nature of the charge and the substance of any warrant that has been issued. If no warrant has been issued, a complaint shall be filed and a warrant issued in the county where the crime is alleged to have been committed, and the nature of the charge, the substance of the warrant, and the amount of the bond shall be communicated to the magistrate before whom the defendant is in custody. Upon receipt of such information, the magistrate shall proceed as hereinafter provided.
(3) The magistrate shall fix the terms and conditions of the appearance bond upon which the defendant may be released. If the first appearance is before a magistrate in a county other than where the crime is alleged to have been committed, the magistrate may release the defendant on an appearance bond in an amount not less than that endorsed on the warrant. The defendant shall be required to appear before the magistrate who issued the warrant or a magistrate of a court having jurisdiction on a day certain, not more than 14 days thereafter.
(4) If the defendant is released on an appearance bond to appear before the magistrate in another county, the magistrate who accepts the appearance bond shall forthwith transmit such appearance bond and all other papers relating to the case to the magistrate before whom the defendant is to appear.
(5) If the person arrested cannot provide an appearance bond, or if the crime is not bailable, the magistrate shall commit him to jail pending further proceedings or shall order him delivered to a law enforcement officer of the county where the crime is alleged to have been committed.
(6) The provisions of this section shall not apply to a person who is arrested on a bench warrant. Such persons shall without unnecessary delay be taken before the magistrate who issued the bench warrant.
(7) If a person is arrested on a warrant or arrested on probable cause without a warrant, pursuant to a violation of subsection (a)(1)(C) of K.S.A. 21-5808, and amendments thereto, such person shall not be allowed to post bond pending such person's first appearance in court provided that a first appearance occurs within 48 hours after arrest. The magistrate may fix as a condition of release on the appearance bond that such person report to a court services officer. Nothing in this section shall be construed to be an unnecessary delay as such term is used in this section.
History: L. 1970, ch. 129, § 22-2901; L. 1996, ch. 211, § 3; L. 2010, ch, 135, § 16, L. 2011, ch. 30, § 119, July 1.
22-2902. Preliminary examination.
(a) The state and every person charged with a felony shall have a right to a preliminary examination before a magistrate, unless such charge has been issued as a result of an indictment by a grand jury.
(b) The preliminary examination shall be held before a magistrate of a county in which venue for the prosecution lies within 14 days after the arrest or personal appearance of the defendant. Continuances may be granted only for good cause shown.
(c) The defendant shall not enter a plea at the preliminary examination. The defendant shall be personally present and except for witnesses who are children less than 13 years of age, the witnesses shall be examined in the defendant's presence. The defendant's voluntary absence after the preliminary examination has been begun in the defendant's presence shall not prevent the continuation of the examination. Except for witnesses who are children less than 13 years of age, the defendant shall have the right to cross-examine witnesses against the defendant and introduce evidence in the defendant's own behalf. If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over to the district judge having jurisdiction to try the case; otherwise, the magistrate shall discharge the defendant. When the victim of the felony is a child less than 13 years of age, the finding of probable cause as provided in this subsection may be based upon hearsay evidence in whole or in part presented at the preliminary examination by means of statements made by a child less than 13 years of age on a videotape recording or by other means.
(d) The defendant and the state shall be permitted to present the testimony of a witness through a two-way electronic audio-video communication device
(e) If the defendant and the state waive preliminary examination, the magistrate shall order the defendant bound over to the district judge having jurisdiction to try the case.
(f) Any judge of the district court may conduct a preliminary examination, and a district judge may preside at the trial of any defendant even though such judge presided at the preliminary examination of such defendant.
(g) The complaint or information, as filed by the prosecuting attorney pursuant to K.S.A. 22-2905 and amendments thereto, shall serve as the formal charging document at trial. When a defendant and prosecuting attorney reach agreement on a plea of guilty or nolo contendere, the defendant and the prosecuting attorney shall notify the district court of such agreement and arrange for a time to plead, pursuant to K.S.A. 22-3210 and amendments thereto.
(h) The judge of the district court, when conducting the preliminary examination, shall have the discretion to conduct arraignment, subject to assignment pursuant to K.S.A. 20-329 and amendments thereto, at the conclusion of the preliminary examination.
History: L. 1970, ch. 129, § 22-2902; L. 1976, ch. 163, § 10; am. by Supreme Court (order dated Dec. 5, 1980); eff. Jan. 21, 1981; L. 1986, ch. 115, § 59; L. 1993, ch. 133, § 1; L. 1999, ch. 159, § 5; L 2006, ch. 70, § 1; L. 2010, ch. 135, § 17, L. 2022, ch. 76, § 5; July 1.
22-2902a. Preliminary examination; admissibility of report of forensic examiner.
At any preliminary examination in which the results of a forensic examination, analysis, comparison or identification prepared by the Kansas bureau of investigation, the federal bureau of investigation, the bureau of alcohol, tobacco and firearms of the United States department of the treasury, the state secretary of health and environment, the sheriff's department of Johnson, Shawnee or Sedgwick county, the police department of the cities of Overland Park, Topeka or Wichita, the Sedgwick county regional forensic science center, the drug enforcement administration, the air force of the United States, the navy of the United States, the army of the United States, the Missouri southern state college regional crime laboratory, Bethany medical center, inc. located in Kansas City, Kansas, the Kansas City, Kansas community college forensic laboratory or the Kansas City, Missouri regional crime laboratory are to be introduced as evidence, the report, or a copy of the report, of the findings of the forensic examiner shall be admissible into evidence in the preliminary examination in the same manner and with the same force and effect as if the forensic examiner who performed such examination, analysis, comparison or identification and prepared the report thereon had testified in person.
History: L. 1974, ch. 243, § 1; L. 1975, ch. 199, § 1; L. 1982, ch. 143, § 1; L. 1984, ch. 130, § 2; L. 1986, ch. 132, § 1; L. 1989, ch. 99, § 1; L. 1996, ch. 224, § 2; L. 1997, ch. 71, § 1; L. 2001, ch. 68, § 1; Apr. 12.
22-2902c. Preliminary examination; admissibility of field test results.
At any preliminary examination pursuant to K.S.A. 22-2902, and amendments thereto:
(a) (1) The court may admit into evidence an alleged controlled substance if, prior to the preliminary examination, the alleged controlled substance:
(A) Has been subjected to a field test, which test has been approved by the director of the Kansas bureau of investigation;
(B) the field test has been administered by a law enforcement officer trained in the use of such field test by a person certified by the manufacturer of that field test; and
(C) the result of such field test was positive for the presumptive presence of the alleged controlled substance.
(2) A positive result on a field test described in and conducted pursuant to this subsection shall be deemed sufficient to establish probable cause to believe that the tested substance is the controlled substance alleged.
(3) The director of the Kansas bureau of investigation shall adopt by rules and regulations the approved field tests; and
(b) physical evidence with a completed evidence custody receipt showing that such evidence has been continuously held in the possession or custody of law enforcement officers, law enforcement agencies, forensic laboratories or the United States postal service since the evidence was seized, shall be admissible into evidence in the preliminary examination in the same manner and with the same force and effect as if all law enforcement officers, evidence custodians and forensic examiners involved in the chain of custody had testified in person.
History: L. 2004, ch. 56, § 1; July 1.
22-2902d. Scrap metal preliminary examination; business records admissible.
(a) At any preliminary examination pursuant to K.S.A. 22-2902, and amendments thereto, in which the details of each sale or transaction required to be maintained by scrap metal dealers pursuant to K.S.A. 2014 Supp. 50-6,110, and amendments thereto, are to be introduced as evidence, the business records of such sale or transaction shall be admissible in to evidence in the preliminary examination in the same manner and with the same force and effect as if the individuals who made the record, and the records custodian who keeps the record, had testified in person.
(b) This section shall be part of and supplemental to the Kansas code of criminal procedure.
History: L. 2015, ch. 96, § 7; July 1.
22-2903. Exclusion and separation of witnesses.
During the examination of any witnesses or when the defendant is making a statement or testifying the magistrate may, and on the request of the defendant or state shall, exclude all other witnesses. He may also cause the witnesses to be kept separate and to be prevented from communicating with each other until all are examined.
History: L. 1970, ch. 129, § 22-2903; July 1.
22-2904. Testimony reduced to writing.
The magistrate may cause a record of the proceedings to be made and should do so when requested by the prosecuting attorney or the defendant or his counsel at least 48 hours prior to the time set for preliminary examination. The cost of preparation of such record shall be paid by the party requesting it. If neither party requests the record or the request is made by an indigent defendant, such costs shall be paid from the general fund of the county and taxed as costs in the case.
History: L. 1970, ch. 129, § 22-2904; July 1.
22-2905. Proceedings after the preliminary examination.
(1) When a defendant is bound over to a district judge for trial, the prosecuting attorney shall file an information in the office of the clerk of the district court, charging the crime for which the defendant was bound over. If the complaint is in proper form, pursuant to K.S.A. 22-3201 and amendments thereto, it may be used as the information.
(2) When the defendant is bound over, the magistrate shall fix the type of bond which will assure the appearance of the defendant before a district judge and the amount and conditions of such bond in accordance with the provisions of K.S.A. 22-2802 and amendments thereto. If the bond given the magistrate prior to the preliminary examination is continuing in nature and is conditioned upon the appearance of the defendant before the magistrate and before the district judge, if bound over, then no new bond shall be required unless the magistrate hearing the preliminary examination or the district judge before whom the case is pending finds that the appearance bond previously given to the magistrate or the sureties thereon are insufficient to secure the appearance of the defendant for trial in the district court. If the amount of the appearance bond is increased, the appearance bond previously given shall continue in force and effect and the defendant shall be required to furnish an additional appearance bond only in such amount as the new appearance bond may exceed the appearance bond previously furnished. If the defendant cannot provide an appearance bond or if the offense is not bailable, the magistrate shall commit the defendant to jail.
History: L. 1970, ch. 129, § 22-2905; L. 1976, ch. 163, § 11; L. 1977, ch. 112, § 7; am. by Supreme Court (order dated Dec. 5, 1980); L. 1986, ch. 115, § 60; Jan. 12, 1987.
As used in K.S.A. 22-2907 through 22-2911, and amendments thereto:
(a) "District attorney" means district attorney, county attorney or attorney general.
(b) "Complaint" means complaint, indictment or information.
(c) "Diversion" means referral of a defendant in a criminal case to a supervised performance program prior to adjudication.
(d) "Diversion agreement" means the specification of formal terms and conditions which a defendant must fulfill in order to have the charges against him or her dismissed.
History: L. 1978, ch. 131, § 1; L. 2019, ch. 59, § 3; July 1.
22-2907. Diversion agreements authorized; policies and guidelines by district attorney; background information; right to counsel.
(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. 2020 Supp. 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.
22-2908. Grant of diversion; factors to consider; when prohibited.
(a) In determining whether diversion of a defendant is in the interests of justice and of benefit to the defendant and the community, the county or district attorney shall consider at least the following factors among all factors considered:
(1) The nature of the crime charged and the circumstances surrounding it;
(2) any special characteristics or circumstances of the defendant;
(3) whether the defendant is a first-time offender and if the defendant has previously participated in diversion, according to the certification of the Kansas bureau of investigation or the division of vehicles of the department of revenue;
(4) whether there is a probability that the defendant will cooperate with and benefit from diversion;
(5) whether the available diversion program is appropriate to the needs of the defendant;
(6) whether there is a probability that the defendant committed such crime as a result of an injury, including major depressive disorder, polytrauma, post-traumatic stress disorder or traumatic brain injury, connected to service in a combat zone, as defined in section 112 of the federal internal revenue code of 1986, in the armed forces of the United States of America;
(7) if subsection (a)(6) applies to the defendant, whether there is a probability that the defendant will cooperate with and benefit from in-patient or outpatient treatment from any treatment facility or program operated by the United States department of defense, the United States department of veterans affairs or the Kansas national guard with the consent of the defendant, as a condition of diversion;
(8) the impact 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;
(11) provisions for restitution; and
(12) any mitigating circumstances.
(b) A county or district attorney shall not enter into a diversion agreement in lieu of further criminal proceedings on a complaint if the complaint alleges that the defendant committed a:
(1) A violation of K.S.A. 8-1567, and amendments thereto and the defendant:
(A) Has previously participated in diversion upon a complaint alleging a violation of that statute or an ordinance of a city in this state which prohibits the acts prohibited by that statute;
(B) has previously been convicted of or pleaded nolo contendere to a violation of that statute or a violation of a law of another state or of a political subdivision of this or any 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 vehicle accident or collision resulting in personal injury to another person or death;
(2) violation under chapter 8 of the Kansas Statutes Annotated, and amendments thereto, and the defendant was a commercial driver's license holder at the time the violation was committed or at any subsequent time prior to being considered for diversion;
(3) class A or B felony or for crimes committed on or after July 1, 1993, an off-grid crime, a severity level 1, 2 or 3 felony for nondrug crimes, a drug severity level 1 or 2 felony for drug crimes committed on or after July 1, 1993, but prior to July 1, 2012, or a drug severity level 1, 2 or 3 felony committed on or after July 1, 2012; or
(4) domestic violence offense, as defined in K.S.A. 2021 Supp. 21-5111, and amendments thereto, and the defendant has participated in two or more diversions in the previous five year period upon complaints alleging a domestic violence offense.
(c) A county or district attorney may enter into a diversion agreement in lieu of further criminal proceedings on a complaint for violations of article 10 of chapter 32 of the Kansas Statutes Annotated, and amendments thereto, if such diversion carries the same penalties as the conviction for the corresponding violations. If the defendant has previously participated in one or more diversions for violations of article 10 of chapter 32 of the Kansas Statutes Annotated, and amendments thereto, then each subsequent diversion shall carry the same penalties as the conviction for the corresponding violations.
(d) As used in this section, "major depressive disorder," "poly-trauma," "post-traumatic stress disorder" and "traumatic brain injury" mean the same as K.S.A. 2021 Supp. 21-6630, and amendments thereto.
History: L. 1978, ch. 131, § 3; L. 1981, ch. 153, § 1; L. 1982, ch. 144, § 6; L. 1984, ch. 119, § 11; L. 1985, ch. 48, § 16; L. 1986, ch. 185, § 2; L. 1992, ch. 239, § 257; L. 1993, ch. 291, § 190; L. 2010, ch. 101, § 9, L. 2011, ch. 30, § 121, L. 2011, ch. 91, § 14, L. 2012, ch. 150, § 40; L. 2012, ch. 172, § 32; L. 2013, ch. 133, § 11; L. 2015, ch. 76, § 8; L. 2018, ch. 106, § 28; L. 2022, ch. 80, § 19; July 1.
22-2909. Diversion agreements; provisions; waiver of certain rights; stipulation of facts; stay of criminal proceedings; filing of agreements; alcohol and drug-related offenses, evaluation required, when.
(a)(1) A diversion agreement shall provide that if the defendant fulfills the obligations of the program described therein, as determined by the attorney general or county or district attorney, such attorney shall act to have the criminal charges against the defendant dismissed with prejudice. The diversion agreement shall include specifically the waiver of all rights under the law or the constitution of Kansas or of the United States to a speedy arraignment, preliminary examinations and hearings, and a speedy trial, and in the case of diversion under subsection (c) waiver of the rights to counsel and trial by jury. The diversion agreement may include, but is not limited to, provisions concerning:
(A) Payment of restitution, including court costs and diversion costs,;
(B) residence in a specified facility,;
(C) maintenance of gainful employment, and;
(D) participation in programs offering medical, educational, vocational, social and psychological services, corrective and preventive guidance and other rehabilitative services; and
(E) supervision by the county or district attorney, or by court services or community correctional services pursuant to a memorandum of understanding entered into by the county or district attorney pursuant to K.S.A. 22-2907, and amendments thereto, including the diversion supervision fee and urinalysis costs described in K.S.A. 22-2907, and amendments thereto, when applicable.
(2) If a county creates a local fund under the property crime restitution and compensation act, a county or district attorney may require in all diversion agreements as a condition of diversion the payment of a diversion fee in an amount not to exceed $100. Such fees shall be deposited into the local fund and disbursed pursuant to recommendations of the local board under the property crime restitution and victims compensation act.
(3) If the attorney general enters into a diversion agreement:
(A) Any diversion costs or fees collected pursuant to such agreement shall be deposited in the fraud and abuse criminal prosecution fund established by K.S.A. 75-765, and amendments thereto; and
(B) the attorney general may enter into agreements with the appropriate county or district attorney or other appropriate parties regarding the supervision of conditions of such diversion agreement.
(b) The diversion agreement shall state:
(1) The defendant's full name;
(2) the defendant's full name at the time the complaint was filed, if different from the defendant's current name;
(3) the defendant's sex, race and date of birth;
(4) the crime with which the defendant is charged;
(5) the date the complaint was filed; and
(6) the district court with which the agreement is filed.
(c) If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 8-1567, and amendments thereto, the diversion agreement shall include a stipulation, agreed to by the defendant, the defendant's attorney if the defendant is represented by an attorney and the attorney general or county or district attorney, of the facts upon which the charge is based and a provision that if the defendant fails to fulfill the terms of the specific diversion agreement and the criminal proceedings on the complaint are resumed, the proceedings, including any proceedings on appeal, shall be conducted on the record of the stipulation of facts relating to the complaint. In addition, the agreement shall include a requirement that the defendant:
(1) Pay a fine specified by the agreement in an amount equal to an amount authorized by K.S.A. 8-1567, and amendments thereto, for a first offense or, in lieu of payment of the fine, perform community service specified by the agreement, in accordance with K.S.A. 8-1567, and amendments thereto; and
(2) participate in an alcohol and drug evaluation conducted by a licensed provider pursuant to K.S.A. 8-1008, and amendments thereto, and follow any recommendation made by the provider after such evaluation.
(d) If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a domestic violence offense, as defined in K.S.A. 2020 Supp. 21-5111, and amendments thereto, the diversion agreement shall include a requirement that the defendant undergo a domestic violence offender assessment and follow all recommendations unless otherwise agreed to with the prosecutor in the diversion agreement. The defendant shall be required to pay for such assessment and, unless otherwise agreed to with the prosecutor in the diversion agreement, for completion of all recommendations.
(e) If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a violation other than K.S.A. 8-1567, and amendments thereto, the diversion agreement may include a stipulation, agreed to by the defendant, the defendant's attorney if the defendant is represented by an attorney and the attorney general or county or district attorney, of the facts upon which the charge is based and a provision that if the defendant fails to fulfill the terms of the specific diversion agreement and the criminal proceedings on the complaint are resumed, the proceedings, including any proceedings on appeal, shall be conducted on the record of the stipulation of facts relating to the complaint.
(f) If the person entering into a diversion agreement is a nonresident, the attorney general or county or district attorney shall transmit a copy of the diversion agreement to the division. The division shall forward a copy of the diversion agreement to the motor vehicle administrator of the person's state of residence.
(g) If the attorney general or county or district attorney elects to offer diversion in lieu of further criminal proceedings on the complaint and the defendant agrees to all of the terms of the proposed agreement, the diversion agreement shall be filed with the district court and the district court shall stay further proceedings on the complaint. If the defendant declines to accept diversion, the district court shall resume the criminal proceedings on the complaint.
(h) Except as provided in subsection (i), if a diversion agreement is entered into in lieu of further criminal proceedings alleging commission of a misdemeanor by the defendant, while under 21 years of age, under K.S.A. 2020 Supp. 21-5701 through 21-5717, and amendments thereto, or K.S.A. 41-719, 41-727, 41-804, 41-2719 or 41- 2720, and amendments thereto, the agreement shall require the defendant to participate in an alcohol and drug evaluation conducted by a licensed provider pursuant to K.S.A. 8-1008, and amendments thereto, and follow any recommendation made by the provider after such evaluation.
(i) If the defendant is 18 or more years of age but less than 21 years of age and allegedly committed a violation of K.S.A. 41-727, and amendments thereto, involving cereal malt beverage, the provisions of subsection (h) are permissive and not mandatory.
(j) If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 2020 Supp. 21-6421, and amendments thereto, the agreement:
(1) Shall include a requirement that the defendant pay a fine specified by the agreement in an amount equal to an amount authorized by K.S.A. 2020 Supp. 21-6421, and amendments thereto; and
(2) may include a requirement that the defendant enter into and complete a suitable educational or treatment program regarding commercial sexual exploitation.
(k) Except diversion agreements reported under subsection (l), the attorney general or county or district attorney shall forward to the Kansas bureau of investigation a copy of the diversion agreement at the time such agreement is filed with the district court. The copy of the agreement shall be made available upon request to the attorney general or any county, district or city attorney or court.
(l) At the time of filing the diversion agreement with the district court, the attorney general or county or district attorney shall forward to the division of vehicles of the state department of revenue a copy of any diversion agreement entered into in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 8-1567, and amendments thereto. The copy of the agreement shall be made available upon request to the attorney general or any county, district or city attorney or court.
History: L. 1978, ch. 131, § 4; L. 1982, ch. 145, § 1; L. 1982, ch. 144, § 7; L. 1985, ch. 48, § 17; L. 1986, ch. 131, § 2; L. 1988, ch. 48, § 5; L. 1988, ch. 47, § 21; L. 1989, ch. 38, § 47; L. 1990, ch. 321, § 15; L. 1993, ch. 181, § 1; L. 2009, ch. 32, § 42, L. 2010, ch, 101, § 10; L. 2011, ch. 30, § 122; L. 2011, ch. 91, § 15, L. 2011, ch. 105, § 26, L. 2012, ch. 172, § 33; L. 2018, ch. 106, § 29; L. 2019, ch. 59, § 4; L. 2021, ch. 109, § 7, July 1.
22-2910. Conditioning diversion on plea prohibited; inadmissibility of agreement; other matters.
No defendant shall be required to enter any plea to a criminal charge as a condition for diversion. No statements made by the defendant or counsel in any diversion conference or in any other discussion of a proposed diversion agreement shall be admissible as evidence in criminal proceedings on crimes charged or facts alleged in the complaint. Except for sentencing proceedings and as otherwise provided in K.S.A. 22-2909(c), and amendments thereto and as otherwise provided in K.S.A. 8-285 and 8-1567, and amendments thereto, the following shall not be admissible as evidence in criminal proceedings which are resumed under K.S.A. 22-2911: (1) Participation in a diversion program; (2) the facts of such participation; or (3) the diversion agreement entered into.
History: L. 1978, ch. 131, § 5; L. 1982, ch. 144, § 8; L. 2012, ch. 172, § 34; L. 2018, ch. 106, § 30; July 1.
22-2911. Failure to fulfill diversion agreement; satisfactory fulfillment; records.
(a) If the county or district attorney finds at the termination of the diversion period or any time prior to the termination of the diversion period that the defendant has failed to fulfill the terms of the specific diversion agreement, the county or district attorney shall inform the district court of such finding and the district court, after finding that the defendant has failed to fulfill the terms of the specific diversion agreement at a hearing thereon, shall resume the criminal proceedings on the complaint.
(b) If the defendant has fulfilled the terms of the diversion agreement, the district court shall dismiss with prejudice the criminal charges filed against the defendant.
(c) The county or district attorney shall forward to the Kansas bureau of investigation a record of the fact that a defendant did or did not fulfill the terms of a diversion agreement required to be filed under K.S.A. 22-2909 and amendments thereto. Such record shall be made available upon request to any county, district or city attorney or court.
(d) The county or district attorney shall forward to the division of vehicles of the state department of revenue a record of the fact that a defendant did or did not fulfill the terms of a diversion agreement required to be filed under K.S.A. 22-2909 and amendments thereto. Such record shall be made available to any city, county or district attorney or court.
History: L. 1978, ch. 131, § 6; L. 1981, ch. 153, § 2; L. 1982, ch. 145, § 2; L. 1982, ch. 144, § 9; L. 1985, ch. 79, § 5; L. 1993, ch. 166, § 3; L. 1998, ch. 131, § 6; July 1.
22-2912. District court rules for diversion procedures; 22-2906 to 22-2911, inapplicable; factors.
The provisions of this act shall not be applicable in judicial districts that adopt district court rules pursuant to K.S.A. 20-342 for the administration of diversion procedures by the district court. In judicial districts where the district court adopts such rules for diversion procedures, the court in considering whether or not to allow diversion to a defendant shall consider, but is not limited to, the factors enumerated in K.S.A. 22-2908.
History: L. 1978, ch. 131, § 7; July 1.
22-2914. Uniform Securities Act business records admissible.
(a) At any preliminary examination pursuant to K.S.A. 22-2902, and amendments thereto, in which business records that have been obtained pursuant to K.S.A. 17-12a602, and amendments thereto, are to be introduced as evidence, the business records shall be admissible into evidence in the preliminary examination in the same manner and with the same force and effect as if the individuals who made the record, and the records custodian who keeps the record, had testified in person.
(b) This section shall be part of and supplemental to the Kansas code of criminal procedure.
History: L. 2015, ch. 70, § 4; July 1.