In Kansas, there are certain requirements a person must meet in order to legally qualify for diversion.  We will examine these minimum legal requirements in an upcoming blog post.  Once a person meets the minimum legal requirements, are they eligible for diversion automatically?  I get this question often from clients.  Many believe that if they have not had a prior DUI or DWI diversion, they must be allowed a chance at diversion by law.  While not having a prior DUI or DWI diversion or conviction is one part of the mandatory legal requirements for a diversion, this does not mean a person will automatically be considered for diversion.

KSA 8-1009 controls the discretion on who can be considered for diversion.  Even if minimum legal requirements are met, this statute sets out that the prosecutor will determine who can qualify for any diversion programs set up by the prosecutor’s office. If charges are in the county, it is the county prosecutor who will determine.  If charges are in the city, the city prosecutor will make the determination.  Allowance of diversion is at the complete discretion of a prosecutor.  Even if a person meets the minimum legal requirements for a DUI or DWI diversion, a prosecutor may still use their discretion and determine any person may not be eligible.  This also assumes that a particular jurisdiction even has a diversion program, which is not a requirement by law.

So what considerations might a prosecutor use in determining a person is not eligible for diversion even if they meet the minimum legal requirements?  Reasons can vary from prosecutor to prosecutor.  Some prosecutors might determine that the driving involved was too careless or dangerous.  Other prosecutors might be familiar with a particular individual and decline diversion based on other history or factors relating to the Defendant.  Finally, some prosecutors could feel that treatment while on probation would better work towards resolving any alcohol issues for a particular Defendant.  While the reasons may vary, it is important to understand that diversion for a DUI or DWI is a privilege given by a prosecutor and is not a guarantee by law.

Until next time, drive safe!