Expungement of Diversion Agreements in Kansas
March 22, 2018
In Kansas, someone charged with a criminal offense may be able to enter into a diversion agreement rather than go through trial. In a diversion agreement, a defendant stipulates to the criminal charges brought by the prosecutor and agrees to satisfy certain conditions in exchange for not going to trial and possibly being convicted. However, diversion agreements are also part of an individual’s criminal record, and just like a record of an arrest or conviction, it can have serious negative consequences for an individual’s future. If you are seeking expungement of diversion agreements from your records in Wichita or anywhere in the south central Kansas area, you should seek the assistance of a seasoned criminal defense attorney such as J. Joseph Weber of Weber Law Office, P.A.
Diversion Agreements in General
Under Kansas statute at K.S.A. § 22-2909, a diversion agreement shall provide that if the defendant fulfills the obligations of the program the agreement describes, the state shall have the criminal charges against the defendant dismissed with prejudice. The diversion agreement includes specifically the waiver of all rights under the law to a speedy arraignment, preliminary examinations and hearings, and a speedy trial, and in some cases, waiver of the rights to counsel and trial by jury. The diversion agreement may include, but is not limited to, provisions concerning payment of restitution, residence in a specified facility, maintenance of gainful employment, and participation in programs offering medical, educational, vocational, social and psychological services, corrective and preventive guidance and other rehabilitative services.
If the attorney general or county or district attorney elects to offer diversion instead of further criminal proceedings on a criminal and the defendant agrees to all of the terms of the proposed agreement, the diversion agreement will be filed with the district court which shall stay further proceedings on the charge. If the defendant declines to accept diversion, the district court will resume the criminal proceedings.
Grounds for Expungement of Diversion Agreements
Kansas statute at K.S.A. § 21-6614allows people who have certain diversion agreements from petitioning a court for the expungement of those agreements and related arrest records if three or more years have passed since the petitioner satisfied the conditions of the diversion agreement. This applies to diversion agreements entered into for traffic infractions, cigarette or tobacco infractions, misdemeanors, Class D or E felonies, or any felony ranked in severity level 5 of the statutory drug grid.
The waiting period is extended to five years if the diversion agreement involves the following:
Class A, B, or C felonies;
Felonies ranked in severity levels 1 through 4 of the Kansas statute’s drug grid;
Driving while the privilege to operate a motor vehicle on the public highways has been canceled, suspended, or revoked;
Any crime punishable as a felony wherein a motor vehicle was used in the perpetration of such crime; or
Failing to stop at the scene of an accident and perform the duties required by law.
If the diversion agreement involves driving a (noncommercial) motor vehicle under the influence of drugs or alcohol, the waiting period for expungement is extended to ten years.
At the hearing on the petition for expungement, the court shall grant the petition if it finds that:
The petitioner has not been convicted of a felony in the past two years, and no proceeding involving any such crime is presently pending or being instituted against the petitioner;
The circumstances and behavior of the petitioner warrant the expungement; and
The expungement is consistent with the public welfare.
You should contact an experienced defense attorney if you believe you are eligible for expungement of your conviction, which can seriously affect your prospects for future employment and economic opportunities. Call Weber Law Office, P.A. or submit our online information request form. We will review your records, conduct a thorough investigation, and help you pursue a successful expungement.