October 22, 2001

ATTORNEY GENERAL OPINION NO. 2001- 48

The Honorable Michael R. O'Neal

State Representative, 104th District

P.O. Box 2977

Hutchinson, Kansas 67504

Re:	Automobiles and Other Vehicles--Uniform Act Regulating Traffic; Rules of the Road; Serious Traffic Offenses--Driving Under Influence of Alcohol or Drugs; Penalties; Municipal Diversion as "Conviction"

Cities and Municipalities--Code for Municipal Courts; Trials and Proceedings Incident Thereto--Municipal Diversion Agreements; Expungement of Diversion Agreement

Synopsis:	Entering into a municipal diversion agreement is a "conviction" for purposes of enhanced punishment under K.S.A. 2000 Supp. 8-1567, regardless whether the diversion agreement is expunged pursuant to K.S.A. 2000 Supp. 12-4516. Cited herein: K.S.A. 2000 Supp. 8-1567, as amended by L. 2001, Ch. 200, § 14; K.S.A. 12-4416; K.S.A. 2000 Supp. 12-4516.

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Dear Representative O'Neal:

You inquire whether entering into a municipal diversion agreement is a "conviction" for purposes of enhanced punishment under K.S.A. 2000 Supp. 8-1567, as amended by L. 2001, Ch. 200, § 14, if the diversion agreement has been expunged.

K.S.A. 2000 Supp. 8-1567 is a "self-contained habitual criminal act"1 because of the enhanced punishment for multiple "convictions" of driving while intoxicated.2

"(l) For the purpose of determining whether a conviction is a first, second, third, fourth, or subsequent conviction in sentencing under this section:

"(2) 'conviction' includes being convicted of a violation of . . . an ordinance of any city . . . which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such . . . ordinance."

If a person enters into a municipal diversion agreement on an alcohol related charge, the municipal court retains a copy and the city attorney forwards the agreement to the Division of Vehicles.3 A copy of the agreement can be provided to any county/district attorney, city attorney, or court.4

K.S.A. 2000 Supp. 12-4516(b) allows a person to petition for expungement of a diversion agreement for violation of an ordinance that would also constitute a violation of K.S.A. 2000 Supp. 8-1567 if certain conditions are met. If the municipal court enters an expungement order, the custodian of the diversion record cannot disclose the existence of the diversion except when requested by "a court, upon a showing of a subsequent conviction of the person whose record has been expunged."5 Therefore, it would appear that an expungement of a municipal DUI diversion agreement does not vitiate the "conviction" for purposes of sentencing for subsequent violations of K.S.A. 2000 Supp. 8-
1567.

This conclusion is consistent with Kansas appellate court decisions that discuss including DUI diversion agreements as "convictions" for purposes of enhanced punishment under K.S.A. 2000 Supp. 8-1567:

"In the context of the Habitual Criminal Act . . . this court has held 'it is the nature of the offense not the manner of punishment, which determines the applicability of the habitual criminal act,' and thereby a harsher sentence. (citation omitted). A similar statement can be made of the DUI laws. The important fact is that an offense of driving while under the influence has occurred twice. The fact that the defendant was lucky enough to be allowed diversion in the first case should not preclude the enhancement of the sentence for a second offense.

"The nature of diversion in the context of a DUI violation is particularly indicative of the diversion's conviction-like nature. In order to enter into a diversion agreement, a defendant must stipulate to the facts constituting the offense. [Thus], while there is not a guilty plea, there is an admission by the defendant of the commission of the offense. [If] a defendant commits a second offense, there are no breaks. The purpose of a sentence enhancement is to punish those who violate the law repeatedly."6

In State v. Booze,7 the Court concluded that the triggering point for counting a diversion as a "conviction" is the "entering into a diversion agreement," and, therefore, the fact that diversion was not completed is irrelevant. The rationale of Booze and State v. Clevenger8 would apply as well to an expungement of a diversion agreement. Therefore, it is our opinion that entering into a municipal diversion agreement is a "conviction" for purposes of enhanced punishment under K.S.A. 2000 Supp. 8-1567, regardless whether the diversion agreement is expunged pursuant to K.S.A. 2000 Supp. 12-4516.

Very truly yours,

CARLA J. STOVALL

Attorney General of Kansas

Mary Feighny

Assistant Attorney General

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