K.S.A. Chapter 12
Article 44.--CODE FOR MUNICIPAL COURTS; PROCEEDINGS AFTER ARREST AND PRIOR TO TRIAL
Current through end of 2018 legislative session
12-4401 Matters before trial.
12-4402 Appearance of accused person; action by counsel or by mail.
12-4403 Time of arraignment.
12-4404 Arraignment.
12-4405 Appointment of counsel, when.
12-4406 Pleas; failure to appear.
12-4407 Procedure upon plea of guilty.
12-4408 Motions.
12-4409 Continuances.
12-4410 Discovery, depositions.
12-4411 Subpoenas; witnesses' expenses; abuse of subpoenas, costs.
12-4412 Municipal diversion agreements; contents; copy to K.B.I., when; availability to prosecuting attorney.
12-4413 Municipal court diversion; definitions.
12-4414 Same; when agreements to be offered; written policies; information to be furnished; right to counsel.
12-4415 Municipal court diversion; factors to consider; when prohibited.
12-4416 Same; provisions of diversion agreement; waiver of certain rights; effect of failure to fulfill or accept agreement; duties of city attorney and division of vehicles.
12-4417 Same; condition diversion on plea prohibited; nonadmissible evidence.
12-4418 Failure to fulfill diversion agreement; satisfactory fulfillment; records.
12-4419 Defendants under 21 years, drug and alcohol evaluations.
12-4401. Matters before trial.
Every person charged with violation of an ordinance shall receive a copy of the complaint, and shall not be required to plead until he or she shall have had a reasonable time to examine the same, to obtain counsel and to determine his or her plea.
History: L. 1973, ch. 61, § 12-4401; April 1, 1974.
12-4402. Appearance of accused person; action by counsel or by mail.
Subject to the provisions of K.S.A. 12-4209 and amendments thereto, the municipal judge may compel the appearance of an accused person. In addition to the procedures provided in K.S.A. 12-4305 and amendments thereto, the municipal judge, upon request, may permit appearance, pleas and satisfaction of the judgment and sentence of the court by counsel or by mail.
History: L. 1973, ch. 61, § 12-4402; L. 1986, ch. 84, § 4; July 1.
Accused persons shall be arraigned:
(a) At the time specified in the notice to appear, or in the appearance bond; or
(b) if no date be specified, then on the earliest date when the court convenes.
History: L. 1973, ch. 61, § 12-4403; April 1, 1974.
Arraignment shall be conducted in open court by stating to the accused person the substance of the charge and calling upon the accused to plead thereto. Arraignment for purposes of accepting plea of not guilty may be accomplished by telephone, mail or appearance by counsel.
History: L. 1973, ch. 61, § 12-4404; L. 1993, ch. 291, § 6; L. 1994, ch. 291, § 8; July 1.
12-4405. Appointment of counsel, when.
If the municipal judge has reason to believe that if found guilty, the accused person might be deprived of his or her liberty and is not financially able to employ counsel, the judge shall appoint an attorney to represent the accused person.
Financial inability to employ counsel shall be determined by the methods provided in K.S.A. 22-4504.
History: L. 1973, ch. 61, § 12-4405; April 1, 1974.
12-4406. Pleas; failure to appear.
(a) A plea of guilty is an admission of the charge and every material fact alleged therein.
(b) A plea of no contest is a formal declaration that the accused person does not contest the charge. When such a plea is entered, a finding of guilty may be adjudged thereon. The plea cannot be used against the accused person as an admission in any other action based on the same act.
(c) A plea of not guilty denies and puts into issue every material fact alleged in the charge.
(d) If the accused person refuses to plead, the court shall enter a plea of not guilty.
(e) If the accused person fails to appear, the court shall declare the appearance bond to be forfeited and may issue a warrant for the arrest of the accused person.
History: L. 1973, ch. 61, § 12-4406; April 1, 1974.
12-4407. Procedure upon plea of guilty.
If the accused person pleads guilty, the municipal judge may hear evidence touching on the nature of the case, or otherwise ascertain the facts thereof, and after such hearing, may refuse to accept the plea or may accept the plea, assess the punishment and enter the proper judgment.
History: L. 1973, ch. 61, § 12-4407; April 1, 1974.
The Kansas code of criminal procedure shall govern, insofar as applicable, the filing and disposition of motions. Motions may be oral or written.
History: L. 1973, ch. 61, § 12-4408; April 1, 1974.
The municipal judge may grant a continuance of the trial or any hearing upon a showing of good cause, except as set out in K.S.A. 12-4501.
History: L. 1973, ch. 61, § 12-4409; April 1, 1974.
12-4410. Discovery, depositions.
The accused person shall be permitted to inspect all matters relevant to the case. Depositions shall not be taken or used except by written agreement of both parties filed with the court or by order of the court upon such conditions as the court may prescribe.
History: L. 1973, ch. 61, § 12-4410; April 1, 1974.
12-4411. Subpoenas; witnesses' expenses; abuse of subpoenas, costs.
All parties shall be entitled to the use of subpoenas to compel attendance of witnesses within the state. The municipal judge or clerk shall issue a subpoena which may be served by any law enforcement officer upon the named person. Disobedience may constitute contempt.
Fees and mileage of witnesses shall be two dollars and fifty cents ($2.50) per day or any part thereof for an appearance of [and] ten cents (10[) per mile actually driven over ten (10) miles. The fees and mileage for the attendance of witnesses shall be borne by the party calling the witness, except that if an accused person is found not guilty, the city shall pay all such expenses: Provided, The municipal judge may direct that fees and mileage of witnesses subpoenaed by the accused person be charged against such person, if the judge finds that there has been an abuse of the use of subpoenas by the accused person.
History: L. 1973, ch. 61, § 12-4411; April 1, 1974.
12-4412. Municipal diversion agreements; contents; copy to K.B.I., when; availability to prosecuting attorney.
(a) Any diversion agreement entered into in lieu of further criminal proceedings on a complaint alleging a violation of a city ordinance shall include: (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 municipal court with which the agreement is filed.
(b) The city attorney shall forward to the Kansas bureau of investigation a copy of a diversion agreement entered into by the city attorney only when required by rules and regulations adopted by the director of the bureau pursuant to K.S.A. 22-4704 and amendments thereto. The copy of the agreement shall be made available upon request to any county, district or city attorney who subsequently considers diversion of the person.
(c) As used in this section, "complaint" includes a citation or notice to appear.
History: L. 1982, ch. 145, § 3; L. 1985, ch. 79, § 1; July 1.
12-4413. Municipal court diversion; definitions.
As used in K.S.A. 8-1009, 12-4413 through 12-4418, and amendments thereto:
(a) "City attorney" means a city attorney of a city of this state.
(b) "Complaint" means complaint, citation or notice to appear in a municipal court.
(c) "Diversion" means referral of a defendant in a criminal case charging an alcohol related offense 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 such person dismissed.
(e) "Alcohol related offense" means violation of an ordinance of a city of this state that prohibits the acts prohibited by K.S.A. 8-1567, and amendments thereto, or violation of such statute.
History: L. 1982, ch. 144, § 12; L. 2018, ch. 106, § 16; July 1.
12-4414. Same; when agreements to be offered; written policies; information to be furnished; right to counsel.
(a) Except as provided in K.S.A. 8-1567, and amendments thereto, after a complaint has been filed charging a defendant with violation of an alcohol or drug related offense and prior to conviction thereof, and after the city attorney has considered the factors listed in K.S.A. 12-4415, if it appears to the city attorney that diversion of the defendant would be in the interests of justice and of benefit to the defendant and the community, the city attorney may propose a diversion agreement to the defendant. The terms of each diversion agreement shall be established by the city attorney in accordance with K.S.A. 12-4416.
(b) Each city attorney shall adopt written policies and guidelines for the implementation of a diversion program in accordance with K.S.A. 8-1009, 12-4412 through 12-4417 and amendments thereto. Such policies and guidelines shall provide for a diversion conference and other procedures in those cases where the city 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 city attorney. The city 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 city attorney.
History: L. 1982, ch. 144, § 13; L. 2018, ch. 106, § 17; July 1.
12-4415. Municipal court 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 city 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 of an alcohol related offense and if the defendant has previously participated in diversion, according to the certification of the division of vehicles of the state department of revenue;
(4) whether there is a probability that the defendant will cooperate with and benefit from diversion;
(5) 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;
(6) if subsection (a)(5) applies to the defendant, whether there is a probability that the defendant will cooperate with and benefit from inpatient 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;
(7) whether the available diversion program is appropriate to the needs of the defendant;
(8) the impact of the diversion of the defendant upon the community;
(9) recommendations, if any, of the involved law enforcement agency;
(8) recommendations, if any, of the victim;
(10) provisions for restitution; and
(11) any mitigating circumstances.
(b) A city attorney shall not enter into a diversion agreement in lieu of further criminal proceedings on a complaint alleging an alcohol related offense if the defendant:
(1) Has previously participated in diversion of an alcohol related offense;
(2) has previously been convicted of or pleaded nolo contendere to an alcohol related offense in this state or has previously been convicted of or pleaded nolo contendere to a violation of K.S.A. 8-1567 and amendments thereto or of a law of another state, or of a political subdivision thereof, which prohibits the acts prohibited by that statute; or
(3) during the time of the alleged alcohol related offense was involved in a motor vehicle accident or collision resulting in personal injury or death.
(c) "Major depressive disorder," "polytrauma," "post-traumatic stress disorder" and "traumatic brain injury" shall mean the same as such terms are defined in K.S.A. 2017 Supp. 21-6630, and amendments thereto.
History: L. 1982, ch. 144, § 14; L. 1985, ch. 48, § 11; L. 1986, ch. 185, § 1; L. 2018, ch. 106, § 18; July 1.
12-4416. Same; provisions of diversion agreement; waiver of certain rights; effect of failure to fulfill or accept agreement; duties of city attorney and division of vehicles.
(a) A diversion agreement shall provide that if the defendant fulfills the obligations of the program described therein, as determined by the city attorney, the city 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 counsel, a speedy arraignment, a speedy trial, and the right to trial by jury. The diversion agreement may include, but is not limited to, provisions concerning payment of restitution, including court costs and diversion costs, 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. 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 municipal court with which the agreement is filed.
(b) If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging a violation of a city ordinance prohibiting the acts prohibited by K.S.A. 2017 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. 2017 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.
(c) If a diversion agreement is entered into in lieu of further criminal proceedings on a complaint alleging an alcohol related offense, the diversion agreement shall include a stipulation, agreed to by the defendant and the city 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, consonant with K.S.A. 8-1567, and amendments thereto; and
(2) enroll in and successfully complete an alcohol and drug safety action program or a treatment program, or both, as provided in K.S.A. 8-1008, and amendments thereto, and specified by the agreement, and pay the assessment required by K.S.A. 8-1008, and amendments thereto.
(d) If the person entering into a diversion agreement is a nonresident, the city 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.
(e) If the city 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 municipal court and the municipal court shall stay further proceedings on the complaint. If the defendant declines to accept diversion, the municipal court shall resume the criminal proceedings on the complaint.
(f) The city attorney shall forward to the division of vehicles of the state department of revenue a copy of the diversion agreement at the time such agreement is filed with the municipal court. The copy of the agreement shall be made available upon request to any county, district or city attorney or court.
History: L. 1982, ch. 144, § 15; L. 1985, ch. 48, § 12; L. 1986, ch. 131, § 1; L. 1988, ch. 48, § 4; L. 1988, ch. 47, § 20; L. 1989, ch. 38, § 44; L. 1990, ch. 77, § 1; L. 2014, ch. 28, § 2; L. 2018, ch. 106, § 19; July 1.
12-4417. Same; condition diversion on plea prohibited; nonadmissible evidence.
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.
History: L. 1982, ch. 144, § 16; July 1.
12-4418. Failure to fulfill diversion agreement; satisfactory fulfillment; records.
(a) If the city attorney finds at the termination of the diversion period or any time prior thereto that the defendant has failed to fulfill the terms of the specific diversion agreement, the city attorney shall inform the municipal court of such finding and the municipal 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 municipal court shall dismiss with prejudice the criminal charges filed against the defendant.
(c) The city 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 subsection (d) of K.S.A. 12-4416 and amendments thereto. Such record shall be made available to any county, district or city attorney or court.
History: L. 1982, ch. 144, § 17; L. 1985, ch. 79, § 3; July 1.
12-4419. Defendants under 21 years, drug and alcohol evaluations.
(a) Except as provided in subsection (b), if a diversion agreement between a city attorney and a defendant is entered into in lieu of further criminal proceedings alleging a violation by the defendant, while under 21 years of age, of an ordinance prohibiting an act prohibited by K.S.A. 2009 Supp. 21-36a01 through 21-36a17, 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 submit to and complete an alcohol and drug evaluation by a community-based alcohol and drug safety action program certified pursuant to K.S.A. 8-1008, and amendments thereto, and to pay a fee not to exceed the fee established by that statute for such evaluation. If the city attorney finds that the defendant is indigent, the fee may be waived.
(b) 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 (a) are permissive and not mandatory.
History: L. 1989, ch. 95, § 2; L. 2009, ch. 32, § 21; July 1.