(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 10 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. 21-3721, 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; July 1.
(2) The preliminary examination shall be held before a magistrate of a county in which venue for the prosecution lies within 10 days after the arrest or personal appearance of the defendant. Continuances may be granted only for good cause shown.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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; July 1.
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.
History: L. 1974, ch. 243, § 2; Repealed, L. 1982, ch. 143, § 2; July 1.
(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.
History: L. 1970, ch. 129, § 22-2903; July 1.
History: L. 1970, ch. 129, § 22-2904; July 1.
(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.
(1) "District attorney" means district attorney or county attorney.
(2) "Complaint" means complaint, indictment or information.
(3) "Diversion" means referral of a defendant in a criminal case to a supervised performance program prior to adjudication.
(4) "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; July 1.
(2) 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.
(3) 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.
History: L. 1978, ch. 131, § 2; July 1.
(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) the impact of the diversion of the defendant upon the community;
(7) recommendations, if any, of the involved law enforcement agency;
(8) recommendations, if any, of the victim;
(9) provisions for restitution; and
(10) 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:
(1) The complaint alleges 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 or death; or
(2) the complaint alleges that the defendant committed a 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 or drug severity level 1 or 2 felony for drug crimes.
(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.
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. 2005, ch. 182, § 8; July 1.
(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) 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 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.
(e) 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.
(f) 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.
(g) Except as provided in subsection (h), 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 the uniform controlled substances act (K.S.A. 65-4101 et seq., and amendments thereto) or K.S.A. 41-719, 41-727, 41-804, 41-2719, 41-2720, 65-4152, 65-4153, 65-4154 or 65-4155, 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 attorney general or county or district attorney finds that the defendant is indigent, the fee may be waived.
(h) 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 (g) are permissive and not mandatory.
(i) Except diversion agreements reported under subsection (j), 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.
(j) 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; July 1.
History: L. 1978, ch. 131, § 4; L. 1982, ch. 145, § 1; L. 1982, ch. 144, § 7; L. 1985, ch. 79, § 4; Repealed, L. 1986, ch. 131, § 3; July 1.
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. 95, § 6; Repealed, L. 1990, ch. 108, § 2; July 1.
History: L. 1978, ch. 131, § 5; L. 1982, ch. 144, § 8; July 1.
(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.
History: L. 1978, ch. 131, § 7; July 1.
History: L. 1988, ch. 230, § 1; L. 1993, ch. 242, § 2; L. 1995, ch. 251, § 24; Repealed, L. 1996, ch. 215, § 7; July 1.