The act of granting a pretrial diversion of criminal charges, has historically been described as “fixing a ticket”. We find no statutory authority for such a practice.
By LawReader Senior Editor Stan Billingsley - Oct. 18, 2007
A Kentucky newspaper carried a story this week, which has resulted in users’ questioning LawReader about the authority for a County Attorney to operate a pretrial diversion program and then to donate the money raised to MADD, (Mother’s Against Drunk Drivers) as a condition for misdemeanor charges to be diverted. In the news story, the prosecutor took credit for having raised $36,000 for MADD since 2005, thru his pretrial diversion program.MADD uses the money donated by the County Attorney (from funds raised from defendants as a condition for the diversion (i.e. dismissal) of criminal charges,) “…for its outreach mission, including the annual MADD candlelight vigil and school education programs.”We note that all prosecutors have certain inherent powers, as do judges, which are not spelled out in the statutory law. That being said it would appear that only Commonwealth Attorneys have clear statutory authority to operate a pre-trial diversion program, and then diversions must be approved by the court.In l998 the General Assembly enacted KRS 533.250 through KRS 533.262 which established pretrial diversion and set forth the criteria and procedure for its use. However, the pretrial diversion program created by the General Assembly only applies to Class D Felony offenses. (Clements v. Com., 203 S.W.3d 710 (Ky. App., 2006) and requires court approval.
When there is a diversion of a DUI charge, then even more serious questions about the practice arise.
KRS 189A.120 prohibits a prosecutor from amending a DUI charge to a lesser offense, and charges him with the duty to not agree to any amendment made by the trial court.
See: KRS 189A.120 Prosecutor’s duties with regard to amendment of charges - Amendment of blood alcohol concentration — Record of charges and amendments.
(1) When an alcohol concentration for a person twenty-one (21) years of age or older in a prosecution for violation of KRS 189A.010 is 0.08 or above, is 0.02 or above for a person under the age of twenty-one (21), or when the defendant, regardless of age, has refused to take an alcohol concentration or substance test, a prosecuting attorney shall not agree to the amendment of the charge to a lesser offense and shall oppose the amendment of the charge at trial, unless all prosecution witnesses are, and it is expected they will continue to be, unavailable for trial.
The Kentucky DUI statute is found in KRS Chapter 189A. Under that law amendment or suspension to lesser charges is forbidden.
See: Krs 189A.010 (9):
(9) When sentencing persons under subsection (5)(a) of this section, at least one (1) of the penalties shall be assessed and that penalty shall not be suspended, probated, or subject to conditional discharge or other form of early release.
This provision forbidding “suspension, probation or conditional discharge or other form of early release” applies to any DUI offense. But a careful review of the wording in KRS 189A.010(9) requires consideration of the words, “When sentencing persons…”. Those words are directed to the trial judge since he is the only person who gets to “sentence”.
A diversion of the charges prevents a court from ever hearing the charge, and therefore there is no participation or involvement of the trial judge in any misdemeanor diversion decision. To justify a diversion of the charges would require one to believe that “when sentencing persons” applied only to Judges, but that prosecutors by avoiding presentation of the case to the court could bypass all court procedures.
The language in Flynt v. Commonwealth of Kentucky, 105 S.W.3d 415 (Ky., 2003), discusses a pretrial diversion procedure under KRS 533, and says the Circuit Court must approve the diversion agreement. Of course KRS 533 deals only with Class D felony diversions and no authority is granted by Chapter 533 for the Circuit Court to grant DUI diversions of misdemeanor offenses. Other rulings would allow the Circuit Court to sentence in a misdemeanor case if that case originally came to the Circuit Court attached with a felony. But in a case which originally started out as a misdemeanor and not attached to a felony offense, would be in the sole jurisdiction of the District Court.
However, any DUI misdemeanor that happened to be tried by the Circuit Court would still be subject to the prohibition of amendment of DUI offenses as found in KRS 189A.010 (5) thru (9).
In the only statute authorizing pretrial diversion, the General Assembly limited this procedure to Class D felonies tried by Circuit Courts, and required approval of the diversion by the court. The pretrial diversion program operated by a County Attorney has no statutory foundation. There is no case law to our knowledge that authorizes such a program. And since the case never gets to the District Court, there is no monitoring by the District Judge.The statute prohibiting amendments in DUI cases, appears to be directed towards the trial court. Technically when a prosecutor himself refuses to file the case with the court, or refuses to prosecute, and instead enters into a diversion agreement with the defendant, the court is effectively bypassed. To justify a pretrial diversion program for DUI offenses one must impose a very narrow reading of the statute to justify the County Attorney doing what is forbidden for the Trial Judge to do.The only basis for a pretrial diversion program operated by a County Attorney if justified, must come from his inherent powers. Any prosecutor is charged with the duty not to prosecute any offense for which the facts do not provide probable cause. But the correct procedure in those instances would be a dismissal of the charge, not diversion.Diversion implies that there are sufficient facts to justify a prosecution (i.e. probable cause exists) and the person could be tried. The diversion process inherently suggests that since a penalty or payment of some sort is sometimes imposed, that the defendant did something wrong. Further in a diversion program, there is always some condition imposed, and at least the implication exists that if the diversion program rules are not followed by the defendant, that the prosecutor will punish the defendant by prosecuting the defendant for the original diverted charge.The next issue presented by the donation to MADD is the total lack of authority in the law for a prosecutor (or a judge) to operate a program where they coerce “donations” from defendants in exchange for dismissal or amendment down of criminal charges, and for the donation then to be paid to private organizations such as MADD.
All fines collected by the courts are paid into the General Fund. There is no law allowing the courts to collect fines, penalties, or diversion fees, and then bypass the General Fund and donate the money to a charity.
MADD by accepting donations of cash (made by defendants who were cited by a police officer for DUI), makes them complicit in encouraging a practice where persons charged with DUI offenses are allowed to go free of punishment, free of license suspension, free of jail time, and in violation of the clear intent of KRS 189A.090. The practice clearly operates to allow people charged with DUI offenses to make a donation to MADD, and avoid prosecution. This is like the church selling dispensations from sin.
For years after the current “Slammer Bill” was endorsed by MADD and adopted by the General Assembly in l984, the anti-drunk driving organization frequently attended court rooms and informed the press if a Judge amended a DUI charge. That practice has apparently given way to their silence being purchased by cold cash.
We concede that diversion is not the real problem. This tool when properly used by prosecutors often is a reasonable alternative to the court process. We have to raise an eyebrow however, when the process is used to immunize drunk drivers from prosecution when the General Assembly has so strongly outlawed the practice.
If a judge is forbidden from amending a DUI charge, and is forbidden from collecting “donations” for granting the amendment, and then giving this coerced money to a politically active private organization, then prosecutors should be forbidden to do the same thing.
The $36,000 accepted by MADD, according to the newspaper article admittedly came “from fees paid by participants in the county attorney’s DUI diversion program for first - time offenders.”
This incident reminds one of the benefit the public derives from the Judicial Conduct Commission. There is no such body to hear complaints against Prosecutors.
As a former member of the Judicial Conduct Commission I recall that when prosecutors felt a judge had done something improper they didn’t hesitate to complain to the Judicial Conduct Commission. If it serves the public to have a Judicial Conduct Commission, then the same type of commission ought to be created by the legislature to monitor the conduct of prosecutors.
This incident reminds one of the benefit the public derives from the Judicial Conduct Commission. There is no such body to hear complaints against Prosecutors.
This incident reminds one of the benefit the public derives from the Judicial Conduct Commission. There is no such body to hear complaints against Prosecutors. As a former member of the Judicial Conduct Commission I recall that when prosecutors felt a judge had done something improper they didn’t hesitate to complain to the Judicial Conduct Commission. If it serves the public to have a Judicial Conduct Commission, then the same type of commission ought to be created by the legislature to monitor the conduct of prosecutors.
Authorities:
Clements v. Com., 203 S.W.3d 710 (Ky. App., 2006)
In 1998, the General Assembly enacted KRS 533.250 through KRS 533.262 which established pretrial diversion and set forth the criteria and procedure for its use. Pretrial diversion allows an individual charged with certain Class D felonies who meets the statutory criteria to enter a guilty plea and be placed in a pretrial diversion program.
If the individual successfully completes pretrial diversion, then his felony charge will be “dismissed-diverted”. In essence, the record of the individual’s felony conviction is expunged.
Flynt v. Commonwealth of Kentucky, 105 S.W.3d 415 (Ky., 2003)
By approving a defendant’s application for pretrial diversion, a circuit court permits the defendant to embark upon a path, which, if successfully negotiated, will result in the defendant’s charges being “dismissed-diverted” — a status indistinguishable from any other dismissal as it is defined by statute as one that “shall not constitute a criminal conviction.”
