In the State of Kansas, any defendant charged with their third DUI will be charged with a felony. This means that a defendant must have two prior DUI convictions in order to be charged with a felony DUI. The problem is determining whether a prior adjudication counts as a conviction for the purposes of determining if the current DUI should be charged as a felony.

Up until the Kansas Court of Appeals published their opinion in State of Kansas v. Tims on January 7, 2014, a defendant who had not had a lawyer’s assistance on a prior DUI conviction was able to get that DUI conviction disregarded for the purposes of calculating the level of the current DUI offense. For example, if a defendant was being charged with their third DUI, but one of their previous DUI convictions was entered without the assistance of a lawyer, that prior conviction did not count and the defendant could only be charged as though the current DUI was a second DUI, which is a misdemeanor rather than a felony.

State v. Tims added the new requirement that, “[a]n uncounseled DUI diversion may be used as a prior conviction to enhance sentencing in a subsequent DUI conviction so long as no imprisonment was actually imposed in the uncounseled diversion. Under these circumstances, the Sixth Amendment right to counsel does not apply.” In other words, if a defendant took a diversion on a prior DUI without a lawyer’s assistance and the diversion did not result in any jail time, the fact that the defendant did not have a lawyer will no longer be a means of getting the prior DUI conviction discounted for the purpose of calculating the number of prior DUIs.

The Court went on to opine that, “[a] diversion is not akin to a suspended sentence or probation. The crucial distinction between a diversion agreement and a suspended sentence or probation is that, at the time a defendant enters into a diversion agreement, no adjudication of guilt is entered, eligibility for imprisonment is not established, and no prison sentence is determined.”

What will be confounding to many DUI defendants and their attorneys is if the diversion agreement does not adjudicate guilt, then how can it be counted as a prior conviction for the purposes of calculating prior DUIs? It will be interesting to see if this issue is ever resolved by the Kansas Supreme Court.

The next issue addressed by State v. Tims is that since prior convictions determine the severity level of the DUI being charged, the issue of the severity level must be challenged at the preliminary hearing phase of litigation – not at trial or at sentencing. The Court held that, “A defendant charged with felony driving under the influence (DUI) based on prior DUI convictions who wishes to challenge the felony classification grounds of the charge should do so at the preliminary hearing. Once a defendant has waived his or her preliminary hearing, the right to seek dismissal of a DUI charge on felony classification grounds is also waived. By waiving the preliminary hearing, a defendant consents to a finding that probable cause existed to establish that a felony was committed. Since proof of a prior DUI conviction is not an element of DUI to be established at trial and need not be brought out until the sentencing phase, a defendant must challenge a prior DUI conviction at sentencing to preserve the issue for appellate review.”

This means that in order to challenge the severity level of the DUI being charged, a defendant must raise this challenge first at the preliminary hearing phase of litigation and again at sentencing after being convicted at trial in order to preserve the issue for appellate review.