Appellate Court Rules No 6th Amendment Right for DUI Diversion Proceeding

The Constitution of the United States is the cornerstone document of not only our legal system, but also of our government. The Constitution, which went into effect back in 1789, not only outlines the three basic branches of our federal government, it also protects what most Americans know as each citizen’s “fundamental rights”. These rights are embodied in the first ten amendments to the Constitution and are collectively known as the Bill of Rights.

Most Americans know that the 6th Amendment of the Constitution protects the rights of criminal defendants and includes the right to be represented by an attorney. However, many Americans are not aware that the right ‘to an attorney in a legal proceeding’ under the 6th Amendment does not apply to all types of criminal cases. Recently, the Kansas Appellate Court addressed the issue in the case of State of Kansas vs. Tims of whether a criminal defendant has the right to counsel under the 6th amendment in a DUI diversion proceeding. The relevant facts of the case are as follows:

Daniel Tims was arrested and charged with DUI in 2012. However, this was not Tims’ first DUI. Tims had been previously found guilty of DUI in 2004 and entered into a diversion agreement on another DUI in 2002. The State charged Tims 2012 DUI as a felony since under Kansas State law a third DUI conviction is considered a felony if the person had a prior DUI conviction in the proceeding 10 years. Tims’ attorney filed a motion with the court to exclude Tims’ 2002 DUI diversion from his criminal history arguing it was invalid as Tims’ was without counsel. The district court agreed with Tims’ position and granted his motion. Although Tims was found guilty on the 2012 DUI charge, he was sentenced to a 2nd conviction misdemeanor as opposed to a 3rd conviction felony, since his uncounseled DUI was not considered as a conviction. The State appealed on the basis that the sentence was illegal.

The appellate court concluded that a criminal defendant does not have the right to appointed counsel under the 6th amendment. The Appellate court did determine that a defendant does however, have the right to retain private counsel if he or she so desires. The court found that during the diversion conference, Tims knowingly and voluntarily waived his right to counsel. The court found that Tims’ waiver of his right to counsel was valid and remanded the case for resentencing as a 3rd conviction felony DUI.

The most important lesson to learn from this court decision is that it is always a good idea to consult with an experienced Kansas DUI Defense Attorney as soon as possible after your arrest. Only a seasoned DUI defense attorney will be able to educate you on the law and help you understand and evaluate your legal options. Another thing to remember is that if you accept and complete a DUI diversion it can and most likely will be used against you in the event you are charged with another DUI in the future. This means that you must take each and every DUI seriously.  Do not be fooled into thinking that a first DUI does not really matter.

If you have been arrested for driving while under the influence of alcohol or drugs, it is imperative that you speak with an experienced Kansas DUI Defense Attorney as soon as possible. For more than thirty five years, attorney Charles E. Whitman has provided aggressive representation for individuals throughout Lawrence and Northeast Kansas who were arrested for DUI. To schedule your free and confidential consultation, contact the Whitman Law Offices today at (785) 843-9460. At the Whitman Law Offices, we will work hard to make sure that your rights are protected. Do not trust your case to just any attorney. Call our seasoned DUI defense attorneys today!


Comments are closed.