What Is Drug Diversion?

Posted: January 1, 2022 at 12:00 am

If you have been charged with a drug offense, it’s vital that you get assistance from a drug crimes attorney. Anti-drug laws are complex since there is a mix of both state and federal laws to consider. While many states’ stances have softened towards certain drugs, places like Olathe, KS still operate in line with federal standards. Marijuana has yet to be legalized for either medical or recreational use in Kansas. Enforcement is strict.

However, the state has been taking steps to reduce the negative impact of enforcement and to give individuals a “second chance” when they’ve been charged with a drug offense. One such way is through new treatment options and drug diversion agreements. We’ll look at the laws that apply to you and whether you might be able to use a drug diversion agreement to avoid the worst consequences of a drug offense in Olathe, KS.

Ask a Drug Crimes Attorney: What Is Drug Diversion?

Drug Crimes in Olathe, KS

Before we go into drug diversion agreements, it helps to understand how drug law works in Kansas. Drug crimes in Olathe follow Kansas state law, which mostly adheres to federal standards. Federal law defines how drugs are classified in general and which drugs are most restricted, while state law determines the penalties and sentencing alternatives if a drug crime has been committed.

What drugs qualify as drug crimes, and what are the possible penalties if you are charged with a drug crime in Olathe? We’ll examine how both state and federal law influence the possible charges you may face.

Federal Law

The Controlled Substances Act is the most important federal law related to drug enforcement. This law established “schedules” or categories of drugs, ostensibly based on their potential for abuse. The strictest level is Schedule I, which includes drugs that are seen as having no useful medicinal applications and a high potential for abuse. Marijuana and cocaine are examples of Schedule I drugs. Schedule II includes opiate-based painkillers like oxycodone or fentanyl. You’ll find steroids and ketamine in Schedule III.  

Schedule IV and V are where you’ll find most of your everyday prescription medicines and even some restricted over-the-counter items like pseudoephedrine for sinus relief. These schedules are important to know, because possession of any of these substances can result in a drug offense charge in Kansas. However, Kansas law divides these schedules even further.

Kansas State Law

While the federal government defines which drugs belong in which schedules, states have the freedom to enforce these schedules in their own way. Of course, federal agents can always impose federal penalties for drug charges, though this is usually limited to extreme cases: ones that wouldn’t qualify for a drug diversion program. So, how does Kansas enforce drug laws? It starts with their unique take on the schedules.

Kansas imposes a Class A misdemeanor for possession of most drugs from any of the first four schedules. However, state lawmakers have specifically isolated certain drugs, such as opiates, narcotics, or stimulants from Schedule II. Possession of these substances calls for a level 4 felony charge. This adjustment was done in response to the increase in deaths from opioids in recent years. Fortunately, possession cases can qualify for drug diversion agreements.

Drug Sale Charges

Possession charges can lead to a charge of “possession with intent to distribute” if you were found in possession of an amount greater than what is deemed acceptable for personal use. Kansas has defined limits for several narcotics. For instance, if you possess more than 3.5g of cocaine, you can be charged with intent to distribute. Larger amounts that are divided into smaller packages or direct observation of the distribution of drugs will likely result in even stronger charges.

If you have been given a charge with intent to distribute, you should contact a drug crimes attorney immediately. These charges are often made on assumptions and can be defeated. This is important because drug sales charges do not qualify for drug diversion programs. These programs are a relatively new feature under Kansas law. They can help you avoid jail time and give you a second chance after a drug charge.

How Does a Diversion Agreement Work?

On July 1st, 2021, the Kansas state legislature passed a law, House Bill 2026 (HB 2026), which establishes the rules for drug abuse treatment programs and diversion agreements. To qualify, you must have been charged with a drug possession misdemeanor or felony, as described above. However, this is a “second chance” program; if you have previous felony drug convictions, you are not eligible. Previous misdemeanor convictions may exclude you from the program, but this is up to the judge’s discretion.

If you do qualify, what happens next? After your drug crimes attorney reviews your case, if the evidence against you is strong and a not-guilty verdict is unlikely, your lawyer will reach out to prosecutors to discuss the terms of a diversion agreement. If the prosecution accepts, you’ll be able to avoid jail time, though your fines may not be waived. What follows are several steps to determine if an agreement is right for you.

Conditions of a Drug Diversion Agreement

Once a diversion agreement is on the table, several things must happen before it is approved. First, you will need to have a clinical interview with a mental health professional to determine the best course of treatment for you. Their recommendations will be forwarded to a Kansas sentencing commission. Your treatment will be limited to 18 months at most. You may be required to provide regular drug tests or check in with local corrections officers periodically.

HB 2026 is retroactive up to 2003. If you were sentenced on or after November 1, 2003, then you may be eligible for a diversion agreement, even if you are already behind bars. If your agreement is approved, you will avoid prison time provided you do not commit another felony or repeatedly violate the terms of your agreement. Your agreement will also stipulate the consequences if you are discharged due to noncompliance.

Is a Drug Diversion Deal the Best Option?

For many, a drug diversion agreement may not seem like the best solution, as it will still result in fines, and conditions for compliance are strict. However, when your case seems unlikely to go in your favor, a diversion agreement is probably the best course of action. By avoiding jail time, you can keep your job and your livelihood.

Nevertheless, your lawyer will not resort to a diversion agreement unless the chances of winning a trial are extremely slim. There are many circumstances that can help you dodge a drug crime charge. For example, if you were not read your Miranda rights or if you were searched illegally, your lawyer can fight to exonerate your case entirely. We will always look for the best outcome for you.

How to Get a Drug Diversion Agreement

Now that you understand which cases are eligible for drug diversion agreements and know how they operate, how do you go about getting a deal? It starts with legal representation. Representing yourself when it comes to drug crimes is a surefire way to lose a case. You need a quality drug crimes attorney that knows Olathe, KS rules. Contact Henderson Legal Defense, LLC if you have been charged with a drug crime, we’ll help you get the best deal possible.