Kansas Minor in Possession Charge After a Prior DUI Diversion

Attorney Answer

Turning 21 before your court date does not help you — the offense is defined by your age at the time of the incident — and a conviction carries a mandatory driver's license suspension the judge has no power to waive. The good news is that your completed DUI diversion does not make this MIP worse.

K.S.A. 41-727 makes it unlawful for a person under 21 to possess, consume, obtain, purchase or attempt to obtain alcoholic liquor or cereal malt beverage. For someone 18 or older but under 21, it is a class C misdemeanor with a minimum $200 fine (subsection (b)). On top of the fine, the court may order 40 hours of public service and/or an alcohol education program (subsection (d)(1)), and the court shall order the Division of Vehicles to suspend driving privileges — 30 days on a first conviction, 90 days on a second, and one year on a third or subsequent (subsections (d)(2) through (4)). That suspension applies whether or not you hold a license.

The escalation ladder in subsection (d) counts prior convictions under this section — that is, prior MIPs. Your DUI diversion is not a prior MIP, so it does not move you up that ladder. In addition, K.S.A. 21-6602(d) requires the court, for a person convicted of a 41-727 violation committed while under 21, to order a certified alcohol and drug evaluation under K.S.A. 8-1008; that requirement is permissive rather than mandatory under K.S.A. 21-6602(e) where the offense involved cereal malt beverage and the person was 18 to 20.

Your diversion does matter — just not here. Under K.S.A. 8-1567(i)(1), when a court decides whether a Kansas DUI is a first, second, third or subsequent offense, it counts both prior convictions and entering into a diversion agreement in lieu of further criminal proceedings on a DUI complaint, for anything occurring on or after July 1, 2001. So your completed May 2024 diversion will count as a prior for any future Kansas DUI. Separately, K.S.A. 8-1013(b)(2)(A) counts a diversion as an alcohol- or drug-related conviction when the state counts occurrences for license actions. It does not enhance a minor-in-possession charge, which is prosecuted and penalized under K.S.A. 41-727.

One structural point worth understanding: the license suspension is ordered by the court but carried out by the Division of Vehicles, and finishing the criminal case does not by itself put your license back in your pocket. Reinstatement is a separate administrative step with its own fee and paperwork.

What you can do

1. Confirm the exact charge on your citation — MIP under K.S.A. 41-727 carries different consequences than a transporting or municipal ordinance charge, and the two are often confused. 2. Ask, before your court date, whether the prosecutor's office offers a diversion or deferral on this charge and what the eligibility rules are given your prior DUI diversion. Ask; do not assume you are eligible or ineligible. 3. Arrange your transportation now for a possible 30-day suspension — work, school, everything. That is the consequence people are least prepared for. 4. Get the alcohol and drug evaluation done rather than waiting to be ordered into it. K.S.A. 21-6602(d) points to a certified evaluation under K.S.A. 8-1008, and arriving with it completed is generally better than arriving without it. 5. Bring proof that you completed the earlier diversion in full — it is relevant to how you are treated, even though it does not enhance this charge. 6. Appear on your court date. Everything above is worse if a bench warrant issues.