H. B. 2735
(By Delegates Wills, Givens, Marshall
and Perdue)
[Introduced
March 5, 2001
; referred to the
Committee on the Judiciary.]
A BILL to amend article eleven, chapter sixty-one of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
twenty-two, relating to alternative criminal prosecutorial and
sentencing tools; codifying prosecutorial authority to enter
into preprosecution or pretrial agreements with individuals;
specifying conditions; and authorizing the creation of drug
court programs.
Be it enacted by the Legislature of West Virginia:
That article eleven, chapter sixty-one of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted by adding thereto a new section, designated
section twenty-two, to read as follows:
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-22. Diversion agreements; conditions; drug court programs.
(a) A prosecuting attorney of any county of this state or a
person acting as a special prosecutor may enter into a diversion
agreement with a person under investigation or charged with an
offense against the state of West Virginia, when he or she
considers it to be in the interests of justice. The agreement
shall be in writing and shall be executed in the presence of the
person's attorney, unless the person has executed a waiver of
counsel.
(b) Any agreement entered into pursuant to the provisions of
subsection (a) of this section shall be for a period not to exceed
twenty-four months. The length of the period must be specified in
the agreement. The terms of any agreement entered into pursuant to
the provisions of this section may be similar in nature to those
for probationers as set forth in section nine, article twelve,
chapter sixty-two of this code. The agreement may include
supervision by a probation officer of the circuit court, with the
consent of the court. An agreement entered into pursuant to this
section must include a provision that the applicable statute of
limitations be tolled for the period of the agreement.
(c) A person who has entered into an agreement for diversion with a prosecuting attorney and who has successfully complied with
the terms of the agreement is not subject to prosecution for the
offense or offenses described in the agreement or for the
underlying conduct or transaction constituting the offense or
offenses described in the agreement, unless the agreement includes
a provision that upon compliance the person agrees to plead guilty
or nolo contendere to a specific related offense, with or without
a specific sentencing recommendation by the prosecuting attorney.
(d) (1) The chief judge of a circuit court in cooperation with
the prosecuting attorneys and the public defenders, if any, in the
circuit, may establish and operate a drug court program as a
diversion program or an alternative sentencing program, or both, to
address offenses that stem from substance use or abuse.
(2) For the purposes of this section, "drug court program"
means a program designed to achieve a reduction in recidivism and
substance abuse among nonviolent, substance abusing offenders by
increasing their likelihood for successful rehabilitation through
early, continuous, and intense judicially supervised treatment,
mandatory periodic drug testing and the use of appropriate
sanctions and other rehabilitation services.
(3) A drug court program shall provide, at a minimum:
(A) For successful completion of a diversion or plea agreement
in lieu of incarceration;
(B) For strong linkage between participating agencies;
(C) Access by all participating parties of a case to
information on the offender's progress;
(D) Vigilant supervision and monitoring procedures;
(E) Random substance abuse testing;
(F) Provisions for noncompliance, modification of the
treatment plan, and revocation proceedings;
(G) For its operation only when appropriate residential
treatment facilities and outpatient services are available; and
(H) For payment of court costs, treatment costs, supervision
fees, and program user fees by the offender, unless the offender is
indigent.
(4) An offender is eligible for a drug court program only if:
(A) The subject offense does not involve a crime of violence
against any person, unless there is a specific treatment program
available designed to address domestic violence and the offense is
related to domestic violence and substance abuse;
(B) The offender has no prior felony conviction in this state
or another state for a violent offense, except as may be allowed in a domestic violence treatment program authorized by the drug court
program; and
(C) The offender admits to having a substance abuse addiction.
(5) The court may provide additional eligibility criteria it
considers appropriate.
NOTE: The purpose of this bill is to provide
alternative
criminal prosecutorial and sentencing tools. It codifies
prosecutorial authority to enter into preprosecution or pretrial
agreements with individuals and authorizes the creation of drug
court programs.
This section is new; therefore, strike-throughs and
underscoring have been omitted.
This bill is recommended for passage in the 2001 regular
session by the Joint Interim Committee on Substance Use and Abuse.
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