Senate Bill No. 516
(By Senators Foster, Kessler, Jenkins, Deem, Hall, Wells, Green,
Prezioso and Plymale)
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[Introduced March 9, 2009; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §62-15-1, §62-15-2,
§62-15-3, §62-15-4, §62-15-5, §62-15-6, §62-15-7, §62-15-8,
§62-15-9, §62-15-10, §62-15-11, §62-15-12 and §62-15-13, all
relating to the enactment of the West Virginia Drug Offender
Accountability and Treatment Act; providing for the structure
of drug courts; targeting, eligibility and participation in
drug courts by offenders; providing treatment and services to
participants; establishing drug-testing procedures; providing
oversight by the Supreme Court of Appeals; collecting and
maintaining information on drug court candidates and
participants; funding; providing for immunity from liability;
and enforcing the act's provisions.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §62-15-1, §62-15-2, §62-15-3, §62-15-4, §62-15-5, §62-15-6, §62-15-7, §62-15-8,
§62-15-9, §62-15-10, §62-15-11, §62-15-12 and §62-15-13, all to
read as follows:
ARTICLE 15. DRUG OFFENDER ACCOUNTABILITY AND TREATMENT ACT.
§62-15-1. Short title.
This article shall be known and may be cited as the "West
Virginia Drug Offender Accountability and Treatment Act".
§62-15-2. Definitions.
For the purposes of this article:
(1) "Assessment" means a diagnostic evaluation to determine
whether and to what extent a person is a drug offender under this
article and would benefit from its provisions. The assessment
shall be conducted in accordance with the standards, procedures,
and diagnostic criteria designed to provide effective and
cost-beneficial use of available resources.
(2) "Combination program" means a court ordered program which
may include preadjudication, post-adjudication, and/or reentry.
(3) "Continuum of care" means a seamless and coordinated
course of substance abuse education and treatment designed to meet
the needs of drug offenders as they move through the criminal
justice system and beyond, maximizing self-sufficiency.
(4) "Controlled substance" means a drug or other substance for
which a medical prescription or other legal authorization is
required for purchase or possession.
(5) "Drug" means a controlled substance, an illegal drug, or
other harmful substance.
(6) "Drug court" means a judicial intervention process that
incorporates the Ten Key Components and may include
preadjudication, post-adjudication, reentry; or a combination
program.
(7) "Drug court team" consists of the following members who
are assigned to the drug court:
(A) The judge, which may include a magistrate, commissioner,
or other hearing officer;
(B) The prosecutor;
(C) The public defender or member of the criminal defense bar;
(D) A representative from the day report center/community
corrections, if operating in the jurisdiction;
(E) A law-enforcement officer;
(F) The drug court coordinator;
(G) A representative from the department of probation or
parole;
(H) Substance abuse treatment provider(s); and
(I) Any other persons selected by the drug court team.
(8) "Drug offender" means an adult person charged with a
drug-related offense or an offense in which substance abuse is
determined from the evidence to have been a significant factor in
the commission of the offense.
(9) "Dual Diagnosis" means a substance abuse and cooccurring
mental health disorder.
(10) "Local advisory committee" may consist of the following
members or their designees:
(A) Chief judge of the circuit, who shall serve as chair;
(B) Drug court judge(s), who shall serve as chair in the
absence of the chief judge;
(C) Drug court magistrate(s);
(D) Prosecutor;
(E) Public defender;
(F) Drug court coordinator;
(G) Criminal defense bar;
(H) Circuit clerk;
(I) Day report center director;
(J) Probation and/or parole;
(K) Law enforcement;
(L) Substance abuse treatment provider(s);
(M) Corrections representative; and
(N) Such other person(s) as the chair deems appropriate.
(11) "Illegal drug" means a drug whose manufacture, sale, use
or possession is forbidden by law;
(12) "Memorandum of Understanding" means a written document
setting forth an agreed upon procedure.
(13) "Offender" means an adult charged with a criminal offense punishable by incarceration.
(14) "Other harmful substance" means a misused substance
otherwise legal to possess, including alcohol.
(15) "Preadjudication" means a court order requiring a drug
offender to participate in drug court before charges are filed or
before conviction.
(16) "Post-adjudication" means a court order requiring a drug
offender to participate in drug court after having entered a plea
of guilty or
nolo contendre or having been found guilty.
(17) "Recidivism" means any arrest for a serious offense
(carrying a sentence of at least one year) resulting in the filing
of a charge.
(18) "Reentry" means a court order requiring a drug offender
to participate in drug court upon release from a sentence of
incarceration.
(19) "Relapse" means a return to substance use after a period
of abstinence.
(20) "Split sentencing" means a sentence which includes a
period of incarceration followed by a period of supervision.
(21) "Staffing" means the meeting before a drug offender's
appearance in drug court in which the drug court team discusses a
coordinated response to the drug offender's behavior.
(22) "Substance" means drug.
(23) "Substance abuse" means the illegal or improper consumption of a drug.
(24) "Substance abuse treatment" means a program designed to
provide prevention, education, and therapy directed toward ending
substance abuse and preventing a return to substance usage.
(25) "Ten Key Components" means the following benchmarks
intended to describe the very best practices, designs, and
operations of drug courts. These benchmarks are meant to serve as
a practical, yet flexible framework for developing effective drug
courts in vastly different jurisdictions and to provide a structure
for conducting research and evaluation for program accountability:
(A) Drug courts integrate alcohol and other drug treatment
services with justice system case processing;
(B) Using a nonadversarial approach, prosecution and defense
counsel promote public safety while protecting participants' due
process rights;
(C) Eligible participants are identified early and promptly
placed in the drug court program;
(D) Drug courts provide access to a continuum of alcohol,
drug, and other related treatment and rehabilitation services;
(E) Abstinence is monitored by frequent alcohol and other drug
testing;
(F) A coordinated strategy governs drug court responses to
participants' compliance;
(G) Ongoing judicial interaction with each drug court participant is essential;
(H) Monitoring and evaluation measure the achievement of
program goals and gauge effectiveness;
(I) Continuing interdisciplinary education promotes effective
drug court planning, implementation and operations; and
(J) Forging partnerships among drug courts, public agencies
and community-based organizations generates local support and
enhances drug court effectiveness.
§62-15-3. Policy and goals.
(a) The Legislature recognizes that a critical need exists in
this state for the criminal justice system to reduce the incidence
of substance abuse and the crimes resulting from it. For the
criminal justice system to maintain credibility, all drug offenders
must be held accountable for their actions. A growing body of
research demonstrates the impact of substance abuse on public
safety, personal health and health care costs, the spread of
communicable disease, educational performance and attainment, work
force reliability and productivity, family safety and financial
stability. Requiring that accountability and rehabilitating
treatment, in addition to or in place of, conventional and
expensive incarceration, will promote public safety, the welfare of
the individuals involved, reduce the burden upon the public
treasury and benefit the common welfare of this state, the goals of
this article shall include:
(1) To enhance community safety and quality of life for
citizens;
(2) To reduce recidivism;
(3) To reduce substance abuse;
(4) To increase the personal, familial and societal
accountability of drug offenders;
(5) To restore drug offenders to productive, law-abiding, and
taxpaying citizens;
(6) To promote effective interaction and use of resources
among criminal justice and community agencies;
(7) To reduce the costs of incarceration; and
(8) To improve the efficiency of the criminal justice system
by enacting an effective methodology.
(b) The Legislature finds that, as a general proposition, a
drug offender should not be permitted to exit the criminal justice
system until he or she has undergone an assessment and an
appropriate form of treatment. The decision whether that treatment
is provided in jail, prison, or elsewhere should be made by the
courts based not only upon traditional sentencing criteria but also
upon the professional diagnostic assessment of each drug offender
and the specific recommendations of the assessment. The criminal
justice system should be used constructively to motivate drug
offenders to accept treatment and engage in the treatment process.
(c) The Legislature further finds that while working in drug court reshapes the traditional roles of judges and lawyers, ethical
duties do not significantly differ from those in traditional
courtrooms. Drug court judges and lawyers must adhere to the
standards set forth in the Code of Judicial Conduct, the Rules of
Professional Conduct, and the Standards of Professional Conduct.
The proper exercise of the roles of judge or lawyer in the drug
court need not conflict with the professionals' ethical obligations
and can enable judges and attorneys to fulfill the highest
aspirations of their professional ethics while embarking on an
innovative way to break the cycle of substance abuse and crime.
Drug court judges and attorneys must remain continually cognizant
of the due process rights guaranteed to all citizens and the
state's substantial interest in maintaining effective and efficient
judicial and penal systems.
§62-15-4. Court structure.
(a) Each judicial circuit or two or more adjoining judicial
circuits may establish a drug court(s) or regional drug court(s)
program under which drug offenders will be processed to address
appropriately, the identified substance abuse problem as a
condition of pretrial release, probation, jail, prison, parole or
other release from a correctional facility.
(b) Participation in drug court, with the consent of the
prosecution and the court, shall be pursuant to a written
agreement. A drug offender may participate in a preadjudication, post-adjudication, reentry, or combination program.
(c) A drug court may grant reasonable incentives under the
written agreement if it finds that the drug offender:
(1) Is performing satisfactorily in drug court;
(2) Is benefitting from education, treatment and
rehabilitation;
(3) Has not engaged in criminal conduct; and
(4) Has not violated the terms and conditions of the
agreement.
(d) A drug court may impose reasonable sanctions, including
incarceration or expulsion from the program, on the drug offender
under the written agreement if it finds that the drug offender:
(1) Is not performing satisfactorily in drug court;
(2) Is not benefitting from education, treatment or
rehabilitation;
(3) Has engaged in conduct rendering him or her unsuitable for
the program;
(4) Has otherwise violated the terms and conditions of the
agreement; or
(5) Is for any reason unable to participate.
(e) Upon successful completion of drug court, a drug
offender's case shall be disposed of by the judge in the manner
prescribed by the agreement and by the applicable policies and
procedures adopted by drug court. This may include, but is not limited to, withholding criminal charges, dismissal of charges,
probation, deferred sentencing, suspended sentencing, split
sentencing, or a reduced period of incarceration.
(f) Drug court shall include the Ten Key Components and the
drug court team shall act to ensure compliance with them.
(g) Cases handled pursuant to this article shall be calendared
on dedicated dockets, set aside from other criminal cases.
(h) Each local jurisdiction that intends to establish a drug
court, or continue the operation of an existing drug court, shall
establish a local drug court team.
(i) The drug court team shall, when practicable, conduct a
staffing prior to each drug court session to discuss and provide
updated information regarding drug offenders. After determining
their progress or lack thereof, the drug court team shall agree on
the appropriate incentive or sanction to be applied. If the drug
court team cannot agree on the appropriate action, the court shall
make the decision based on information presented in the staffing.
(j) Nothing contained in this article shall confer a right or
an expectation of a right to participate in a drug court nor does
it obligate a drug court to accept every drug offender.
(k) Neither the establishment of a drug court nor anything
herein shall be construed as limiting the discretion of the
jurisdiction's prosecutor to act on any criminal case which he or
she deems advisable to prosecute.
(l) Each drug court judge may establish rules and may make
special orders and rules as necessary that do not conflict with
rules and orders promulgated by the Supreme Court of Appeals which
has administrative authority over the courts. The Supreme Court of
Appeals shall provide uniform referral, procedure and order forms
that shall be used in all drug courts in this state.
(m) Each drug offender shall contribute to the cost of the
substance abuse treatment in accordance with subsection (c),
section ten of this article.
§62-15-5. Targeting and eligibility.
(a) Every person arrested within the jurisdiction of an
operating drug court for a crime punishable by incarceration, shall
be required to submit to an observed drug test within twenty-four
hours of arrest. An offender who posts bail shall submit to an
observed drug test as a condition of pretrial release.
(b) An offender shall be required to undergo an assessment if:
(1) The results of a drug test are positive;
(2) The offender requests an assessment;
(3) The offender admits to substance use or abuse within the
year preceding the arrest for the present charge;
(4) The present charge involves a violation of the controlled
substances or impaired driving statutes;
(5) The offender has, within the past five years been
convicted, or received a suspended imposition of sentence in this state, or any other state, or a federal court involving a violation
described above, in subsection (b)(4); or
(6) The offender refuses to undergo a drug test as required by
this article.
(c) Notwithstanding the requirements of subsection (a), the
court shall order an offender to undergo an assessment if the court
has reason to believe the offender is a substance abuser or would
otherwise benefit from undergoing an assessment.
(d) If an offender is required to undergo an assessment and
has not done so at the time of the offender's release prior to
trial or on probation, submission to an assessment shall be a
condition of the offender's pretrial release or probation.
(e) Unless otherwise ordered by the court, the drug test
results and assessment of an offender shall be provided within
fourteen days of the offender's initial appearance before the drug
court team, parole board, or other appropriate authority in the
case of an inmate.
(f) The assessment shall include recommendations concerning:
(1) The offender's need for substance abuse treatment;
(2) The level of risk the offender presents to the community
and others; and
(3) The appropriate and available course of treatment
necessary to address the offender's needs, including any
cooccurring mental health needs.
(g) Anyone receiving drug test results, an assessment, or
other personal medical information shall maintain that information
in accordance with federal and state confidentiality laws.
(h) A court in a jurisdiction wherein a drug court is
operating shall immediately order a drug offender to participate in
drug court if:
(1) An assessment reveals that an offender is a substance
abuser and presents at no higher than low to moderate risk to the
community and others, and the court recommends that the drug
offender participate in drug court;
(2) The court has reason to believe that participation in drug
court will benefit the drug offender by addressing his or her
substance abuse;
(3) The prosecutor consents to the drug offender's
participation in the program; and
(4) The drug offender's case is handled pursuant to subsection
(b), section four of this article;
(i) Where the court determines pursuant to subsection (a) of
this section that participation in drug court will not benefit the
offender, or the offender is not an appropriate candidate,
notwithstanding a recommendation by the assessment that the
offender participate in such treatment program, the court shall
record its determination in the confidential treatment file and
make a general finding on the record that the offender is ineligible to participate in drug court.
§62-15-6. Treatment and support services.
(a) As part of the diagnostic assessments, the individual
assessment should make specific recommendations to the drug court
team regarding the type of treatment program and duration necessary
so that a drug offender's individualized needs can be addressed.
These assessments and resulting recommendations should be based
upon objective medical diagnostic criteria. Treatment
recommendations accepted by the court, pursuant to the provisions
of this article, shall be deemed to be reasonable and necessary.
(b) A drug court making a referral for substance abuse
treatment shall refer the drug offender to a program that is
licensed, certified, or approved by the court.
(c) The court shall determine which treatment programs are
authorized to provide the recommended treatment to drug offenders.
The relationship between the treatment program and the court should
be governed by a Memorandum of Understanding, which should include
the timely reporting of the drug offender's progress or lack
thereof to the drug court.
(d) It is essential to provide offenders with adequate support
services and aftercare.
(e) Recognizing that drug offenders are frequently dually
diagnosed, appropriate services should be made available, where
practicable.
(f) Recognizing that the longer a drug offender stays in
treatment, the better the outcome, the length of stay in treatment
should be determined by the drug court team based on individual
needs and accepted practices:
Provided, That drug court
participation shall not be less than one year duration.
§62-15-7. Drug testing.
(a) The drug court team shall ensure fair, accurate, and
reliable drug testing procedures, following collection procedures
approved by the Supreme Court of Appeals.
(b) The drug offender shall be ordered to submit to frequent,
random, and observed drug testing to monitor abstinence.
(c) Anyone in receipt of drug test results shall maintain the
information in compliance with the requirements of federal and
state confidentially laws.
(d) The drug offender shall be responsible for costs, pursuant
to subsection (c), section ten of this article.
§62-15-8. Governance.
(a) The Supreme Court of Appeals will be responsible for court
funding, administration, and continuance or discontinuance of drug
courts, mental health courts, or other problem-solving courts. The
administrative director, or his or her designee, will oversee the
planning, implementation, and development of these courts as the
administrative arm of the Supreme Court of Appeals.
(b) The administering drug court judge or chief judge in each drug court's jurisdiction shall appoint a local advisory committee.
The advisory committee shall ensure quality, efficiency, and
fairness in planning, implementing, and operating drug courts that
serve the jurisdiction, and the provision of a full continuum of
care for drug offenders.
(c) The local advisory committee shall annually report to the
supreme court of appeal's administrative director, or designee, by
December 31 of each year. The report shall include:
(1) A description of the drug court(s) operating within the
jurisdiction;
(2) Participating judge(s);
(3) Community involvement;
(4) Education and training;
(5) Use of existing resources;
(6) Collaborative efforts; and
(7) An evaluation of the critical data elements required by
subsection (a), section nine of this article.
§62-15-9. Program integrity and offender accountability.
(a) Drug courts shall collect and maintain the following
information and any other information required by the Supreme Court
of Appeals or its administrative office:
(1) Prior criminal history;
(2) Prior substance abuse treatment history, including
information on the drug offender's success or failure in those programs;
(3) Employment, education, and income histories;
(4) Gender, race, ethnicity, marital and family status, and
any child custody and support obligations;
(5) The number of (both addicted and healthy) babies born to
female drug offenders during and after participation in drug court;
(6) (A) Instances of relapse occurring before, during, and
after successful completion of drug court. Relapse shall be
measured at intervals of one, two and five years after successful
graduation.
(B) Instances of relapse occurring before, during, and after
a drug offender's failed participation in drug court.
(7) (A) Instances of recidivism occurring before, during, and
after successful completion of drug court. Recidivism shall be
measured at intervals of one, two, and five years after successful
graduation.
(B) Instances of recidivism occurring before, during, and
after a drug offender's failed participation in drug court.
(8) The number of offenders screened for eligibility, the
number of eligible drug offenders who were and were not admitted
and their case dispositions;
(9) The drug of choice and the estimated daily financial cost
to the drug offender at the time of entry into the program;
(10) Costs of operation and sources of funding.
(b) A drug offender may be required as a condition of
pretrial, probation, or parole to provide the information described
in this section. The collection and maintenance of information
under this section shall be collected in a standardized format
according to applicable guidelines set forth by the Supreme Court
of Appeals.
(c) To protect drug offenders' privacy in accordance with
federal and state confidentiality laws, treatment records must be
kept in a secure environment, separated from the court records to
which the public has access.
(d) Drug courts shall comply with all state and federal due
process requirements.
(e) The offender shall be responsible for costs in accordance
with subsection (c), section ten of this article.
§62-15-10. Funding.
(a) A drug offender shall pay a reasonable portion of the cost
to participate. The costs assessed shall be compensatory and not
punitive in nature and shall take into account the drug offender's
ability to pay. Upon a showing of indigence or as an incentive in
drug court, the drug court may reduce or waive costs under this
subsection. Any fees received by the court from an offender shall
not be considered court costs, charges, or fines.
(b) Nothing in this article shall prohibit local advisory
committees or drug court teams from obtaining supplemental funds or exploring grants to support drug courts.
(c) Nothing in this article shall be construed to supplant
funds currently utilized for drug courts.
§62-15-11. Immunity from liability.
(a) Any individual who, in good faith, provides services
pursuant to this article, shall not be liable in any civil action.
The grant of immunity provided in this subsection shall extend
to all employees and administrative personnel.
(b) Any qualified person who obtains, in a medically accepted
manner, a specimen of breath, blood, urine, or other bodily
substance pursuant to any provision of this article shall not be
liable in any civil action.
§62-15-12. Statutory construction.
The provisions of this article shall be construed to
effectuate its remedial purposes.
§62-15-13. Enforcement.
Violations of any of the provisions herein shall be referred
to the appropriate court or other responsible governing body for
resolution.
NOTE:
This bill was recommended for introduction and passage
by the Joint Standing Committee on the Judiciary. The concepts for
this model act were devised by the National Association of Drug
Court Professionals (NADCP) Board of Directors' Drug Policy
Committee. The model act is the product of a series of three focus
groups of drug court professionals, state legislators, and academic
professors convened by the National Drug Court Institute (NDCI), a
division of the NADCP.
This model act establishes a structural framework to ensure
that Constitutional rights are protected and that each court
follows similar sentencing and operational guidelines. The primary
objective this model legislation is to address the challenges
created by the serious problem of addiction in our judicial system.
The model legislation is intended to result in: (1) A
reduction in recidivism; (2) cost savings and benefits resulting
from fewer incarcerations; and (3) encouraging the productivity of
citizens while spending tax dollars in the most effective way.
§62-15-1, §62-15-2, §62-15-3, §62-15-4, §62-15-5, §62-15-6,
§62-15-7, §62-15-8, §62-15-9, §62-15-10, §62-15-11, §62-15-12 and
§62-15-13
are new; therefore, strike-throughs and underscoring have
been omitted.