H. B. 4514
(By Delegates Amores, Hrutkay, Craig, Mahan,
Pethtel, DeLong and Schadler)
(Originating in the Committee on the Judiciary)
[February 18, 2004]
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §17C-5C-1, §17C-5C-2,
§17C-5C-3, §17C-5C-4, §17C-5C-5, §17C-5C-6, §17C-5C-7, §17C-
5C-8, §17C-5C-9, §17C-5C-10, §17C-5C-11, §17C-5C-12, §17C-5C-
13, §17C-5C-14, §17C-5C-15 and §17C-5C-16, all relating to
establishing a specialized court referral officer program to
promote the screening, evaluation, education, treatment and
rehabilitation of persons who are repeat offenders or serious
offenders under provisions related to driving while under the
influence of alcohol, controlled substances or drugs.
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 §17C-5C-1, §17C-5C-2,
§17C-5C-3, §17C-5C-4, §17C-5C-5, §17C-5C-6, §17C-5C-7, §17C-5C-8,
§17C-5C-9, §17C-5C-10, §17C-5C-11, §17C-5C-12, §17C-5C-13, §17C-5C-14, §17C-5C-15 and §17C-5C-16, all
to read as follows:
ARTICLE 5C. COURT REFERRAL OFFICER PROGRAM FOR CERTAIN OFFENSES
RELATED TO DRIVING UNDER THE INFLUENCE.
§17C-5C-1. Legislative findings and intent.
(a) The legislature finds that a specialized system for
screening, evaluating, educating, treating and rehabilitating
repeat offenders and other serious offenders arrested for offenses
related to driving under the influence of alcohol, controlled
substances or drugs is required.
(b) It is therefore the intent of the Legislature to establish
a specialized court referral officer program to promote the
screening, evaluation, education, treatment and rehabilitation of
persons whose use or dependency on alcohol, controlled substances
or drugs directly or indirectly contributed to the commission of
certain serious offenses or repeat offenses related to driving
under the influence of alcohol, controlled substances or drugs, and
to establish mandatory alcohol and drug abuse treatment programs to
provide treatment and rehabilitation for these identified
offenders.
§17C-5C-2. Definitions.
For the purpose of this chapter, the following terms shall
have the meaning ascribed to them in this section:
(1) "Alcohol or drug-related offenses" means all offenses,
including municipal ordinance violations, related to driving under the influence of alcohol, controlled substances or drugs.
(2) "Court referral officer program" means a program
established to evaluate defendants' use of alcohol, controlled
substances or drugs and to provide assistance to courts in
promoting the education and rehabilitation of defendants arrested,
charged or convicted of driving under the influence of alcohol,
controlled substances or drugs.
(3) "Court referral officers" means those persons within
designated judicial circuits providing assessment or evaluation of
defendants for alcohol or drug abuse, recommendations or referrals
for education or treatment and monitoring for court-ordered
compliance.
(4) "Director" means the director of the administrative office
of the supreme court of appeals.
(5) "Driving under the influence" means driving or in actual
physical control of a vehicle while under the influence of alcohol,
controlled substances or drugs as proscribed by article five,
chapter seventeen-c of this code, or any other statute or
ordinance.
§17C-5C-3. Court referral officers or contracting entities;
appointment; supervision by director of the
administrative office of the supreme court of
appeals and circuit judges; compensation; duties.
(a) The director of the administrative office of the supreme court of appeals is authorized to appoint court referral officers
or contract with individuals or entities to provide alcohol and
drug assessment for courts and to conduct the court referral
programs in each judicial circuit of the state. Such appointments
or contracts shall be made or entered into with the advice of the
chief judge of the circuit. The director shall designate the
locations where said court referral programs, court referral
officers or contracting entities or individuals shall serve, which
designations may be changed from time to time: Provided, That all
appointed court referral officers and approved court referral
programs shall serve at the pleasure of the director. Any
individual or entity which contracts to conduct the court referral
program shall perform all the duties as set out in a statewide
policies and procedures manual for court referral programs
established by the administrative office of the supreme court of
appeals. Court referral officers shall work under the general
supervision and direction of the director and the judge or judges
of the circuit to which they are assigned. Such court referral
officers shall be compensated by the state from moneys contained in
the alcohol and drug abuse court referral officer trust fund and
any federal grants designated by the administrative office of the
supreme court of appeals for this purpose.
(b) Court referral officers shall be required to perform the
following duties:
(1) Attend municipal, magistrate and circuit courts as needed;
(2) Screen and evaluate all defendants ordered by the courts
to participate and to recommend to the court appropriate
educational or rehabilitative programs for such defendants;
(3) Develop and maintain a file on each defendant assigned to
the court referral officer, which shall include, but shall not be
limited to, information taken from arrest records, test scores,
results of chemical blood alcohol tests, drug screens and other
personal data;
(4) Continuously monitor defendants who are ordered to
complete alcohol or drug related educational or rehabilitative
programs and to report violations of such orders to the prosecutor
or court;
(5) Provide such information and reports on defendants
assigned to the court referral officer as may be required by the
prosecutor, ordering court or the director;
(6) Provide information or education on the court referral
program to judges, clerks, law-enforcement personnel, prosecutors
and the general public;
(7) Collect and report statistics, data, and other information
pertaining to the court referral program and alcohol and drug
related offenses as required by the director;
(8) Collect and report information to the courts concerning
results of urine screens, drug testing or other appropriate evaluative measures; and
(9) Perform such other duties or functions to further the
purposes of this article as may be directed by the court which they
serve or the director.
§17C-5C-4. Mandatory enrollment program; guidelines; conditions.
(a) A person who is convicted of an offense relating to
driving under the influence under the provisions of section two,
article five of this chapter shall be ordered by the sentencing
court having jurisdiction over the offense to enroll in an alcohol
or drug abuse treatment program provided for in this article, if:
(1) At any time prior to the time that the offense was
committed, the person had been previously convicted two or more
times of an offense under section two of article five;
(2) At the time the offense was committed, the person had an
alcohol concentration in his or her blood of twenty hundredths
(.20) of one percent or more, by weight; or
(3) At the time the offense was committed, the person tested
positive for a controlled substance listed on schedule I, II, or
III, article two, chapter sixty-a of this code.
(b) Upon enrollment in the evaluation, education and
rehabilitation program the offender is subject to the following
conditions. The offender shall:
(1) Provide information needed to conduct an assessment of his
treatment needs;
(2) Complete the recommended treatment;
(3) Complete a drug or alcohol testing program;
(4) Pay any restitution as may be ordered by the court;
(5) Unless indigent, pay for his assessment, treatment, and
monitoring.
§17C-5C-5. Enforcement.
Compliance with any order authorized pursuant to this chapter
relating to evaluation, education and rehabilitation may be
enforced by the court through exercise of its contempt powers.
§17C-5C-6. Bureau of public health to develop policies and
procedures; certification.
The bureau for public health of the department of health shall
develop policies and procedures which shall be followed in the
treatment of offenders.
§17C-5C-7. Alcohol and drug abuse court referral officer trust
fund established; use.
The alcohol and drug abuse court referral officer trust fund
is hereby established and created as a separate fund in the state
treasury. Such fund shall be used for operation of the alcohol and
drug abuse court referral officer program. This fund shall consist
of all moneys paid into the state treasury to the credit of such
fund pursuant to this article and all moneys received for the
benefit of the court referral officer program by legislative
appropriation, grant, gift, or contributions by counties or municipalities, or otherwise. Such moneys shall be used and
expended by the director to establish, organize, and administer the
alcohol and drug abuse court referral officer program throughout
the state. Any unexpended or unencumbered sums remaining in the
fund at the end of the fiscal year except appropriations from other
state funds shall remain in the fund to be preserved for the
administration of the alcohol and drug abuse court referral officer
program.
§17C-5C-8. Alcohol and drug abuse court referral officer trust
fund - purpose of expenditures; effect on other
appropriations.
Moneys contained in the alcohol and drug abuse court referral
officer trust fund shall be expended by the director for purposes
set out in section three of this article. Appropriations
heretofore or hereafter made to the budget of the supreme court of
appeals shall not be reduced by the amount of any funds contained
in the alcohol and drug abuse court referral officer trust fund.
§17C-5C-9. Court referral officer assessment cost.
In addition to the imposition of any other costs, penalties,
or fines imposed pursuant to law, any person convicted as an adult
or adjudicated a youthful offender or juvenile delinquent based on
the offense of driving under the influence or other alcohol or
drug-related offenses as defined in this chapter shall be ordered
by the presiding court to pay an alcohol and drug abuse court referral officer assessment cost in an amount recommended by the
director and approved by the supreme court of appeals. The state
treasurer shall credit such sums to the alcohol and drug abuse
court referral officer trust fund.
§17C-5C-10. Monitoring cost.
Any alcohol or drug-related offender referred for assessment
shall pay a monitoring cost to the court referral officer which
shall also be remitted to the state treasurer by the court referral
officer by the tenth day of each month. The assessment cost and
monitoring costs shall be established and regulated by the director
and can be adjusted to ensure that adequate financial resources are
available to support the court referral program and administration
of the programs.
§17C-5C-11. Eligibility of court referral programs to receive
payments from fund.
The director shall establish criteria to determine the
eligibility of court referral programs to receive payment from the
court referral officer trust fund. All such programs shall be
nonprofit agencies.
§17C-5C-12. Indigent offender alcohol and drug treatment trust
fund - established cost; sanctions for failure to
remit costs.
The indigent offender alcohol and drug treatment trust fund is
hereby established and created as a separate fund in the state treasury. Such fund shall provide for payment to eligible alcohol
and drug treatment programs for treatment and rehabilitation of
indigent offenders. This fund shall consist of all moneys paid
into the state treasury to the credit of such fund pursuant to this
chapter and all moneys received for the benefit of the indigent
offender alcohol and drug treatment trust fund by legislative
appropriation, grant, or otherwise. A cost recommended by the
director and approved by the supreme court of appeals shall be
collected from each offender. The state treasurer shall credit
such sums to the indigent offender alcohol and drug treatment trust
fund. Failure of a court referral program or court referral
officer to remit all costs collected shall be grounds for
termination from the program.
§17C-5C-13. Indigent offender alcohol and drug treatment fund -
criteria for eligibility of programs to receive
payment from fund.
The bureau of public health shall establish criteria to
determine which treatment programs shall be eligible to receive
payment for treatment services for indigent offenders from this
fund, and shall establish rates of reimbursement for treatment of
indigent offenders. Such programs must be certified by the bureau
of public health.
§17C-5C-14. Indigent offender alcohol and drug treatment trust
fund - purpose of expenditures.
Moneys contained in the indigent offender trust fund shall be
expended by the director for purposes set out in section twelve of
this article. Such moneys shall be used and expended by the
director to establish, organize, and administer the indigent
offender alcohol and drug treatment program throughout the state,
including all functions or projects of the department of health
directly or indirectly relating thereto. Any unexpended or
unencumbered sums remaining in the fund at the end of the fiscal
year except appropriations from other state funds shall remain in
the fund to be preserved for the administration of the indigent
offender treatment program.
§17C-5C-15. Waiver of payment of costs for indigents; revocation
of waiver; community service in lieu of payment.
Any person determined to be indigent by the court may request
waiver of all or part of the costs established by this chapter. In
such cases where a waiver of costs is granted, such waiver shall be
limited to the time when the offender is unable to pay. If the
offender becomes able to pay during the course of monitoring or
treatment, or another future date, the waiver of costs may be
revoked. The judge may order an indigent offender to perform
community service in lieu of payment of costs.
§17C-5C-16. Exemption from liability.
The director, employees of the administrative office of the
supreme court of appeals, and the employees of the department of health, including the commissioner of the bureau of public health,
shall be exempt from civil liability for alleged acts of ordinary
negligence for actions taken in performance of their official
duties in carrying out the provisions of this article.