H. B. 4079
(By Delegates Fleischauer, Amores and Webster)
[Introduced January 20, 2004; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §60A-4A-1, §60A-4A-2,
§60A-4A-3, §60A-4A-4, §60A-4A-5 and §60A-4A-6, all relating to
drug treatment instead of incarceration.
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 §60A-4A-1, §60A-4A-2,
§60A-4A-3, §60A-4A-4, §60A-4A-5 and §60A-4A-6, all to read as
ARTICLE 4A. DRUG TREATMENT INSTEAD OF INCARCERATION.
§60A-4A-1. Short title.
This article shall be called the "Mandatory Treatment Instead
of Mandatory Incarceration Act."
§60A-4A-2. Findings and purpose.
-- The Legislature finds that:
(1) Substance abuse treatment is a proven public safety and
health measure. Nonviolent drug-dependent criminal offenders who
receive treatment are much less likely to abuse drugs and commit
future crimes, and are likely to live healthier, more stable, and
more productive lives; and
(2) When nonviolent persons convicted of drug possession or
drug use are provided appropriate community-based treatment instead
of incarceration, communities are healthier and safer, while
taxpayer dollars are saved.
. -- This law is enacted to enhance public safety
by reducing drug-related crime, to improve public health by
reducing drug abuse and drug dependence through proven and
effective drug treatment strategies, and to halt the wasteful
expenditure of millions of dollars each year on the incarceration
and reincarceration of nonviolent drug offenders who would be
better placed in community-based treatment.
§60A-4A-3. Drug treatment instead of incarceration.
-- In this article:
(1) "Rehabilitative treatment program" means the least
restrictive rehabilitative treatment program appropriate, as
determined by clinical assessment. The rehabilitative treatment
program shall include drug treatment provided by a certified
community drug treatment program, and may include one or more of
the following: Outpatient treatment, halfway house treatment, narcotic replacement therapy, drug education or prevention courses,
vocational training, family counseling, literacy training,
community service, and inpatient or residential drug treatment as
needed to address severe dependence, special detoxification, or
(2) "Nonviolent drug offense" means an offense involving the
possession or sale of a controlled substance, as identified in
article two, chapter sixty-a of this code, or anything consumed for
its psychoactive effect whether or not designed for human
consumption, but not involving the use, attempted use, or
threatened use of physical force against another person.
(b) Appropriate assignment of nonviolent drug offenders.
(1) After arraignment, the court shall direct that a clinical
assessment be performed of all persons charged with a nonviolent
drug offense, with the consent of the person arrested. The
clinical assessment shall form the basis for all orders pursuant to
(2) The court, prior to the entry of a guilty plea, shall
order any person who would otherwise be arraigned for a nonviolent
drug offense for the first time to participate in and complete a
rehabilitative drug treatment program. This subdivision applies to
all first-time felony and all misdemeanor drug offenders.
(3) Upon application by the defendant, and upon good cause
shown, the court may allow a repeat nonviolent felony drug offender to plead guilty to the drug offense and subsequently order the
person to participate in and complete a rehabilitative treatment
program. The court shall sentence the repeat nonviolent felony
drug offender in accordance with applicable provisions of the
criminal code, but shall suspend the sentence following the
defendant's participation in and completion of appropriate
(4) Subdivisions (2) and (3) of this subsection do not apply
to any person who:
(A) Has been convicted within the previous five years of a
felony involving the use, attempted use, or threatened use of
physical force against another person;
(B) In addition to the conviction of the nonviolent drug
offense, has been charged and/or convicted in the same proceeding
of a felony not related to the use of drugs;
(C) Refuses participation in a clinical assessment or
rehabilitative treatment program; or
(D) Has two separate convictions for nonviolent drug offenses,
has participated in two separate courses of rehabilitative
treatment under this section, and is found by the court by clear
and convincing evidence to be unsuitable for any available form of
(5) If, during the course of rehabilitative treatment, the
treatment provider determines that the defendant is unsuitable for the treatment being provided, but may be suitable for other
rehabilitative treatment programs, the court may modify the terms
of its order to ensure that the person receives the alternative
treatment or program.
(6) Nothing in this section precludes a defendant from
declining to participate in a clinical assessment or rehabilitative
treatment program. A person who declines participation shall be
prosecuted and sentenced in accordance with otherwise applicable
provisions of the criminal code.
(c) Subsequent prosecution.
(1) If a person participating in a rehabilitative treatment
program pursuant to subsection (b) of this section is arrested for
an offense other than a nonviolent drug offense or violates a
nondrug-related condition of the order directing that person to a
rehabilitative treatment program, or violates a nondrug-related
condition of probation, the prosecuting attorney may move to
proceed with prosecution, at which time the court shall conduct a
hearing. If the alleged violation is proven, the court may modify
its offer or the conditions of probation, or may direct prosecution
(2) If a person participating in a rehabilitative treatment
program pursuant to subsection (b) of this section is arrested for
a nonviolent drug possession offense, violates a drug-related
condition of the order directing that person to a rehabilitative treatment program, or violates a drug-related condition of
probation the prosecuting attorney may move to proceed with
prosecution. If the prosecuting attorney moves for prosecution,
the court shall conduct a hearing on the alleged violation. If the
court finds that a violation has occurred, and the state proves by
clear and convincing evidence that the person poses a danger to the
safety of other persons, the court may direct prosecution to
proceed, or the court may order that the rehabilitative treatment
program be intensified or modified.
(3) Where the court directs prosecution to proceed, in no
event shall any person who has failed to successfully complete a
rehabilitative treatment offense pursuant to this section receive
a sentence that exceeds the sentence to which the person would have
been subject had the person declined to participate in the
rehabilitative treatment program.
(4) Where the court directs prosecution of a first-time felony
or any misdemeanor nonviolent drug offense to proceed because the
defendant has failed to successfully complete a rehabilitative
treatment program pursuant to this section, notwithstanding any
other provision of law, the trial court may not sentence the
defendant to a term that exceeds thirty days in jail.
(5) Where a defendant has two separate convictions for a
nonviolent possession offense, has participated in two separate
courses of drug treatment, and is found by the court, by clear and convincing evidence to be unsuitable for any available form of drug
treatment, the defendant is not eligible for continued probation
under subsection (b) of this section. Notwithstanding any other
provision of law, the trial court may not sentence the defendant to
a term that exceeds ninety days in jail.
(6) At any time after completion of treatment, a defendant
subject to subdivision (2), subsection (b) of this section, may
petition the court for dismissal of the charges. If the court
finds that the defendant successfully completed a prescribed course
of treatment and substantially complied with the conditions of
probation, the court shall dismiss the charges against the
(7) At any time after completion of treatment, a defendant
sentenced pursuant to subdivision (3), subsection(b) of this
section, may petition the court for dismissal of the charges. If
the court finds the defendant successfully completed the prescribed
course of treatment, the court shall set aside the conviction on
which the sentence was based, shall order the plea entered by the
defendant withdrawn, and shall dismiss the charges.
§60A-4A-4. Substance abuse treatment trust fund.
(a) Establishment of fund.
-- There is hereby created in the
state treasury a special revenue account to be known as the
"Substance Abuse Treatment Trust Fund". The fund shall consist of
all appropriations to the fund and all interest earned from the investment of the fund and any gifts, grants or contributions
received by the fund. Expenditures from the fund shall be for the
purposes set forth in this article and are not authorized from
collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
fulfillment of the provisions of article two, chapter five-a of the
That for the fiscal year ending the thirtieth day
of June, two thousand five, expenditures are authorized from
collections rather than pursuant to appropriations by the
(b) Funding allocation. --
(1) Moneys deposited in the substance abuse treatment trust
fund shall be distributed annually by the commissioner of
corrections to counties to cover the costs of placing persons in
appropriate drug treatment programs under this article.
(2) Moneys from the trust fund shall be allocated to counties
through a fair and equitable distribution formula as determined by
the division as necessary to carry out the purposes of this
article. That includes, but is not limited to, per capita arrests
for controlled substance possession violations and substance abuse
(3) The division may reserve a portion of the fund to pay for
direct contracts with drug treatment service providers in counties or areas in which the department has determined that demand for
drug treatment services is not adequately met by existing
rehabilitative treatment programs. However, nothing in this
section may be interpreted or construed to allow any entity to use
funds from the substance abuse treatment trust fund to supplement
funds from any existing fund source or mechanism currently used to
provide substance abuse treatment.
(c) Accountability and evaluation.
(1) The commissioner of corrections annually shall conduct a
study to evaluate the effectiveness and financial impact of the
programs that are funded pursuant to the requirements of this
article, and shall deliver a report on the study to the legislative
auditor and to the governor.
(2) The study shall include, but not be limited to, a study of
the implementation process, a review of incarceration costs, crime
rates, prison and jail construction, welfare costs, the adequacy of
funds appropriated, and any other impacts or issues the department
The provisions of this article are severable, and if any
phrase, clause, sentence or provision is declared invalid or is
preempted by federal law or regulation, the validity of the
remainder of the article is not affected.
. Effective date.
This article becomes effective the first day of July, two
NOTE: The purpose of this bill is to establish a program to
employ rehabilitative drug treatment instead of incarceration for
most persons arrested for nonviolent drug offenses.
This article is new; therefore, strike-throughs and
underscoring have been omitted.