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Introduced Version House Bill 4079 History

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Key: Green = existing Code. Red = new code to be enacted
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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 follows:
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.
(a) Findings. -- 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.
(b) Purpose. -- 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.
(a) Definitions. -- 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 relapse situations.
(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 this section.
(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 rehabilitative treatment.
(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 rehabilitative treatment.
(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 to proceed.
(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 defendant.
(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 code: Provided, 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 Legislature.
(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 treatment caseload.
(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 can identify.
§60A-4A-5. Severability.
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.
§60A-4A-6. Effective date.
This article becomes effective the first day of July, two thousand four.


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.

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