ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2684
(By Delegates Moore, Webster, Brown, Overington, and Schadler)
[Passed April 9, 2009; in effect ninety days from passage.]
AN ACT to amend and reenact §61-11-22 of the Code of West Virginia,
1931, as amended; to amend said code 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"; removing conflicting provisions related to
drug court from the code; explaining the policy and goals of
the Act; authorizing drug courts; providing for the structure
of drug courts; authorizing drug court teams; establishing
eligibility requirements for drug courts; providing treatment
and services to participants; establishing drug testing
procedures; providing for oversight and rule-making authority
of the supreme court of appeals; collecting and maintaining
information on drug court candidates and participants; funding; providing for immunity from liability; and
establishing the manner in which the Act is to be construed.
Be it enacted by the Legislature of West Virginia:
That §61-11-22 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said code 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:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-22. Pretrial 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 pretrial
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 is
to be in writing and is to 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 may not exceed twenty-four months in
duration. The duration of the agreement must be specified in the agreement. The terms of any agreement entered into pursuant to the
provisions of this section may include conditions similar to those
set forth in section nine, article twelve, chapter sixty-two of
this code relating to conditions of probation. The agreement may
require 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 pretrial
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) No person charged with a violation of the provisions of
section two, article five, chapter seventeen-c of this code may
participate in a pretrial diversion program. No person charged
with a violation of the provisions of section twenty-eight, article
two of this chapter may participate in a pretrial diversion program
unless the program is part of a community corrections program approved pursuant to the provisions of article eleven-c, chapter
sixty-two of this code. No person indicted for a felony crime of
violence against the person where the alleged victim is a family or
household member as defined in section two hundred three, article
twenty-seven, chapter forty-eight of this code or indicted for a
violation of the provisions of sections three, four or seven,
article eight-b of this chapter is eligible to participate in a
pretrial diversion program. No defendant charged with a violation
of the provisions of section twenty-eight, article two of this
chapter or subsections (b) or (c), section nine, article two of
this chapter where the alleged victim is a family or household
member is eligible for pretrial diversion programs if he or she has
a prior conviction for the offense charged or if he or she has
previously been granted a period of pretrial diversion pursuant to
this section for the offense charged. Notwithstanding any
provision of this code to the contrary, defendants charged with
violations of the provisions of section twenty-eight, article two,
chapter sixty-one of this code or the provisions of subsection (b)
or (c), section nine, article two of said chapter where the alleged
victim is a family or household member as defined by the provisions
of section two hundred three, article twenty-seven, chapter forty-
eight of this code are ineligible for participation in a pretrial
diversion program before the July 1, 2002, and before the community
corrections subcommittee of the Governor's Committee on Crime, Delinquency and Correction established pursuant to the provisions
of section two, article eleven-c, chapter sixty-two of this code,
in consultation with the working group of the subcommittee, has
approved guidelines for a safe and effective program for diverting
defendants charged with domestic violence.
(e) The provisions of section twenty-five of this article are
inapplicable to defendants participating in pretrial diversion
programs who are charged with a violation of the provisions of
section twenty-eight, article two, chapter sixty-one of this code.
The community corrections subcommittee of the Governor's Committee
on Crime, Delinquency and Correction established pursuant to the
provisions of section two, article eleven-c, chapter sixty-two of
this code shall, upon approving any program of pretrial diversion
for persons charged with violations of the provisions of section
twenty-eight, article two, chapter sixty-one of this code,
establish and maintain a central registry of the participants in
the programs which may be accessed by judicial officers and court
personnel.
CHAPTER 62. CRIMINAL PROCEDURE.
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) "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.
(3) "Controlled substance" means a drug or other substance for
which a medical prescription or other legal authorization is
required for purchase or possession
(4) "Drug" means a controlled substance, an illegal drug, or
other harmful substance.
(5) "Drug court" means a judicial intervention process that
incorporates the Ten Key Components and may include pre-
adjudication or post-adjudication participation.
(6) "Drug court team" may consist of the following members who
are assigned to the drug court:
(A) The drug court judge, which may include a magistrate,
mental hygiene 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 or community
corrections program, if operating in the jurisdiction;
(E) A law-enforcement officer;
(F) The drug court coordinator;
(G) A representative from a circuit court probation office or
the division of parole supervision or both;
(H) One or more substance abuse treatment providers; and
(I) Any other persons selected by the drug court team.
(7) "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 factor in the
commission of the offense.
(8) "Dual Diagnosis" means a substance abuse and co-occurring
mental health disorder.
(9) "Local advisory committee" may consist of the following
members or their designees:
(A) Drug court circuit judge, who shall serve as chair;
(B) Drug court magistrate(s);
(C) Prosecutor;
(D) Public defender;
(E) Drug court coordinator;
(F) Criminal defense bar;
(G) Circuit clerk;
(H) Day report center director;
(I) Circuit court probation officer, parole officer or both;
(J) Law enforcement;
(K) One or more substance abuse treatment providers;
(L) Corrections representative; and
(M) Such other person or persons the chair deems appropriate.
(10) "Illegal drug" means a drug whose manufacture, sale, use
or possession is forbidden by law;
(11) "Memorandum of Understanding" means a written document
setting forth an agreed upon procedure.
(12) "Offender" means an adult charged with a criminal offense
punishable by incarceration.
(13) "Other harmful substance" means a misused substance
otherwise legal to possess, including alcohol.
(14) "Pre-adjudication" means a court order requiring a drug
offender to participate in drug court before charges are filed or
before conviction.
(15) "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.
(16) "Recidivism" means any subsequent arrest for a serious
offense (carrying a sentence of at least one year) resulting in the
filing of a charge.
(17) "Relapse" means a return to substance use after a period of abstinence.
(18) "Split sentencing" means a sentence which includes a
period of incarceration followed by a period of supervision.
(19) "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.
(20) "Substance" means drug.
(21) "Substance abuse" means the illegal or improper
consumption of a drug.
(22) "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.
(23) "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.
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, workforce
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) Enhancing community safety and quality of life for
citizens;
(2) Reducing recidivism;
(3) Reducing substance abuse;
(4) Increasing the personal, familial, and societal
accountability of drug offenders;
(5) Restoring drug offenders to productive, law-abiding, and
taxpaying citizens;
(6) Promoting effective interaction and use of resources among
criminal justice and community agencies;
(7) Reducing the costs of incarceration; and
(8) Improving the efficiency of the criminal justice system by
enacting an effective methodology.
§62-15-4. Court authorization and structure.
(a) Each judicial circuit or two or more adjoining judicial
circuits may establish a drug court or regional drug court program under which drug offenders will be processed to address
appropriately, the identified substance abuse problem as a
condition of pretrial release, probation, incarceration, parole or
other release from a correctional facility.
(b) The structure, method, and operation of each drug court
program may differ and should be based upon the specific needs of
and resources available to the judicial circuit or circuits where
the drug court program is located.
(c) A drug court program may be pre-adjudication or post-
adjudication for an adult offender.
(d) Participation in drug court, with the consent of the
prosecution and the court, shall be pursuant to a written
agreement.
(e) 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; or
(4) Has not violated the terms and conditions of the
agreement.
(f) A drug court may impose reasonable sanctions on the drug
offender, including incarceration for the underlying offense or
expulsion from the program, pursuant to 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.
(g) 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 the 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.
(h) Drug court shall include the Ten Key Components and the
drug court team shall act to ensure compliance with them.
(i) 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.
(j) 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.
(k) Each drug court judge may establish rules and may make
special orders 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.
§62-15-5. Drug court teams.
(a) 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.
(b) 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 recommend
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.
§62-15-6. Eligibility.
(a) A drug offender shall not be eligible for the drug court
program if:
(1) The underlying offense involves a felony crime of
violence, unless there is a specific treatment program available
designed to address violent offenders;
(2) The underlying offense involves an offense that requires
registration as a sex offender pursuant to the article twelve,
chapter fifteen of this Code;
(3) The drug offender has a prior felony conviction in this
state or another state for a felony crime of violence; or
(4) The drug offender has a prior conviction in this state or
another state for a crime that requires registration as a sex
offender pursuant to article twelve, chapter fifteen of this Code.
(b) Eligible offenses may be further restricted by the rules
of a specific drug court program.
(c) Nothing in this section shall require a drug court judge
to consider or accept every offender with a treatable condition or
addiction, regardless of the fact that the controlling offense is
eligible for consideration in the program.
§62-15-7. Treatment and support services.
(a) As part of any 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.
§62-15-8. 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.
§62-15-9. 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 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
the thirty-first day of December of each year. The report shall
include:
(1) A description of all drug courts operating within the
jurisdiction;
(2) Participating judges and magistrates if applicable;
(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 ten of this article.
§62-15-10. 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 babies, both addicted and healthy, born to
female drug offenders during participation in drug court;
(6) Instances of relapse occurring during participation in
drug court;
(7) Instances of recidivism occurring during and after
participation in drug court. Recidivism shall be measured at
intervals of six months, one year, two years, and five years after
successful graduation from 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; and
(10) the costs of operation and sources of funding.
(b) A drug offender may be required as a condition of pretrial
diversion, 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.
§62-15-11. Funding.
(a) Each drug court with the guidance of the Supreme Court of
Appeals may establish a schedule for the payment of reasonable fees
and costs necessary to conduct the program;
(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.
§62-15-12. 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.
§62-15-13. Statutory construction.
The provisions of this article shall be construed to
effectuate its remedial purposes.
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