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Introduced Version Senate Bill 516 History

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Key: Green = existing Code. Red = new code to be enacted
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.

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