COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 634

(By Senators Kessler, Edgell, Hunter, Mitchell and Fanning)

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[Originating in the Committee on the Judiciary;

reported February 29, 2000.]

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A BILL to amend and reenact section one-a, article eleven-a, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to providing a sentencing alternative under which persons would be required to report to a day-reporting center for alcohol or drug testing or other medical testing where such monitoring is required on a regular basis.

Be it enacted by the Legislature of West Virginia:
That section one-a, article eleven-a, chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.

§62-11A-1a. Other sentencing alternatives.
(a) Any person who has been convicted in a circuit court or in a magistrate court under any criminal provision of this code of a misdemeanor or felony, which is punishable by imposition of a fine or confinement in the county or regional jail or the a state penitentiary correctional facility, or both fine and confinement, may, in the discretion of the sentencing judge or magistrate, as an alternative to the sentence imposed by statute for the crime, be sentenced under one of the following programs:
(1) The weekend jail program under which persons would be required to spend weekends or other days normally off from work in jail;
(2) The work program under which sentenced persons would be required to spend the first two or more days of their sentence in jail and then, in the discretion of the court, would be assigned to a county agency to perform labor within the jail, or in and upon the buildings, grounds, institutions, bridges or roads, including orphaned roads used by the general public and public works within the county. Eight hours of labor shall be credited as one day of the sentence imposed. Persons sentenced under this program may be required to provide their own transportation to and from the work site, lunch and work clothes; or
(3) The community service program under which persons sentenced would spend no time in jail but would be sentenced to a number of hours or days of community service work with government entities or charitable or nonprofit entities approved by the circuit court. Regarding any portion of the sentence designated as confinement, eight hours of community service work shall be credited as one day of the sentence imposed. Regarding any portion of the sentence designated as a fine, the fine shall be credited at an hourly rate equal to the prevailing federal minimum wage at the time the sentence was imposed. In the discretion of the court, the sentence credits may run concurrently or consecutively. Persons sentenced under this program may be required to provide their own transportation to and from the work site, lunch and work clothes; or
(4) A day-reporting center program if the program has been implemented in the sentencing court's jurisdiction or in the area where the offender resides. For purposes of this subdivision "day- reporting center" means a court-operated or court-approved facility where persons ordered to serve a sentence in such a facility are required to report under the terms and conditions set by the court for purposes which include but are not limited to counseling, employment training, alcohol or drug testing or other medical testing.
(b) In no event may the duration of the alternate sentence exceed the maximum period of incarceration otherwise allowed.
(c) In imposing a sentence under the provisions of this section, the court shall first make the following findings of fact and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for which a mandatory period of confinement is imposed by statute;
(2) In circuit court cases, that the person sentenced is not a habitual criminal within the meaning of sections eighteen and nineteen, article eleven, chapter sixty-one of this code;
(3) In circuit court cases, that the offense underlying the sentence is not a felony offense for which violence or the threat of violence to the person is an element of the offense;
(4) In circuit court cases, that adequate facilities for the administration and supervision of alternative sentencing programs are available through the court's probation officers or the county sheriff or, in magistrate court cases, that adequate facilities for the administration and supervision of alternative sentencing programs are available through the county sheriff; and
(5) That an alternative sentence under provisions of this article will best serve the interests of justice.
(d) Persons sentenced by the circuit court under the provisions of this article shall remain under the administrative custody and supervision of the court's probation officers or the county sheriff. Persons sentenced by a magistrate shall remain under the administrative custody and supervision of the county sheriff.
(e) Persons sentenced under the provisions of this section may be required to pay the costs of their incarceration, including meal costs, at the discretion of the court.
(f) Persons sentenced under the provisions of this section remain under the jurisdiction of the court. The court may withdraw any alternative sentence at any time by order entered with or without notice and require that the remainder of the sentence be served in the county jail, regional jail or penitentiary a state correctional facility: Provided, That no alternative sentence directed by the sentencing judge or magistrate or administered under the supervision of the sheriff, his or her deputies, a jailer or a guard, shall require the convicted person to perform duties which would be considered detrimental to the convicted person's health as attested by a physician.

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(NOTE: The purpose of this bill is to provide a sentencing alternative under which persons would be required to report to a day reporting center for alcohol or drug testing or other medical testing where such monitoring is required on an regular basis.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.)