hb2405 enr

ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2405
(By Delegates Givens, Wills, Caputo, R. Thompson, Webster and Schadler)

[Passed April 14, 2001; in effect July 1, 2001.]

AN ACT to amend and reenact section two, article five, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section three-a, article two, chapter fifty of said code; to amend and reenact section twenty-eight, article two, chapter sixty-one of said code; to amend article eleven of said chapter by adding a new section, designated section twenty- two; to amend and reenact section one-a, article eleven-a, chapter sixty-two of said code; to amend and reenact sections three, five, six, seven and eleven, article eleven- b of said chapter; to amend said article by adding thereto a new section, designated section thirteen; to amend said chapter by adding thereto a new article, designated article eleven-c; and to amend and reenact section nine, article twelve of said chapter, all relating to community corrections and sentencing alternatives generally; allowing imposition of community corrections program participation for convictions of driving under the influence; providing exceptions to imposition of community corrections programs; allowing magistrate courts to impose participation in a community corrections program; requiring a preimposition hearing to determine ability to pay without undue hardship; allowing magistrates to impose home incarceration through a community corrections program; creating enhanced second offense penalty for domestic battery and assault; increasing fine for third offense domestic battery and assault; allowing diverted matters to allow enhancement; authorizing municipal judges to impose home incarceration; expanding types of allowable electronic monitoring devices; authorizing certain restitution and costs; requiring the court to consider ability to pay in assessing costs of incarceration and home incarceration fees; allocation of fees allowing circuit judges, magistrates and municipal judges to credit pre-conviction time spent on home incarceration towards a sentence; allowing county commissions to appropriate excess money from home incarceration services funds to a community corrections program; providing for the creation of community corrections programs; creating the community corrections subcommittee of the governor's committee on crime, delinquency and corrections; creating working group on domestic violence; defining duties of the community corrections subcommittee; codifying prosecutorial authority to enter into pretrial diversion agreements; providing exceptions to prosecutorial authority to enter into pretrial diversion agreements; authorizing drug courts; providing definitions, terms and eligibility requirements for drug courts; creating the West Virginia community corrections fund as a special revenue account; requiring community criminal justice boards; requiring community criminal justice accounts; allowing judges, magistrates and municipal judges to assess a fee for the participation in or supervision of a community corrections program; authorizing the ordering of fees for participation in a community corrections program; requiring courts to consider ability to pay in assessing a participation or supervision fee; requiring a fee of persons on probation and home incarceration to fund community corrections programs; and allowing those not under court supervision to participate in or be supervised by a community corrections program under certain circumstances.

Be it enacted by the Legislature of West Virginia:

That section two, article five, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section three-a, article two, chapter fifty of said code be amended and reenacted; that section twenty-eight, article two of chapter sixty-one of said code be amended and reenacted; that article eleven of said chapter be amended by adding thereto a new section, designated section twenty-two; that section one-a, article eleven-a of chapter sixty-two of said code be amended and reenacted; that sections three, five, six, seven and eleven, article eleven-b of said chapter be amended and reenacted; that said article be amended by adding thereto a new section, designated section thirteen; that said chapter be further amended by adding a new article, designated article eleven-c; and that section nine, article twelve of said chapter be amended and reenacted, all to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled substances or drugs; penalties.

(a) Any person who:

(1) Drives a vehicle in this state while he or she:

(A) Is under the influence of alcohol; or

(B) Is under the influence of any controlled substance; or

(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) Has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight; and

(3) Commits the act or failure in reckless disregard of the safety of others, and when the influence of alcohol, controlled substances or drugs is shown to be a contributing cause to the death, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than ten years and shall be fined not less than one thousand dollars nor more than three thousand dollars.

(b) Any person who:

(1) Drives a vehicle in this state while he or she:

(A) Is under the influence of alcohol; or

(B) Is under the influence of any controlled substance; or

(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) Has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight; and

(2) When so driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes the death of any person within one year next following the act or failure, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than ninety days nor more than one year and shall be fined not less than five hundred dollars nor more than one thousand dollars.

(1) Drives a vehicle in this state while he or she:

(A) Is under the influence of alcohol; or

(B) Is under the influence of any controlled substance; or

(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) Has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight; and

(2) When so driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes bodily injury to any person other than himself or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than one year, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars.

(d) Any person who:

(1) Drives a vehicle in this state while he or she:

(A) Is under the influence of alcohol; or

(B) Is under the influence of any controlled substance; or

(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) Has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight;

(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than six months, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars.

(e) Any person who, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, drives a vehicle in this state, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than six months, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars.

(f) Any person who:

(1) Knowingly permits his or her vehicle to be driven in this state by any other person who:

(A) Is under the influence of alcohol; or

(B) Is under the influence of any controlled substance; or

(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) Has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight;

(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.

(g) Any person who

knowingly permits his or her vehicle to be driven in this state by any other person who is an habitual user of narcotic drugs or amphetamine or any derivative thereof, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.

(h) Any person under the age of twenty-one years who drives a vehicle in this state while he or she has an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than ten hundredths of one percent, by weight,, for a first offense under this subsection, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than one hundred dollars. For a second or subsequent offense under this subsection, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars. A person who is charged with a first offense under the provisions of this subsection may move for a continuance of the proceedings from time to time to allow the person to participate in the vehicle alcohol test and lock program as provided for in section three-a, article five-a of this chapter. Upon successful completion of the program, the court shall dismiss the charge against the person and expunge the person's record as it relates to the alleged offense. In the event the person fails to successfully complete the program, the court shall proceed to an adjudication of the alleged offense. A motion for a continuance under this subsection may not be construed as an admission or be used as evidence.

A person arrested and charged with an offense under the provisions of subsection (a), (b), (c), (d), (e), (f), (g) or (i) of this section may not also be charged with an offense under this subsection arising out of the same transaction or occurrence.

(i) Any person who:

(1) Drives a vehicle in this state while he or she:

(A) Is under the influence of alcohol; or

(B) Is under the influence of any controlled substance; or

(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) Has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight; and

(2) The person when so driving has on or within the motor vehicle one or more other persons who are unemancipated minors who have not reached their sixteenth birthday, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than two days nor more than twelve months, which jail term is to include actual confinement of not less than forty-eight hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars.

(j) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section, for the second offense under this section, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than six months nor more than one year, and the court may, in its discretion, impose a fine of not less than one thousand dollars nor more than three thousand dollars.

(k) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section, for the third or any subsequent offense under this section, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than three years, and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars.

(l) For purposes of subsections (j) and (k) of this section relating to second, third and subsequent offenses, the following types of convictions are to be regarded as convictions under this section:

(1) Any conviction under the provisions of subsection (a), (b), (c), (d), (e) or (f) of the prior enactment of this section for an offense which occurred on or after the first day of September, one thousand nine hundred eighty-one, and prior to the effective date of this section;

(2) Any conviction under the provisions of subsection (a) or (b) of the prior enactment of this section for an offense which occurred within a period of five years immediately preceding the first day of September, one thousand nine hundred eighty-one; and

(3) Any conviction under a municipal ordinance of this state or any other state or a statute of the United States or of any other state of an offense which has the same elements as an offense described in subsection (a), (b), (c), (d), (e), (f) or (g) of this section, which offense occurred after the tenth day of June, one thousand nine hundred eighty-three.

(m) A person may be charged in a warrant or indictment or information for a second or subsequent offense under this section if the person has been previously arrested for or charged with a violation of this section which is alleged to have occurred within the applicable time periods for prior offenses, notwithstanding the fact that there has not been a final adjudication of the charges for the alleged previous offense. In that case, the warrant or indictment or information must set forth the date, location and particulars of the previous offense or offenses. No person may be convicted of a second or subsequent offense under this section unless the conviction for the previous offense has become final.

(n) The fact that any person charged with a violation of subsection (a), (b), (c), (d) or (e) of this section, or any person permitted to drive as described under subsection (f) or (g) of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug does not constitute a defense against any charge of violating subsection (a), (b), (c), (d), (e), (f) or (g) of this section.

(o) For purposes of this section, the term "controlled substance" has the meaning ascribed to it in chapter sixty-a of this code.

(p) The sentences provided herein upon conviction for a violation of this article are mandatory and may not be subject to suspension or probation: Provided, That the court may apply the provisions of article eleven-a, chapter sixty-two of this code to a person sentenced or committed to a term of one year or less. An order for home detention by the court pursuant to the provisions of article eleven-b, chapter sixty-two of this code may be used as an alternative sentence to any period of incarceration required by this section. An order for supervision or participation in a community corrections program created pursuant to article eleven-c, chapter sixty-two of this code may be used as an alternative sentence to any period of incarceration required by this section.

CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 2. JURISDICTION AND AUTHORITY.
§50-2-3a. Sentencing; probation.

(a) In addition to sentencing authority granted in other provisions of this code to magistrate courts, magistrate courts have authority to suspend sentences and impose periods of unsupervised probation for a period not to exceed two years, except for offenses for which the penalty includes mandatory incarceration and offenses defined in sections eight and nine, article eight-b, chapter sixty-one of this code and subsection (c), section five, article eight-d of said chapter.

(b) Notwithstanding any other provision of law to the contrary, magistrate courts have the authority to impose periods of supervision or participation in a community corrections program created pursuant to article eleven-c, chapter sixty-two of this code. Periods of supervision or participation in community corrections programs imposed pursuant to this subsection are not to exceed two years.

(1) That the probationer may not, during the term of his or her probation, violate any criminal law of this state, any other state of the United States or the United States;

(2) That he or she may not, during the term of his or her probation, leave the state without the consent of the court which placed him or her on probation;

(3) That he or she shall comply with the rules or terms prescribed by the court;

(4) That he or she shall make reasonable restitution if financially able to do so, in whole or in any part, immediately or within the period of probation: Provided, That the magistrate conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay restitution without undue hardship; and

(5) That he or she shall pay any fine and the costs assessed as the court may direct: Provided, That the magistrate conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay the costs without undue hardship.

(d) On motion by the prosecuting attorney, and upon a hearing and a finding that reasonable cause exists to believe that a violation of any condition of probation has occurred, the magistrate may revoke probation and order execution of the sentence originally imposed.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.

§61-2-28. Domestic violence -- Criminal acts.

(a) Domestic battery. -- Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature with his or her family or household member or unlawfully and intentionally causes physical harm to his or her family or household member, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than twelve months, or fined not more than five hundred dollars, or both.

(b) Domestic assault. -- Any person who unlawfully attempts to commit a violent injury against his or her family or household member or unlawfully commits an act which places his or her family or household member in reasonable apprehension of immediately receiving a violent injury, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than six months, or fined not more than one hundred dollars, or both.

(c) Second offense. - Any person who has previously been convicted of a violation of subsection (a) or (b) of this section, a violation of the provisions of subsection (b) or (c), section nine of this article where the victim was his or her family or household member or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection (b) or (c) of section nine of this article where the victim was his or her family or household member shall be guilty of a misdemeanor. A person convicted of a violation of subsection (a) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c) of section nine, of this article where the victim was his or her family or household member or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection (b) or (c) of section nine of this article where the victim was his or her family or household member shall be confined in a county or regional jail for not less than sixty days nor more than one year, or fined not more than one thousand dollars, or both. A person convicted of a violation of subsection (b) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c) of section nine of this article where the victim was his or her family or household member or having previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection (b) or (c) of section nine of this article where the victim was his or her family or household member shall be confined in a county or regional jail for not less than thirty days nor more than six months, or fined not more than five hundred dollars, or both.

(d) Third offense. -- Any person who has been convicted of a third or subsequent violation of the provisions of subsection (a) or (b) of this section, a third or subsequent violation of the provisions of section nine of this article where the victim is a family or household member or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section, a violation of the provisions of section nine of this article where the victim is a family or household member , or any combination of convictions or diversions for these offenses, is guilty of a felony if the offense occurs within ten years of a prior conviction of any of these offenses and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than five years or fined not more than two thousand five hundred dollars, or both.

(e) As used in this section, "family or household member" means "family or household member" as defined in 48-27-203 of this code.

(f) A person charged with a violation of this section may not also be charged with a violation of subsection (b) or (c), section nine of this article for the same act.

(g) No law-enforcement officer may be subject to any civil or criminal action for false arrest or unlawful detention for effecting an arrest pursuant to this section or pursuant to 48- 27-1002 of this code.
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 48-27-203 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 subsections (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 48-27-203 of this code are ineligible for participation in a pretrial diversion program before the first day of July, two thousand two, 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.

(f) (1) The chief judge of a circuit court in cooperation with the prosecuting attorneys, the public defenders, if any, in the circuit, and the community criminal justice board if the program is to be operated pursuant to the provisions of article eleven-c, chapter sixty-two of this code may establish and operate a drug court program as a diversion program or an alternative sentencing program, or both, to address offenses that stem from substance use or abuse.

(2) For the purposes of this section, "drug court program" means a program designed to achieve a reduction in recidivism and substance abuse among nonviolent, substance abusing offenders by increasing their likelihood for successful rehabilitation through early, continuous, and intense supervised treatment, mandatory periodic drug testing and the use of appropriate sanctions and other rehabilitation services.

(3) A drug court program is to provide, at a minimum:

(A) For successful completion of a diversion or plea agreement in lieu of incarceration;

(B) Access by all participating parties of a case to information on the offender's progress;

(D) Random substance abuse testing;

(E) Provisions for dealing with noncompliance, modification of the treatment plan, and revocation proceedings;

(F) For its operation only when appropriate facilities and outpatient services are available; and

(G) For payment of court costs, treatment costs, supervision fees, and program user fees by the offender, unless payment of the costs and fees would impose an undue hardship.

(4) An offender is eligible for a drug court program only if:

(A) The underlying offense does not involve a felony crime of violence, unless there is a specific treatment program available designed to address violent offenders;

(B) The offender has no prior felony conviction in this state or another state for a felony crime of violence; and

(5) The court may provide additional eligibility criteria it considers appropriate.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 11A. RELEASE FOR WORK OR 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 a state 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, roads, including orphaned roads used by the general public and public works within the county. Eight hours of labor are to 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 is to be credited as one day of the sentence imposed. Regarding any portion of the sentence designated as a fine, the fine is to 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;

(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 this type of 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 remain under the administrative custody and supervision of the court's probation officers or the county sheriff. Persons sentenced by a magistrate 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; Provided, That the judge or magistrate considers the person's ability to pay the costs.

(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 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, may require the convicted person to perform duties which would be considered detrimental to the convicted person's health as attested by a physician.

(g) No provision of this section may be construed to limit a circuit judge or magistrate's ability to impose a period of supervision or participation in a community corrections program created pursuant to article eleven-c, chapter sixty-two of this code.
ARTICLE 11B. HOME INCARCERATION ACT.
§62-11B-3. Definitions.

As used in this article:

(1) "Home" means the actual living area of the temporary or permanent residence of an offender. The term includes, but is not limited to, a hospital, health care facility, hospice, group home, residential treatment facility and boarding house.

(2) "Monitoring device" means an electronic device that is:

(A) Limited in capability to the recording or transmitting of information regarding an offender's presence or absence from the offender's home and his or her use or lack of use of alcohol or controlled substances;

(B) Minimally intrusive upon the privacy of other persons residing in the offender's home; and

(i) Visual images;

(ii) Oral or wire communications or any auditory sound; or

(iii) Information regarding the offender's activities while inside the offender's home without the offender's knowledge or consent.

(3) "Offender" means any adult convicted of a crime punishable by imprisonment or detention in a county jail or state penitentiary; or a juvenile convicted of a delinquent act that would be a crime punishable by imprisonment or incarceration in the state penitentiary or county jail, if committed by an adult.
§62-11B-5. Requirements for order for home incarceration.

An order for home incarceration of an offender under section four of this article is to include, but not be limited to, the following:

(1) A requirement that the offender be confined to the offender's home at all times except when the offender is:

(A) Working at employment approved by the circuit court or magistrate, or traveling to or from approved employment;

(B) Unemployed and seeking employment approved for the offender by the circuit court or magistrate;

(C) Undergoing medical, psychiatric, mental health treatment, counseling or other treatment programs approved for the offender by the circuit court or magistrate;

(D) Attending an educational institution or a program approved for the offender by the circuit court or magistrate;

(E) Attending a regularly scheduled religious service at a place of worship;

(F) Participating in a community work release or community service program approved for the offender by the circuit court, in circuit court cases; or

(G) Engaging in other activities specifically approved for the offender by the circuit court or magistrate.

(2) Notice to the offender of the penalties which may be imposed if the circuit court or magistrate subsequently finds the offender to have violated the terms and conditions in the order of home incarceration.

(3) A requirement that the offender abide by a schedule, prepared by the probation officer in circuit court cases, or by the supervisor or sheriff in magistrate court cases, specifically setting forth the times when the offender may be absent from the offender's home and the locations the offender is allowed to be during the scheduled absences.

(4) A requirement that the offender is not to commit another crime during the period of home incarceration ordered by the circuit court or magistrate.

(5) A requirement that the offender obtain approval from the probation officer or supervisor or sheriff before the offender changes residence or the schedule described in subdivision (3) of this section.

(6) A requirement that the offender maintain:

(A) A working telephone in the offender's home;

(B) If ordered by the circuit court or as ordered by the magistrate, an electronic monitoring device in the offender's home, or on the offender's person, or both; and

(C) Electric service in the offender's home if use of a monitoring device is ordered by the circuit court or any time home incarceration is ordered by the magistrate.

(7) A requirement that the offender pay a home incarceration fee set by the circuit court or magistrate. If a magistrate orders home incarceration for an offender, the magistrate shall follow a fee schedule established by the supervising circuit judge in setting the home incarceration fee. The magistrate or circuit judge shall consider the person's ability to pay in determining the imposition and amount of the fee;

(8) A requirement that the offender pay a fee authorized by the provisions of section four, article eleven-c of this chapter: Provided, That the magistrate or circuit judge considers the person's ability to pay in determining the imposition and amount of the fee; and

(9) A requirement that the offender abide by other conditions set by the circuit court or by the magistrate.

§62-11B-6. Circumstances under which home incarceration may not be ordered; exceptions.

(a) A circuit court or magistrate may not order home incarceration for an offender unless the offender agrees to abide by all of the requirements set forth in the court's order issued under this article.

(b) A circuit court or magistrate may not order home incarceration for an offender who is being held under a detainer, warrant or process issued by a court of another jurisdiction.

(c) A magistrate may not order home incarceration for an offender unless electronic monitoring is available and only if the county of the offender's home has an established program of electronic monitoring that is equipped, operated and staffed by the county supervisor or sheriff for the purpose of supervising participants in a home incarceration program: Provided, That electronic monitoring may not be required in a specific case if a circuit court upon petition thereto finds by order that electronic monitoring is not necessary.

(d) A magistrate may only order home incarceration for an offender convicted of a crime of violence against the person if the offender does not occupy the same home as the victim of the crime.

(e) Home incarceration is not available as a sentence if the language of a criminal statute expressly prohibits its application.

(f) Notwithstanding the provisions of subsection (c) of this section, a magistrate may order home incarceration through the imposition of supervision or participation in a community corrections program created pursuant to article eleven-c, chapter sixty-two of this code.
§62-11B-7. Home incarceration fees; special fund.

All home incarceration fees ordered by the circuit court pursuant to subdivision seven, section five of this article are to be paid to the circuit clerk, who shall monthly remit the fees to the sheriff. All home incarceration fees ordered by a magistrate pursuant to subdivision seven, section five of this article are to be paid to the magistrate court clerk, who shall monthly remit the fees to the county sheriff. The county sheriff shall establish a special fund designated the home incarceration services fund, in which the sheriff shall deposit all home incarceration fees collected pursuant to this section and remitted by the clerks. The county commission shall appropriate money from the fund to administer a home incarceration program, including the purchase of electronic monitoring devices and other supervision expenses, and may as necessary supplement the fund with additional appropriations. The county commission may also appropriate any excess money from the fund to defray the costs of housing county inmates or for community corrections programs, if the sheriff or other person designated to administer the fund certifies in writing to the county commission that a surplus exists in the fund at the end of the fiscal year.
§62-11B-11. Discretion of the court; provisions of article not exclusive.

(a) Home incarceration pursuant to the provisions of this article may be imposed at the discretion of the circuit court or magistrate court as an alternative means of incarceration for any offense. Except for offenses for which the penalty includes mandatory incarceration, home incarceration may not be considered an exclusive means of alternative sentencing.

(b) Upon conviction of a person, the circuit court, magistrate court or municipal court may, in its discretion, grant credit for time spent on home incarceration as a condition of bail toward any sentence imposed, if the person is found to have complied with the terms of bail.
§62-11B-13. Home incarceration for municipal court offenders.

Notwithstanding any provision of this article to the contrary, when a person is convicted under a municipal ordinance for which a period of incarceration may be imposed, the municipal court may enter an order for home incarceration as an alternative sentence to incarceration in a county or regional jail. A home incarceration sentence ordered by a municipal court pursuant to the provisions of this section is subject to the same requirements and conditions as a home incarceration sentence imposed by a circuit court or magistrate court pursuant to the provisions of this article. All home incarceration fees ordered by the municipal court pursuant to subdivision seven, section five of this article are to be paid to the municipal clerk, who shall monthly remit the fees to the sheriff.
ARTICLE 11C. THE WEST VIRGINIA COMMUNITY CORRECTIONS ACT.
§62-11C-1. Legislative intent.

(a) The Legislature hereby declares that the purpose of this article is to enable any county or class I or II municipality or any combination of counties and class I or II municipalities to develop, establish and maintain community-based corrections programs to provide the judicial system with sentencing alternatives for those offenders who may require less than institutional custody.

(b) The goals of developing community-based corrections programs include:

(1) Allowing individual counties or combinations of a county or counties and a class I or II municipality greater flexibility and involvement in responding to the problem of crime in their communities;

(2) Providing more effective protection of society and promoting efficiency and economy in the delivery of correctional services;

(3) Providing increased opportunities for offenders to make restitution to victims of crime through financial reimbursement;

(4) Permitting counties or combinations of a county or counties and a class I or II municipality to operate programs specifically designed to meet the rehabilitative needs of offenders;

(5) Providing appropriate sentencing alternatives with the goal of reducing the incidence of repeat offenders;

(6) Permitting counties or combinations of a county or counties and a class I or II municipality to designate community- based programs to address local criminal justice needs;

(7) Diverting offenders from the state regional jail or correctional facilities by punishing them with community-based sanctions, thereby reserving state regional jail or correctional facilities for those offenders who are deemed to be most dangerous to the community; and

(8) Promoting accountability of offenders to their community.
§62-11C-2. Community corrections subcommittee.

(a) A community corrections subcommittee of the governor's committee on crime, delinquency and correction is hereby created and assigned responsibility for screening community corrections programs submitted by community criminal justice boards for approval for funding by the governor's committee and for making recommendations as to the disbursement of funds for approved community corrections programs. The subcommittee is to be comprised of fifteen members of the governor's committee including: a representative of the division of corrections, a representative of the regional jail and correctional facility authority, a person representing the interests of victims of crime, an attorney employed by a public defender corporation, an attorney who practices criminal law, a prosecutor and a representative of the West Virginia coalition against domestic violence. At the discretion of the West Virginia supreme court of appeals, the administrator of the supreme court of appeals, a probation officer and a circuit judge may serve on the subcommittee as ex officio, non-voting members.

(b) The subcommittee shall elect a chairperson and a vice chairperson. Special meetings may be held upon the call of the chairperson, vice chairperson or a majority of the members of the subcommittee. A majority of the members of the subcommittee constitute a quorum.

(c) A working group of the community corrections subcommittee is hereby created to study safe and effective pretrial diversion programs for persons charged with domestic violence offenses and to recommend, based upon its findings, programs considered to be safe and effective in reducing incidences of domestic violence and educating persons charged with a domestic violence offense. The working group is to be comprised of the following members of the subcommittee: (1) If approved by the West Virginia supreme court of appeals, the circuit judge; (2) the prosecuting attorney; (3) the public defender or the criminal defense attorney; (4) the probation officer; and (5) the representative of the West Virginia coalition against domestic violence. The working group is to report its findings and recommendations to the subcommittee on or before the first day of July, two thousand two.

§62-11C-3. Duties of the governor's committee and the community corrections subcommittee.

(a) Upon recommendation of the community corrections subcommittee, the governor's committee shall propose for legislative promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code, emergency and legislative rules to:

(1) Establish standards for approval of community corrections programs submitted by community criminal justice boards;

(2) Establish minimum standards for community corrections programs to be funded, including requiring annual program evaluations;

(3) Make any necessary adjustments to the fees established in section four of this article;

(4) Establish reporting requirements for community corrections programs; and

(5) Carry out the purpose and intent of this article.

(b) Upon recommendation of the community corrections subcommittee, the governor's committee shall:

(1) Maintain records of community corrections programs including the corresponding community criminal justice board contact information and annual program evaluations, when available;

(2) Seek funding for approved community corrections programs from sources other than the fees collected pursuant to section four of this article; and

(3) Provide funding for approved community corrections programs, as available.

(c) The governor's committee shall submit, on or before the thirtieth day of September of each year, to the governor, the Speaker of the House of Delegates, the President of the Senate, and upon request to any individual member of the Legislature, a report on its activities during the previous year and an accounting of funds paid into and disbursed from the special revenue account established pursuant to section four of this article.
§62-11C-4. Special revenue account.
(a) There is hereby created in the state treasury a special revenue account to be known as the "West Virginia community corrections fund." Expenditures from the fund are for the purposes set forth in subsection (d) of this section 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 the fulfillment of the provisions set forth in article two, chapter five-a of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand two, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature. The West Virginia community corrections fund may receive any gifts, grants, contributions or other money from any source which is specifically designated for deposit in the fund.

(b) Beginning on the effective date of this article, in addition to the fee required in section nine, article twelve of this chapter, a fee not to exceed thirty dollars per month, unless modified by legislative rule as provided in section three of this article, is also to be collected from those persons on probation. This fee is to be based upon the person's ability to pay. The magistrate or circuit judge shall conduct a hearing prior to imposition of probation and make a determination on the record that the offender is able to pay the fee without undue hardship. The magistrate clerk or circuit clerk shall collect all fees imposed pursuant to this subsection and deposit them in a separate account. Within ten calendar days following the beginning of the calendar month, the magistrate clerk or circuit clerk shall forward the amount deposited to the state treasurer to be credited to the West Virginia community corrections fund.

(c) Beginning on the effective date of this article, in addition to the fee required in section five, article eleven-b of this chapter, a fee not to exceed five dollars per day, unless modified by legislative rule as provided in section three of this article, is also to be collected from those persons on home incarceration. The circuit judge, magistrate or municipal court judge shall consider the person's ability to pay in determining the imposition and amount of the fee. The circuit clerk, magistrate clerk or municipal court clerk shall collect all fees imposed pursuant to this subsection and deposit them in a separate account. Within ten calendar days following the beginning of the calendar month, the circuit clerk or municipal court clerk shall forward the amount deposited to the state treasurer to be credited to the West Virginia community corrections fund.

(d) The moneys of the West Virginia community corrections fund are to be disbursed by the governor's committee on crime, delinquency and correction, upon recommendation by the community corrections subcommittee, for the funding of community corrections programs and to pay expenses of the governor's committee in administering the provisions of this article, which expenses may not in any fiscal year exceed ten percent of the funds deposited to the special revenue account during that fiscal year.

(e) Any disbursements from the West Virginia community corrections fund allocated for community corrections programs by the governor's committee may be made contingent upon local appropriations or gifts in money or in kind for the support of the programs. Any county commission of any county or the governing body of a municipality may appropriate and expend money for establishing and maintaining community corrections programs.

(f) Nothing in this article may be construed to mandate funding for the West Virginia community corrections fund or to require any appropriation by the Legislature.
§62-11C-5. Establishment of programs.

(a) Any county or combination of counties or a county or counties and a class I or II municipality may establish and operate community corrections programs, as provided for in this section, to be used as alternative sentencing options for those offenders sentenced within the jurisdiction of the county or counties which establish and operate the program.

(b) Any county or combination of counties or a county or counties and a class I or II municipality that seek to establish programs as authorized in this section shall submit plans and specifications for the programs to be established, including proposed budgets, for review and approval by the community corrections subcommittee established in section three of this article.

(c) Any county or combination of counties or a county or counties and a class I or II municipality may establish and operate an approved community corrections program to provide alternative sanctioning options for an offender who is convicted of an offense for which he or she may be sentenced to a period of incarceration in a county or regional jail or a state correctional facility and for which probation or home incarceration may be imposed as an alternative to incarceration.

(d) Community corrections programs authorized by subsection (a) of this section may provide, but are not limited to providing, any of the following services:

(1) Probation supervision programs;

(2) Day fine programs;

(3) Community service restitution programs;

(4) Home incarceration programs;

(5) Substance abuse treatment programs;

(6) Sex offender containment programs;

(7) Licensed domestic violence offender treatment programs;

(8) Day reporting centers;

(9) Educational or counseling programs; or

(10) Drug courts.

(e) A county or combination of counties or a county or counties and a class I or II municipality which establish and operate community corrections programs as provided for in this section may contract with other counties to provide community corrections services.

(f) For purposes of this section, the phrase "may be sentenced to a period of incarceration" means that the statute defining the offense provides for a period of incarceration as a possible penalty.

(g) No provision of this article may be construed to allow a person participating in or under the supervision of a community corrections program to earn "good time" or any other reduction in sentence.
§62-11C-6. Community criminal justice boards.

(a) Each county or combination of counties or a county or counties and a class I or II municipality that seek to establish community-based corrections services shall establish a community criminal justice board.

(b) The community criminal justice board is to consist of no more than fifteen voting members.

(d) The community criminal justice board is to consist of the following members:

(1) The sheriff or chief of police, or if the board represents more than one county or municipality, at least one sheriff or chief of police from the counties represented;

(2) The prosecutor, or if the board represents more than one county, at least one prosecutor from the counties represented;

(3) If a public defender corporation exists in the county or counties represented, at least one attorney employed by any public defender corporation existing in the counties represented or, if no public defender office exists, one criminal defense attorney from the counties represented;

(4) One member to be appointed by the local board of education, or if the board represents more than one county, at least one member appointed by a board of education of the counties represented;

(5) One member with a background in mental health care and services to be appointed by the commission or commissions of the county or counties represented by the board;

(6) Two members who can represent organizations or programs advocating for the rights of victims of crimes with preference given to organizations or programs advocating for the rights of victims of the crimes of domestic violence or driving under the influence; and

(7) Three at-large members to be appointed by the commission or commissions of the county or counties represented by the board.

(c) At the discretion of the West Virginia supreme court of appeals, any or all of the following people may serve on a community criminal justice board as ex officio, non-voting members:

(1) A circuit judge from the county or counties represented;

(2) A magistrate from the county or counties represented; or

(3) A probation officer from the county or counties represented.

(d) Community criminal justice boards may:

(1) Provide for the purchase, development and operation of community corrections services;

(2) Coordinate with local probation departments in establishing and modifying programs and services for offenders;

(3) Evaluate and monitor community corrections programs, services and facilities to determine their impact on offenders; and

(4) Develop and apply for approval of community corrections programs by the governor's committee on crime, delinquency and correction.

(e) If a community criminal justice board represents more than one county, the appointed membership of the board, excluding any ex officio members, shall include an equal number of members from each county, unless the county commissions of each county agree in writing otherwise.

(f) If a community criminal justice board represents more than one county, the board shall, in consultation with the county commissions of each county represented, designate one county commission as the fiscal agent of the board.

(g) Any political subdivision of this state operating a community corrections program shall, regardless of whether or not the program has been approved by the governor's committee on crime, delinquency and correction, provide to the governor's committee required information regarding the program's operations as required by legislative rule.
§62-11C-7. Supervision or Participation Fee.

(a) A circuit judge, magistrate or municipal court judge may require the payment of a supervision or participation fee from any person required to be supervised by or participate in a community corrections program. The circuit judge, magistrate or municipal court judge shall consider the person's ability to pay in determining the imposition and amount of the fee.

(b) All fees ordered by the circuit court pursuant to this section are to be paid to the circuit clerk, who shall monthly remit the fees to the treasurer of the county designated as the fiscal agent for the board pursuant to section six of this article. All fees ordered by the magistrate court pursuant to this section are to be paid to the magistrate clerk, who shall monthly remit the fees to the treasurer of the county designated as the fiscal agent for the board pursuant to section six of this article. All fees ordered by the municipal court judge pursuant to this section are to be paid to the municipal court clerk who shall monthly remit the fees to the treasurer of the county designated as the fiscal agent for the board pursuant to section six of this article.
§62-11C-8. Local community criminal justice accounts.
(a) The treasurer of the county designated as the fiscal agent for the board pursuant to section six of this article shall establish a separate fund designated the community criminal justice fund. He or she shall deposit all fees remitted by the municipal, magistrate and circuit clerks pursuant to section seven of this article and all funds appropriated by a county commission pursuant to section seven, article eleven-b of this chapter, or any other provision of this code and all funds provided by the governor's committee for approved community corrections programs in the community criminal justice fund. Funds in the community criminal justice account are to be expended by order of the designated county's commission upon recommendation of the community criminal justice board in furtherance of the operation of an approved community corrections program.

(b) A county commission representing the same county as a community criminal justice board may require the community criminal justice board to render an accounting, at intervals the county commission may designate, of the use of money, property, goods and services made available to the board by the county commission and to make available at quarterly intervals an itemized statement of receipts and disbursements, and its books, records and accounts during the preceding quarter, for audit and examination pursuant to article nine, chapter six of this code.
§62-11C-9. Use of Community Corrections Programs for those not under court supervision.

(a) Subject to the availability of community corrections programs in the county, a written pre-trial diversion agreement, entered into pursuant to the provisions of section twenty-two, article eleven, chapter sixty-one of this code, may require participation or supervision in a community corrections program as part of the prosecution and resolution of charges.

(b) Any pretrial diversion program for a defendant charged with a violation of the provisions of section twenty-eight, article two, chapter sixty-one of this code, subsections (b) or (c), section nine, article two of said chapter where the alleged victim is a family or household member or the provisions of section two, article five, chapter seventeen-c of this code is to require the person charged to appear before the presiding judge or magistrate and either acknowledge his or her understanding of the terms of the agreement or tender a plea of guilty or nolo contendere to the charge or charges. Upon the defendant's motion, the court shall continue the matter for the period of time necessary for the person charged to complete the pretrial diversion program. If the person charged successfully completes the pretrial diversion program, the matter is to be resolved pursuant to the terms of the pretrial diversion agreement. If the person charged fails to successfully complete the pretrial diversion program, the matter, if no plea of guilty or nolo contendere has been tendered, is to be returned to the court's docket for resolution. If the person charged has tendered a plea of guilty or nolo contendere and fails to successfully complete the pretrial diversion program, the court shall accept the tendered plea of guilty or nolo contendere and proceed to sentencing.

(c) No provision of this article may be construed to limit the prosecutor's discretion to prosecute an individual who has not fulfilled the terms of a written pretrial diversion agreement by not completing the required supervision or participation in a community corrections program.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-9. Conditions of release on probation.

(a) Release on probation is conditioned upon the following :

(1) That the probationer may not, during the term of his or her probation, violate any criminal law of this or any other state or of the United States;

(2) That he or she may not, during the term of his or her probation, leave the state without the consent of the court which placed him or her on probation;

(3) That he or she complies with the conditions prescribed by the court for his or her supervision by the probation officer;

(4) That in every case wherein the probationer has been convicted of an offense defined in section twelve, article eight, chapter sixty-one of this code or article eight-b or eight-d of said chapter, against a child, the probationer may not live in the same residence as any minor child, nor exercise visitation with any minor child and has no contact with the victim of the offense: Provided, That the probationer may petition the court of the circuit wherein he or she was convicted for a modification of this term and condition of his or her probation and the burden rests upon the probationer to demonstrate that a modification is in the best interest of the child;

(5) That the probationer be required to pay a fee, not to exceed twenty dollars per month to defray costs of supervision: Provided, That the court conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay the fee without undue hardship. All moneys collected as fees from probationers pursuant to this subdivision are to be deposited with the circuit clerk who shall, on a monthly basis, remit the moneys collected to the state treasurer for deposit in the state general revenue fund; and

(6) That the probationer is required to pay the fee described in section four, article eleven-c of this chapter: Provided, That the court conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay the fee without undue hardship.

(b) In addition the court may impose, subject to modification at any time, any other conditions which it may deem advisable, including, but not limited to, any of the following:

(1) That he or she make restitution or reparation, in whole or in part, immediately or within the period of probation, to any party injured by the crime for which he or she has been convicted: Provided, That the court conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay restitution without undue hardship;

(2) That he or she pay any fine assessed and the costs of the proceeding in installments as the court may direct: Provided, That the court conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay the costs without undue hardship;

(3) That he or she make contribution from his or her earnings, in sums as the court may direct, for the support of his or her dependents; and

(4) That he or she, in the discretion of the court, be required to serve a period of confinement in the county jail of the county in which he or she was convicted for a period not to exceed one third of the minimum sentence established by law or one third of the least possible period of confinement in an indeterminate sentence, but in no case may the period of confinement exceed six consecutive months. The court has the authority to sentence the defendant within the six-month period to intermittent periods of confinement including, but not limited to, weekends or holidays and may grant to the defendant intermittent periods of release in order that he or she may work at his or her employment or for other reasons or purposes as the court may deem appropriate: Provided, That the provisions of article eleven-a of this chapter do not apply to intermittent periods of confinement and release except to the extent that the court may direct. If a period of confinement is required as a condition of probation, the court shall make special findings that other conditions of probation are inadequate and that a period of confinement is necessary.