Senate Bill No. 162
(By Senators Hunter and Stollings)
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[Introduced January 10, 2008; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §61-11-22 of the Code of West Virginia,
1931, as amended, relating to driving under the influence of
alcohol; and authorizing the creation of driving under the
influence of alcohol (DUI) court programs as an alternative to
sentencing and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That §61-11-22 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-22. Pretrial diversion agreements; conditions; drug or
driving under the influence (DUI) 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 subsection (b)
or (c), section nine, article two of said chapter where the alleged
victim is a family or household member as defined by the provisions
of 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
or
driving under the influence (DUI) court program as a diversion
program or an alternative sentencing program, or both, to address
offenses that stem from substance
or alcohol use or abuse.
(2) For the purposes of this section, "drug
or driving under
the influence (DUI) court program" means a program designed to
achieve a reduction in recidivism and substance
or alcohol abuse
among nonviolent, substance
or alcohol abusing offenders by
increasing their likelihood for successful rehabilitation through
early, continuous, and intense supervised treatment, mandatory
periodic drug
or alcohol testing and the use of appropriate
sanctions and other rehabilitation services.
(3) A drug
or driving under the influence (DUI) 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;
(C) Vigilant supervision and monitoring procedures;
(D) Random substance
or alcohol 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
or driving under the
influence (DUI) 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
(C) The offender admits to having a substance
or alcohol abuse
addiction.
(5) The court may provide additional eligibility criteria it
considers appropriate.
NOTE: The purpose of this bill is to authorize the creation of
DUI court programs along with drug court programs as an alternative
to sentencing for certain persons guilty of driving under the
influence of alcohol offenses.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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