HB198 By Representatives McCutcheon, Williams (D) and Hammon RFD Local Legislation Rd 1 07-FEB-12

A BILL TO BE ENTITLED AN ACT

Relating to Limestone County and the Thirty-ninth Judicial Circuit, to allow the District Attorney of the Thirty-ninth Judicial Circuit, to establish a discretionary pretrial diversion program and set basic operating standards for the program.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. For purposes of this act, the following terms shall have the following meanings:

(1) APPLICATION FEE. A one-time administrative fee imposed by the District Attorney of the Thirty-ninth Judicial Circuit as a condition precedent to participation in a pretrial diversion program.

(2) DISTRICT ATTORNEY. The elected District Attorney of the Thirty-ninth Judicial Circuit or any staff employed by the district attorney.

(3) LAW ENFORCEMENT. As defined in Section 41-8A-1(1), Code of Alabama 1975.

(4) LAW ENFORCEMENT OFFICER. As defined in Section 36-25-1(15), Code of Alabama 1975, including, but not limited to, police personnel, sheriff personnel, district attorney investigator, Department of Human Resources personnel, parole and probation personnel, community corrections office personnel, and court referral office personnel, whether employed in the State of Alabama or elsewhere.

(5) OFFENDER. Any person charged with a criminal offense, including, but not limited to, any felony, misdemeanor, violation, or traffic offense, as defined by the Code of Alabama 1975, which was allegedly committed in the jurisdiction of the Thirty-ninth Judicial Circuit.

(6) PRETRIAL DIVERSION PROGRAM or PROGRAM. A program that allows the imposition of certain conditions of behavior and conduct by the district attorney or by a designated agency for a specified period of time upon an offender which would allow the offender to have his or her charges reduced, dismissed with or without prejudice, or otherwise mitigated should all of the conditions be met during the time frame set by the district attorney.

(7) SERIOUS PHYSICAL INJURY. As defined in Section 13A-1-2(14), Code of Alabama 1975.

(8) SUPERVISION FEE. Any fee imposed by any agency providing supervision or treatment of an offender.

Section 2. (a) The District Attorney of the Thirty-ninth Judicial Circuit of Alabama may establish a pretrial diversion program.

(b) All discretionary powers endowed by the common law and provided by statutes and acts of this state or powers or discretion otherwise provided by law for the District Attorney of the Thirty-ninth Judicial Circuit shall be retained.

(c) The pretrial diversion program shall be under the direct supervision and control of the district attorney, and the district attorney may contract with any agency, person, or corporation, including, but not limited to, the Limestone County Community Correction Program and the Drug Court for Limestone County, for services related to this act. The district attorney may employ necessary persons to accomplish this act and such persons shall serve at the pleasure of the district attorney.

Section 3. An offender may apply to the district attorney for admittance into the Pretrial Diversion Program. The application shall be made in the time and manner designated by the district attorney.

Section 4. Admittance into the pretrial diversion program is in the absolute discretion of the district attorney. However, an offender deemed by the district attorney to be a threat to the safety or well-being of the community shall not be eligible for the program. Further, an offender charged with the following offenses shall be ineligible for admittance:

(1) A Class A felony or capital offense.

(2) An offense which intentionally, knowingly or recklessly resulted in death or serious physical injury to a person.

(3) An offense involving the use of a deadly weapon.

(4) Chemical endangerment of a child.

(5) An offense involving violence in which the victim was a child under 14 years of age, a law enforcement officer, a school officer, a correctional officer, active duty military personnel of the United States Armed Forces, or an elderly person over the age of 65.

(6) An offense involving violence in which the victim was an employee of any school system which lies within the geographic boundaries of the Thirty-ninth Judicial Circuit.

(7) Trafficking in controlled substances or marijuana.

(8) Driving under the influence of alcohol, driving under the influence of a controlled substance, driving under the combined influence of alcohol and a controlled substance, or driving under the influence of any substance which impairs the mental or physical faculties wherein the offender has been previously charged with or convicted of driving under the influence of alcohol, driving under the influence of a controlled substance, driving under the combined influence of alcohol and a controlled substance, or driving under the influence of any substance which impairs the mental or physical faculties, or where a chemical test was given to the offender and the results of the chemical test revealed a greater than .15 percentage by weight of alcohol in the blood.

(9) Bribery.

(10) Any offense wherein the offender is a public official and the charge is related to the offender's capacity as a public official.

(11) Any offense wherein a holder of a commercial driver's license, an operator of a commercial motor vehicle, or a commercial driver learner permit holder has been charged with a violation of a traffic law in this state pursuant to Section 32-6-49.23, Code of Alabama 1975.

Section 5. (a) The district attorney may consider an offender for the pretrial diversion program based on any of the following circumstances:

(1) There is a probability justice will be served if the offender is placed in the program.

(2) It is determined the needs of the state and of the offender can be met through the program.

(3) The offender appears to pose no substantial threat to the safety and well-being of the community.

(4) It appears the offender is not likely to be involved in further criminal activity.

(5) The offender will likely respond to rehabilitative treatment or counseling.

(b) The district attorney may waive any of the standards specified in subsection (a) if justice or special circumstances dictate.

Section 6. (a) Upon application by an offender for admission into the pretrial diversion program, and prior to admission and as a part of the district attorney's evaluation process, the district attorney may require the offender to furnish information concerning past criminal history, education history, work record, family history, medical or psychiatric treatment or care prescribed or received, psychological tests taken, and any other information concerning the offender which the district attorney believes has a bearing on the decision of whether or not the offender should be admitted to the program.

(b) The district attorney may require the offender to submit to any type of test or evaluation process or interview the district attorney deems appropriate in evaluating the offender for admittance into the program. The costs of any test or evaluation shall be paid by the offender or as otherwise agreed to or provided for by this act. Further, the offender shall provide to the district attorney written consent to allow the district attorney to receive any educational, work, medical, psychiatric, psychological, or other records deemed necessary by the district attorney for the evaluation process.

Section 7. (a) Following the decision of the district attorney to admit the offender into the pretrial diversion program, but prior to entry, the district attorney and the offender shall enter into a written agreement stating the conditions of the participation of the offender in the program. The agreement shall include, but not be limited to, the following:

(1) A voluntary waiver of the offender's right to a speedy trial.

(2) An agreement to the tolling, while in the program, of periods of limitations established by statute or rules of court.

(3) An agreement to the conditions of the program established by the district attorney.

(4) If there is a victim of the charged crime, an agreement to a restitution repayment within a specified period of time and in an amount to be determined by the district attorney taking into account circumstances of the offender and the victim.

(5) A waiver in writing of the offender's right to a jury trial.

(6) A statement as to the offender's involvement in the offense charged, which statement shall be admissible in any criminal trial.

(7) If requested by the district attorney, a written plea of guilty to the offense charged or agreed upon included offense.

(8) An agreement in writing to the jurisdiction of the court beyond completion of any disposition of the case, end of sentence, termination of parole or probation, or conclusion of the pretrial diversion program to enforce collection of restitution, cost of court, fines, fees, or other agreed upon or court ordered monies, pursuant to Section 12-17-225, Code of Alabama 1975.

(b) In addition to the requirements set forth in subsection (a), or as a condition of continued participation in the program, the district attorney may require the offender to agree to any of the following terms or conditions:

(1) Participating in substance abuse treatment.

(2) Participating in an education setting to include, but not be limited to, K-12, college, job training, trade school, GED classes, or basic education courses.

(3) If appropriate, learning to read and write the English language.

(4) Providing financial support of his or her children or payment of any court ordered child support.

(5) Refraining from the use of drugs or alcohol or frequenting places where drugs or alcohol are sold or used.

(6) Not committing any criminal offense.

(7) Refraining from contact with certain named persons or premises.

(8) Maintaining or seeking employment.

(9) Not leaving the State of Alabama without prior written consent of the district attorney or supervising agency or personnel.

(10) Maintaining a residence approved by the district attorney or supervising agency or personnel.

(11) Attending individual, group, financial, chemical addiction, or family, mental health, or anger management counseling.

(12) Paying all court costs and fees, fines, and worthless checks and obeying any other lawful court order associated with the offense for which the offender has entered the program, or any other case.

(13) Refraining from the possession or use of any deadly weapon or dangerous instrument.

(14) Paying supervision fees and application fees pursuant to the provisions of this act.

(15) Observing curfews or home detention or travel constraints as set out in the agreement signed by the offender.

(16) Having restitution, court costs, fees, child support, and any other moneys withheld or garnished from the wages or salary of the offender or withheld from any Alabama income tax due the offender or from any available insurance policy applied to the above.

(17) Being admitted to a drug or alcohol treatment program on an inpatient or outpatient basis or receive other treatment alternatives for substance abuse.

(18) Submitting to periodic or random drug testing as a part of the program and other terms and conditions related to substance abuse as the district attorney may direct.

(19) Any other term or condition as the district attorney or his or her designee and the offender may agree to in the above-stated agreement, it being the purpose of this act to allow the district attorney broad discretion in designing a program specifically for each offender and his or her particular circumstances.

(20) When applicable, paying supervision fees to the agency or entity responsible for monitoring and verifying the offender's compliance with the terms of the program set forth by the district attorney. Such fees shall be paid by the offender to the supervising entity in a timely manner.

Section 8. (a) An offender may be assessed a nonrefundable application fee when the offender is approved for the pretrial diversion program. The amount of the assessment for participation in the program shall be in addition to any court costs or fees and assessments for the crime victim's compensation fund, Department of Forensic Sciences assessments, drug, alcohol, or anger management treatment required by law, and any costs of supervision, treatment, and restitution for which the offender may be responsible. A schedule of payments for any of these fees may be established by the district attorney.

(b) The amount of the application fee shall be established by the district attorney.

(c) The application fee shall be allocated and paid to the following offices or entities as follows:

(1) Ten percent shall be allocated to the appropriate circuit or district court clerk in which the case originates to the clerk's fund as provided by law and shall be available for use, at the discretion of the clerk, to support the office of the clerk.

(2) Five percent shall be allocated to Limestone County Children's Advocacy Center for the use of the center, at the discretion of the head of the center, for law enforcement purposes. If the Limestone County Children's Advocacy Center should be closed, this allocation shall revert to the Limestone County District Attorney's Solicitor's Fund.

(3) Five percent shall be allocated to the Limestone County Family Resource Center for the use of the center, at the discretion of the head of the center, for law enforcement purposes. If the Limestone County Family Resource Center should be closed, this allocation shall revert to the Limestone County District Attorney's Solicitor's Fund.

(4) The remainder of the application fees shall be allocated to the Limestone County District Attorney's Solicitor's Fund and shall be available, at the discretion of the district attorney, for any law enforcement purpose.

(d) An applicant offender may not be denied access into the pretrial diversion program based solely on the offender's inability to pay the application fee. Application fees may be waived or reduced, for just cause, including indigency of the offender, at the discretion of the district attorney. Any determination of the indigency of the offender for purposes of program fee mitigation shall be made by the district attorney but such mitigation shall be done only upon a determination by the district attorney that there is no reasonable likelihood within the reasonably foreseeable future that the offender will have the ability to pay the application fee.

Section 9. (a) Application fees required by this act shall be collected by the appropriate circuit or district court clerk of the Thirty-ninth Judicial Circuit. The fees shall be disbursed to the appropriate court clerk, the Limestone County Children's Advocacy Center, the Limestone County Family Resource Center, and the Limestone County District Attorney's Solicitor's Fund, as allocated by Section 8, and as other costs and fees are disbursed to the Limestone County District Attorney's Solicitor's Fund.

(b) All fees paid by offenders which are disbursed by the court clerk to the office of the district attorney shall be used to pay costs associated with the administration of the pretrial diversion program or for other law enforcement purposes deemed necessary by the district attorney.

Section 10. (a) Upon acceptance of an offender into the pretrial diversion program, the district attorney and the offender shall submit the offender's written application together with the offender's statement of facts, the district attorney's acceptance of the offender, and the agreement between the district attorney and the offender to the court presiding over the offender's affected case. The offender shall also enter a plea of guilty to the charge(s) involved.

(b) Upon acceptance of the agreement, the court shall withdraw and file the case or otherwise place it on an administrative docket until such time as the court has been notified that the offender has either fulfilled the terms of the agreement or has been terminated from the program. However, acceptance of the plea of guilty and imposition of punishment by the court shall be deferred until and unless the offender is terminated from the program. In the event the offender is terminated from the program, the court shall accept the plea of guilty and impose appropriate punishment in the same manner as with any plea of guilty or finding of guilt.

(c) Upon successful completion of the program by the offender, the district attorney shall notify the court in writing of that fact together with a request that the case be dismissed whereupon the court shall enter an order to that effect and the offender shall be discharged.

(d) Regardless of whether the offender successfully completes the program or is terminated from the program, the offender is liable for and shall pay any and all court costs and fees, restitution, victim's compensation fund assessment, and any and all other fees and assessments in the same manner as if the offender had not applied for entry into the program and had been found guilty of the offense involved. Notwithstanding the foregoing, no such costs, fees, restitution, or assessments shall be waived or remitted, absent an express agreement to that effect between the district attorney and the offender, without a finding that the offender does not have the reasonable ability to pay within the reasonably foreseeable future.

Section 11. (a) After any violation of any program terms or conditions or upon any breach of any program agreement by the offender, the district attorney may do any of the following:

(1) Continue the agreement with or without modification.

(2) Terminate the agreement.

(3) Require the offender to adopt a new agreement as a condition of continued participation.

(b) The district attorney may waive a violation for good cause showing why the offender should stay in the program.

Section 12. In no event shall the district attorney, the Limestone County Community Corrections program, the Limestone County Drug Court, or any other agency or service provider have any liability, criminal or civil, for the conduct of any offender while participating in the pretrial diversion program or for acceptance of an offender into the program.

Section 13. The district attorney, to the extent practicable, shall utilize the services of community corrections programs established pursuant to Section 15-18-170, Code of Alabama 1975, to provide for the supervision of offenders in the pretrial diversion program.

Section 14. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, that declaration shall not affect the part which remains.

Section 15. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Limestone County

Counties

Pretrial Diversion Programs

District Attorneys

Crimes and Offenses

Criminal Law and Procedure

Judicial Circuits

Law Enforcement

Courts