HB573

ENROLLED, An Act,

To provide for the establishment of a pretrial diversion program in the 26th Judicial Circuit in Russell County; to set basic operating standards for the program; and to provide for program fees and their distribution.

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 26th Judicial Circuit as a condition precedent to participation in a pretrial diversion program.

(2) DISTRICT ATTORNEY. The District Attorney for the 26th Judicial Circuit of Alabama in Russell County, or any of his or her staff.

(3) LAW ENFORCEMENT. Any activity pertaining to crime prevention, control, or reduction or enforcement of the criminal law, including, but not limited to, police efforts to prevent, control, or reduce crime or apprehend criminals, activities of courts having criminal jurisdiction and related agencies, including prosecutorial and defender services, activities of corrections, probation, or parole or community correction authorities and programs relating to the prevention, control, or reduction of juvenile delinquency or alcoholism, narcotic and drug addiction, and domestic violence.

(4) LAW ENFORCEMENT OFFICER. As defined in Section 36-25-1(15), Code of Alabama 1975.

(5) OFFENDER. Any person charged with a criminal offense, including, but not limited to, any felony, misdemeanor, violation, traffic offense, or violation of a municipal ordinance which offense was allegedly committed in the jurisdiction of the 26th 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 without prejudice, or otherwise mitigated should all of the conditions be met during the time frame set by the district attorney.

(7) PUBLIC OFFICIAL. Includes all elected and appointed government officials as well as all employees of any federal, state, county, or municipal agency including, but not limited to, schools, colleges, and universities.

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

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

Section 2. (a) The district attorney may establish a pretrial diversion program within the 26th Judicial Circuit in Russell County.

(b) All discretionary powers endowed by the common law, provided for by statute or acts of this state, or otherwise provided by law for the district attorneys of this state shall be retained by the District Attorney of the 26th Judicial Circuit.

(c) The pretrial diversion program shall be under the direct supervision and sole control of the district attorney.

(d) The district attorney may contract with any agency, person, or corporation for services related to this act and may employ persons necessary to accomplish this act who shall serve at the pleasure of the district attorney.

Section 3. (a) An offender may apply to the district attorney for admittance to the pretrial diversion program.

(b) Admittance into the pretrial diversion program is in the absolute discretion of the district attorney and decisions to admit or to deny admittance to the program shall not be subject to review by any court or other agency. Moreover, 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.

(c) An offender charged with the following offenses shall be ineligible for admittance:

(1) Any Class A felony or capital offense.

(2) Any offense involving death or serious physical injury to any person, other than the offender.

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

(4) Trafficking in controlled substances or marijuana or manufacturing controlled substances in the first degree.

(5) Bribery of a government or public official or the acceptance of bribes by such officials.

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

(7) Any sex offense involving forcible compulsion or incapacity, or any sex offense wherein the victim is under 12 years of age.

(8) Any traffic offense wherein the offender is a holder of a commercial driver's license or a commercial driver learner permit or is an operator of a commercial motor vehicle.

Section 4. (a) In determining whether an offender may be admitted into the pretrial diversion program, it shall be appropriate for the district attorney to consider any or all of the following circumstances:

(1) There is a probability that justice will be served if the offender is placed into the pretrial diversion program.

(2) It is determined that the needs of the community and 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 or law enforcement.

(4) The offender appears unlikely 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 circumstances dictate.

Section 5. (a) Upon application by an offender for admission into the pretrial diversion program and prior to admission thereto 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 history, 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, in his or her sole discretion, believes has a bearing on the decision to admit or deny the offender to the program.

(b) The district attorney may require the offender to submit to any type of test or evaluation process or interview which the district attorney deems appropriate in evaluating the offender. The costs of any test or evaluation shall be paid by the offender. The offender shall provide the district attorney, upon request, with written consent to receive any additional educational, work, medical, psychiatric, and psychological records or any other records deemed necessary by the district attorney.

Section 6. (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, all of the following:

(1) A voluntary waiver of the offenders 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 pay restitution within a specified period of time and according to a specified payment schedule setting forth the amounts of each payment. The offender shall further agree to extend 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, court costs, fines, fees, or other agreed upon or court ordered monies.

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

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

(7) The entering of a plea of guilty to the offense charged.

(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 or all of the following terms or conditions:

(1) Participation in a substance abuse treatment program.

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

(3) Financially supporting his or her children or paying any court ordered child support.

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

(5) Not committing any new criminal offense.

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

(7) Seeking and maintaining employment.

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

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

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

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

(12) Paying supervision, application, and any other fees incurred pursuant to this program.

(13) Observing curfews or home detention or travel constraints as set out by the district attorney.

(14) Admission to an out-patient or in-patient drug or alcohol treatment program.

(15) Submission to periodic or random drug testing.

(16) When applicable, paying supervision fees to any agency or entity responsible for monitoring and verifying the offender's compliance with the terms of the program as set forth by the district attorney.

(17) Any other terms or conditions as the district attorney or his or her designee and the offender may agree to, 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.

Section 7. (a) An offender may be assessed a non-refundable application fee when the offender is approved for the pretrial diversion program. The amount of the application fee shall be in addition to any other costs assessed pursuant to this program. A schedule of payments for the application fee or any other fees may be established by the district attorney.

(b) The following application fees as set by the district Attorney shall apply to offenders accepted into the program:

(1) Felony offenses: Up to one thousand dollars ($1,000).

(2) Misdemeanors and DUI offenses: Up to seven hundred fifty dollars ($750).

(3) Traffic offenses and violations: Up to five hundred dollars ($500).

(c) The exact amount of the application fee in each case shall be established by the district attorney.

(d) An applicant 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 reduced or waived, for just cause, at the discretion of the district attorney.

Section 8. All fees paid to the district attorney by offenders pursuant to this act shall be paid into the District Attorney’s Solicitor Fund. The funds shall be used to pay any costs associated with the administration of this program or for any other lawful purpose of the district attorney’s office including, but not limited to, salaries, rent, vehicles, uniforms, telephones, postage, office supplies and equipment, training and travel costs, service contracts, or professional services.

Section 9. (a) Upon acceptance of an offender into the pretrial diversion program, the district attorney 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 case. The offender shall then enter a plea of guilty to the charge.

(b) Upon acceptance of the plea, 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, 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 impose punishment in the same manner as any other plea of guilty.

(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 plea of guilty be set aside and the case be dismissed.

(d) Regardless of whether the offender successfully completes the program or is terminated from the program, the offender shall be liable for any and all court costs, fees, restitution, and any other assessment levied by the court.

Section 10. 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 either of the following:

(1) Modify the terms, conditions, and requirements of the program for the offender.

(2) Terminate the offender from the program.

Section 11. An offender who is accepted into the program shall pay all costs thereof including, but not limited to, treatment costs, testing costs, and monitoring costs.

Section 12. The district attorney, his or her staff, any treatment provider, monitoring provider, or any other agency or service provider shall not 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 pretrial diversion program may apply for grants, may accept gifts from individuals or corporations, and may receive funding appropriations from federal, state, county, or local governments or agencies.

Section 14. The district attorney may utilize the services of the Russell County Drug Court and Russell County Community Corrections and may contract with any other agency, person, or corporation for services related to this act and may employ such persons as necessary to accomplish this act.

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

Russell County

Counties

Pretrial Diversion Programs

District Attorneys

Crimes and Offenses

Criminal Law and Procedure

Judicial Circuits

Law Enforcement