HB634

ENROLLED, An Act,

Relating to the City of Tuscaloosa; to allow the City of Tuscaloosa 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. (a) The City of Tuscaloosa of Alabama may establish a pretrial diversion program.

(b) All discretionary powers endowed by a common law and provided by statutes and acts of this state or powers or discretion otherwise provided by law for the City of Tuscaloosa shall be retained.

(c) The pretrial diversion program shall be under the direct supervision and control of the city and the city may contract with any agency, person, or corporation for services related to this act. The city may employ necessary persons to accomplish this act and those persons shall serve at the pleasure of the city.

Section 2. For the purposes of this act, the following terms shall have the following meanings:

(1) APPLICATION FEE. A one-time administrative fee imposed by the City of Tuscaloosa as a condition precedent to participation in a pretrial diversion program.

(2) CITY ATTORNEY. The City Attorney of the City of Tuscaloosa or any legal staff employed by the city 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, whether employed in the State of Alabama or elsewhere.

(5) OFFENDER. Any person charged with a criminal offense, including, but not limited to, any misdemeanor, violation, or traffic offense, as defined by the Code of Alabama 1975, which was allegedly committed in the corporate limits or police jurisdiction of the City of Tuscaloosa.

(6) PRETRIAL DIVERSION PROGRAM OR PROGRAM. A program that allows the imposition by the city or by a designated agency of certain conditions of behavior and conduct for a specified period of time upon an offender which 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 city attorney.

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

(8) SUPERVISION FEE. Any fee other than the application fee imposed by any agency providing supervision of treatment of the offender.

Section 3. An offender may apply to the city for admittance into the pretrial diversion program.

Section 4. Admittance into the pretrial diversion program is in the sole discretion of the city attorney. An offender deemed by the city attorney to be a threat to the safety or well-being of the community shall not be eligible for the program. An offender charged with any of the following types of offenses shall be ineligible for admittance:

(1) Any offense involving violence or aggression resulting in injury to a law enforcement officer.

(2) Any offense involving eluding or attempting to elude a law enforcement officer.

(3) Any offense involving violence where weapons are used or where children are victims.

(4) Any driving under the influence charge where serious physical injuries are involved.

(5) Any offense wherein the offender is a public official and the charge is related to the capacity of the offender as a public official.

(6) The person may not hold a commercial driver license (CDL) issued in any U.S. state, any U.S. possession, any U.S. territory, or any U.S. insular area, or has no conviction for which a commercial driver license was required.

Section 5. (a) The city 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, city, 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 if the offender complies with all conditions imposed pursuant to the program.

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

(6) The need for restitution for the victim from the offender outweighs the interest of the state and city for incarceration of the offender.

(b) The city 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 thereto and as a part of the evaluation process of the city attorney, the city 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 city attorney believes has a bearing on the decision whether or not the offender should be admitted to the program.

(b) The city attorney may require the offender to submit to any type of test or evaluation process or interview the city 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. The offender shall provide the city attorney written consent to allow the city attorney to receive any educational, work, medical, psychiatric, psychological, or other records deemed necessary by the city attorney for the evaluation process.

Section 7. (a) Following the decision of the city attorney to admit the offender into the pretrial diversion program, but prior to entry, the city 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 right of the offender to a speedy trial.

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

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

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

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

(6) A truthful and complete statement by the offender as to the involvement of the offender in the offense charged, which statement shall be admissible in any criminal trial.

(7) Submission of a written plea of guilty to the offense or offenses charged or agreed upon included offenses, together with an agreement as to whether the case is to be dismissed upon successful completion of the program, and an agreement, if there be any, as to the recommended sentence should a sentence be imposed.

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

(1) To participate in substance abuse treatment.

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

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

(4) To financially support his or her children or pay any court ordered child support.

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

(6) To not commit any criminal offense.

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

(8) To maintain or seek employment.

(9) To not leave the State of Alabama without prior written consent of the city attorney or supervising agency or personnel.

(10) To maintain a residence approved by the city attorney or supervising agency or personnel.

(11) To attend individual, group, financial, chemical addiction, family, mental health, sex offender, or anger management counseling.

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

(13) To refrain from the possession or use of any deadly weapon or dangerous instrument as defined in Section 13A-1-2, Code of Alabama 1975.

(14) To pay supervision fees and application fees pursuant to this act.

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

(16) To have 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, or forfeited from any other real or personal property of the offender, and applied to the above.

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

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

(19) To waive in writing the right of the offender to a probation hearing in the event of termination or withdrawal from the program.

(20) To any other terms or conditions as the city 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 city attorney broad discretion in designing a program specifically for each offender and his or her particular circumstances.

(21) When applicable, to be required to pay supervision fees to the agency or entity responsible for monitoring and verifying the compliance of the offender with the terms of the program set forth by the city attorney. The 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, 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 city attorney.

(b) The following application fees shall be applied to offenders accepted into the program:

(1) Misdemeanor offenses and Driving Under the Influence: One thousand dollars ($1,000).

(2) Traffic offenses not including DUI: Five hundred dollars ($500).

(3) Violations: One hundred dollars ($100).

(c) The amount of the application fee for each offender shall be established by the city attorney.

(d) The application fee shall be allocated to the general fund of the City of Tuscaloosa except that a minimum of 25 percent shall fund technology and training for law enforcement and a minimum of 25 percent shall fund the Indigent Treatment Fund as established by the City of Tuscaloosa.

(e) An applicant offender may not be denied access into the pretrial diversion program based solely on the inability of the offender 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 city. Any determination of the indigency of the offender for purposes of program fee mitigation shall be made by the city but such mitigation shall be done only upon the determination by the city 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. Application fees required by this act shall be collected by the court clerk of the Tuscaloosa Municipal Court. The fees shall be disbursed to each entity or department as allocated by Section 8.

Section 10. (a) Upon acceptance of an offender into the pretrial diversion program by the city attorney, the city attorney and the offender shall submit the written application of the offender together with the statement of facts of the offender, the acceptance of the offender by the city attorney, and the agreement between the city attorney and the offender to the court presiding over the affected case of the offender for the approval of the court. The offender shall also enter a plea of guilty to the charge or charges involved. If the court rejects the agreement and guilty plea, any money paid by the offender in satisfaction of the application fee shall be refunded to the offender. The offender shall still be liable for any actual expenses already incurred by the city attorney or any agency or service provider in furtherance of the application and evaluation process and the same will be deducted from any money so refunded to the offender.

(b) Upon approval of the agreement and acceptance of the guilty plea, the court shall expressly retain jurisdiction of the case, any other provision of law notwithstanding, and may 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 fulfilled the terms of the agreement, has been terminated from the program, or otherwise withdrawn from the program. Imposition of punishment by the court shall be deferred until the offender has successfully completed the program or is terminated from the program.

(c) In the event the offender is terminated from the program, the court shall impose appropriate punishment in the same manner as with any plea of guilty or finding of guilty and shall not be bound by the terms of agreement as to what punishment to impose.

(d) Upon successful completion of the program by the offender, the city attorney shall notify the court in writing of that fact together with a request that the court enter an order of disposition of the case pursuant to the agreement between the offender and the city attorney.

(e) Regardless of whether the offender successfully completes the program or withdraws from or is terminated from the program, the offender will still be liable for and required to 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 or offenses involved. No costs, fees, restitution, or assessments shall be waived or remitted, absent an express agreement to that effect between the city attorney and the offender, without a finding by the court that the offender does not have the reasonable ability to pay the same 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 city attorney may do any of the following:

(1) Continue the agreement with or without modification.

(2) Terminate the offender from the pretrial diversion program.

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

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

Section 12. In no event shall the city attorney 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 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 14. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Tuscaloosa County

Tuscaloosa

Municipalities

Pretrial Diversion Programs

Crimes and Offenses

Criminal Law and Procedure

Courts

City Attorneys