SB481

By Senator Irons

ENROLLED, An Act,

To provide for the establishment of a pretrial diversion program in the 11th Judicial Circuit in Lauderdale 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) DISTRICT ATTORNEY. The district attorney of the 11th Judicial Circuit in Lauderdale County or any of his or her staff.

(2) LAW ENFORCEMENT or LAW ENFORCEMENT OFFICER. Any person who is employed by an agency or department whose purpose is to protect the citizens, including, but not limited to, police personnel, sheriff personnel, a district attorney investigator, Department of Human Resources personnel, parole and probation personnel, community corrections office personnel, and court referral office personnel, whether that agency or department is in this state or located elsewhere.

(3) OFFENDER. Any person charged with a crime as defined by the Code of Alabama 1975, or municipal ordinance, which was committed in the jurisdiction of the state.

(4) SERIOUS PHYSICAL INJURY. As that term is defined by Section 13A-1-2 of the Code of Alabama 1975.

Section 2. (a) The district attorney may establish a pretrial diversion program within the 11th Judicial Circuit in Lauderdale County.

(b) All discretionary powers endowed by the common law, provided for by statute and acts of this state, or otherwise provided by law for the district attorneys of this state shall be retained.

(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 charged with any of the following criminal offenses in a circuit court or district court may apply to the district attorney for admittance to the pretrial diversion program:

(1) A drug offense, excluding trafficking in controlled substances or cannabis as provided in Section 13A-12-231 of the Code of Alabama 1975, or manufacturing of controlled substances in the first degree as provided in Section 13A-12-218 of the Code of Alabama 1975.

(2) A property offense.

(3) A misdemeanor.

(4) A traffic or conservation offense, except that a holder of a commercial driver's license, an operator of a commercial motor vehicle, or a commercial driver learner permit holder who is charged with a violation of a traffic law in this state shall not be eligible for a deferred prosecution program, diversion program, or any deferred imposition of judgment program pursuant to Section 32-6-49.23 of the Code of Alabama 1975.

(b) An offender charged with any of the following offenses is ineligible for consideration for the pretrial diversion program:

(1) Any Class A felony or capital offense.

(2) Any offense involving serious physical injury to a person.

(3) 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 military, or an individual over the age of 65.

(4) Any offense involving death.

(5) A person deemed by the district attorney to be a threat to the safety or well-being of the community.

(6) Bribery of a government or public official.

(7) Any offense wherein the offender is a public official and the charge is related to his or her capacity as a public official.

(8) Abduction or kidnapping.

(9) Any sex offense involving forcible compulsion or incapacity.

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 of the following circumstances:

(1) The offender is 18 years of age or older at the time the offense was committed.

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

(3) It is determined the needs of the community and of the offender can be met through the pretrial diversion program.

(4) The offender appears to pose no substantial threat to the safety and well-being of the community or law enforcement.

(5) The offender is not likely to be involved in further criminal activity.

(6) The offender will likely respond to rehabilitative treatment.

(7) The expressed wish of the victim not to prosecute.

(8) Undue hardship upon the victim.

(9) Whether the victim or the offender has medical, psychiatric, or vocational difficulties that would impede the administration of justice.

(10) Whether there is a reason to believe that the victim or offender will benefit from and cooperate with a pretrial diversion program.

(11) The impact of criminal charges or prosecution upon the victim, witnesses, or the community.

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

Section 5. (a) Admittance into the pretrial diversion program shall be in the sole discretion of the district attorney. To assist the district attorney in the decision to admit the offender into the pretrial diversion program, the district attorney, prior to the offender being admitted into the pretrial diversion program or as a part of the district attorney's evaluation process, may require an offender to furnish to the district attorney information concerning past criminal history, education history, work history, family history, medical or psychiatric treatment history, psychological tests, or any other information concerning the offender which the district attorney believes is applicable to determine whether the offender should be admitted into the pretrial diversion program.

(b) The district attorney may require the offender to submit to any test or evaluation process the district attorney deems appropriate in evaluating the offender for admittance into the pretrial diversion 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.

Section 6. (a) An offender who enters into the pretrial diversion program shall satisfy each of the following requirements:

(1) Voluntarily waive, in writing, his or her right to a speedy trial.

(2) Agree, in writing, to the tolling of periods of limitations established by statutes or rules of court while in the program.

(3) Waive, in writing, his or her right to a jury trial.

(4) Provide a statement written by the offender, admitting his or her participation in, and responsibility for, the offense which is the subject of the application for entry into the pretrial diversion program, which statement shall be admissible in any criminal trial.

(5) Agree, in writing, to the conditions of the pretrial diversion program established by the district attorney.

(6) If there is a victim of the crime, agree in writing to a restitution agreement within a specified period of time and in an amount to be determined by the district attorney.

(7) Agree 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) Pretrial diversion program records or records related to pretrial diversion program admission, with the exception of the statement of the applicant concerning his or her involvement in the crime charged, shall not be admissible in subsequent proceedings, criminal or civil. Communications between pretrial diversion program counselors and offenders shall be privileged unless a court of competent jurisdiction determines there is a compelling public interest to the contrary.

(c) As part of the pretrial diversion program, the district attorney may establish a Restorative Justice Initiative (RJI) program within the 11th Judicial Circuit in Lauderdale County. The guidelines and mechanisms for such an initiative shall be promulgated by the Alabama Office of Prosecution Services. Any additional fees for participation in an RJI program by an offender shall be set by the district attorney and a portion thereof may be paid to any agency or entity that provides services to further the goals and purpose of the RJI program.

Section 7. An offender shall make application to the pretrial diversion program at a time to be determined by the district attorney.

Section 8. (a) An offender may be assessed an application fee when he or she is approved for the program. The amount of the fee for participation in the program shall be in addition to any court costs, assessments for crime victim's compensation fund, Department of Forensic Science assessments, drug, alcohol, or anger management treatments required by law, restitution, costs of supervision, or treatment. 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 determined by the district attorney and may not exceed the following amounts for each case for which the offender makes application for acceptance into the pretrial diversion program:

(1) Felony offenses: Up to nine hundred dollars ($900).

(2) Misdemeanor offenses: Up to seven hundred fifty dollars ($750).

(c) An applicant may not be denied access into the pretrial diversion program based solely on his or her inability to pay. Pretrial diversion program fees as established by this act may be waived or reduced for just cause, including indigency of the applicant, at the discretion of the district attorney. Any determination of indigency of the offender for the purposes of pretrial diversion fee mitigation shall be made by the district attorney. In the event the offender is determined to be indigent, a periodic review of the offender's indigency status may be conducted by the court to determine if the offender is no longer indigent. If the offender is determined to be indigent by the district attorney, nothing in this act shall prohibit the offender from being placed on a payment plan wherein the entire victim restitution, court costs, fines, fees, and pretrial diversion fees are collected in total.

(d) Application fees required by this act shall be collected by the district attorney's office. All pretrial diversion program fees shall be deposited in a timely manner by the district attorney into the District Attorney's Solicitor Fund as described by this act. The district attorney shall make the deposits in a timely manner pursuant to commonly accepted accounting practices. The District Attorney's Solicitor Fund shall be subject to regular audits by the Alabama Department of Examiners of Public Accounts.

Section 9. The district attorney and the offender may enter into an agreement, as a part of the pretrial diversion program, that the offender be admitted to a drug or alcohol program on an in-patient or out-patient basis or receive other treatment alternatives for substance abuse. The district attorney may require the offender to submit to periodic or random drug testing or other terms and conditions related to substance abuse. The offender shall pay the costs of all services unless otherwise approved by the district attorney.

Section 10. (a) In any case in which an offender is admitted into a pretrial diversion program, there shall be a written agreement between the district attorney and the offender. The agreement shall include the terms of the pretrial diversion program, the length of the program, and the period of time after which the district attorney will dispose of the charges against the offender in a noncriminal manner. If, as part of the pretrial diversion program, the offender agrees to plead guilty to a particular charge and receive a specific sentence, an agreement concerning when the plea of guilty will occur, to what charge to which the offender will plead guilty, and any sentence to be imposed, shall be approved by an appropriate circuit or district court judge having jurisdiction over the offender within the judicial circuit prior to admission of the offender in the pretrial diversion program.

(b) As a condition of being admitted into the pretrial diversion program, the district attorney may require the offender to agree to any of the following terms or conditions:

(1) Pay approved restitution to a victim.

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

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

(4) Financially support his or her children or pay child support.

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

(6) Refrain from contact with certain persons or premises.

(7) Maintain or seek employment.

(8) Attend individual, group, or family counseling.

(9) Pay court costs, fees, and fines.

(10) Conduct himself or herself in an honorable manner as a good member of the community, and not endanger in any way the person, property rights, dignity, or morals of others or himself or herself.

(11) Comply with all municipal, county, state, and federal law, ordinances, or orders.

(12) Be absolutely truthful in any oral or written application or reports to the pretrial diversion program.

(13) Pay supervision fees to the agency or entity responsible for monitoring and verifying the offender's compliance with the terms of the pretrial diversion program set forth by the district attorney. These fees shall be paid by the offender to the supervising agency or entity in a timely manner.

(14) Observe curfews, home detention, or travel constraints as set out in the offender's agreement.

(15) Enter into an agreement with the district attorney to have restitution, court costs, fines, fees, or child support withheld or garnished from the wages or salary of the offender.

(16) Complete approved community service.

(17) Agree to the court's jurisdiction beyond the terms of the pretrial diversion program, incarceration, probation, parole, or end of sentence for the purposes of the collection of court ordered or agreed upon fines, fees, cost of court, and restitution pursuant to Section 12-17-225, Code of Alabama 1975.

(18) Agree to the terms and conditions of the pretrial diversion program established by the district attorney.

(19) Provide a statement written by the offender, admitting his or her participation in, and responsibility for, the offense which is the subject of the application for entry into the pretrial diversion program.

(20) Refrain from the possession of or use of any firearm.

(21) Pay the application fee pursuant to this act.

(22) Participate in and complete a drug court program.

(23) Complete a certified drug or alcohol addiction evaluation and treatment program.

(24) Agree to be subject to any other terms or conditions as required by the district attorney set out in the pretrial diversion program agreement. The district attorney shall be given broad discretion in designing a program specifically for each offender and circumstances of the offender.

Section 11. (a) 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 costs associated with the administration of the pretrial diversion program or for any other law enforcement purpose. Costs associated with program administration shall include, but shall not be limited to, salaries, rent, vehicles, uniforms, telephones, postage, office supplies and equipment, training and travel services, service contracts, or professional services. The district attorney may pay for services or programs for an offender while the offender is in the pretrial division program if special circumstances and justice dictate.

Section 12. (a) If the offender violates the conditions of the pretrial diversion program, the district attorney may terminate the participation of the offender in the program. The offender shall be given written notice of the intent of the district attorney to terminate him or her from the pretrial diversion program including the reason for the termination.

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

Section 13. The district attorney or his or her staff shall have no liability, criminal, or civil, for the conduct of any offender while participating in the pretrial diversion program or of any service provider or their agents that are contracted to or who have agreed to provide services to the pretrial diversion program.

Section 14. The pretrial diversion program may apply for grants, may accept gifts from individuals or corporations, and may receive funding or appropriations from city, county, or state agencies or departments to be used in the maintenance or expansion of the pretrial diversion program.

Section 15. The district attorney may form an advisory board within the county or judicial circuit named the Citizens Advisory Board for Pretrial Diversion to assist the district attorney in the determination of appropriate pretrial diversion candidates. The district attorney shall retain the final decision as to the admittance or denial of individuals into the pretrial diversion program. The district attorney shall appoint all members of any advisory board and shall determine when or if it should meet. The advisory board shall serve without personal profit, but may be paid from the District Attorney's Solicitors Fund for actual expenses incurred in connection with its duties.

Section 16. The district attorney, to the extent practicable, may utilize the services of an existing community corrections program established pursuant to Section 15-18-170 of the Code of Alabama 1975, to provide for the supervision of a defendant participating in the pretrial diversion program. The district attorney may utilize the services of an existing drug court program established pursuant to Section 12-23A-4 of the Code of Alabama 1975, so long as the district attorney determines it would serve the best interest of justice and the community.

Section 17. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Lauderdale County

Counties

Pretrial Diversion Programs

District Attorneys

Crimes and Offenses

Criminal Law and Procedure

Counties

Judicial Circuits

Law Enforcement

Courts