SB 62 — Requiring participation in drug court program before discharge of certain first-time drug offenses

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Red = new code to be enacted WEST virginia legislature regular session IntroducedCommittee Substitute for Senate Bill 62 By Senators Weld and ClementsClements, [Introducedoriginal Januarysponsors 9,[Originating 2019;in the Committee on the Judiciary;

ReferredReported toon theJanuary Committee17, on2019] the  Judiciary]        A BILL to amend and reenact §60A-4-407 of the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §60A-4-407a, relating to requiringauthorizing a court to require participation inand successful completion of a drug court program,program underor certaindrug circumstances,treatment beforeprogram in order for a conditionaldefendant, dischargepleading foror firstbeing offensefound guilty of possession of a controlled substance maywhich beis granted.or contains a controlled substance listed in §60A-2-204 of this code, other than marijuana, or a controlled substance listed in §60A-2-206, §60A-2-208, or §60A-2-210 of this code containing an opioid or opiate, to qualify for a final order of discharge and dismissal.

§60A-4-407.§60A-4-407a.  Allowing additional requirements to obtain a final order of discharge and dismissal for persons pleading to, or being convicted of, possession of opiates or opioids.

Conditional(a) dischargeNotwithstanding any provision of this code to the contrary, when a person pleads guilty or is found guilty of a violation of §60A-4-401(c) of this code, or a municipal ordinance containing the same elements where the controlled substance possessed is listed in §60A-2-204 of this code, other than marijuana, or is a controlled substance listed in §60A-2-206, §60A-2-208, or §60A-2-210 of this code which contains an opiate or opioid as defined in this chapter, the court may, as an additional condition for firstthe offenseentry of possession.a final order of discharge or dismissal under §60A-4-407 of this code or a municipal ordinance containing the same or substantially the same provision, require the defendant to:

(a)(1) WheneverBe anyevaluated personfor whoadmission hasinto nota previouslydrug beencourt convictedprogram ofif anysuch offenseis underavailable thisin chapter or under any statute of the Unitedcounty States or ofmunicipality anyin statewhich relating to narcotic drugs, marihuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a controlled substance under §60A-4-401(c) of this code, the court,defendant withoutresides; entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him or her on probation upon terms and conditions.

Uponor violation(2) ofBe required to participate in a termdrug ortreatment condition,program theif courtsuch mayis enteravailable anin adjudicationthe ofcounty guiltor andmunicipality proceedin aswhich otherwisethe provided.defendant resides.

Upon(b) fulfillmentShould ofa thedefendant termsbe anddetermined conditions,to thebe an appropriate candidate for admission to drug court shallor dischargea drug treatment program, the personcourt andmay dismissmake thesuccessful proceedingscompletion againstof himdrug court or her.drug treatment a requirement for obtaining a final order of discharge and dismissal.

Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under §60A-4-408 of this code.

The effect of the dismissal and discharge shall be to restore the person in contemplation of law to the status he or she occupied prior to arrest and trial.

No person as to whom a dismissal and discharge have been effected shall be thereafter held to be guilty of perjury, false swearing, or otherwise giving a false statement by reason of his or her failure to disclose or acknowledge his or her arrest or trial in response to any inquiry made of him or her for any purpose.

There may be only one discharge and dismissal under this section with respect to any person.

(b) A final discharge and dismissal under this section, however, may not take place until the defendant has been assessed for eligibility for the drug court treatment program under §62-15-1 et seq.

of this code.  If the defendant is found to be an acceptable candidate and is accepted into the drug court program, then his or her full compliance with the terms set forth by the drug court program is required for a final discharge and dismissal under this section.  Should the defendant not fully comply with the terms of the drug court program, then the court may enter an adjudication of guilt and proceed as otherwise provided.

(b) (c) After a period of not less than six months which shall begin to run immediately upon the expiration of a term of probation imposed upon any person under this chapter, the person may apply to the court for an order to expunge from all official records all recordations of his or her arrest, trial, and conviction, pursuant to this section.

If the court determines after a hearing that the person during the period of his or her probation and during the period of time prior to his or her application to the court under this section has not been guilty of any serious or repeated violation of the conditions of his or her probation, it shall order the expungement.

(c) (d) (1) Notwithstanding any provision of this code to the contrary, any person prosecuted pursuant to the provisions of this article whose case is disposed of pursuant to the provisions of this section shall be is liable for any court costs assessable against a person convicted of a violation of §60A-4-401(c) of this code.

Payment of such costs may be made a condition of probation.

(2) The costs assessed pursuant to this section, whether as a term of probation or not, shall be distributed as other court costs in accordance with §50-3-2, §14-2A-4, §30-29-4, §62-5-2, §62-5-7, §62-5-10 of this code.

  NOTE:

The purpose of this bill is to require participation in a drug court program, under certain circumstances, before a conditional discharge for first offense of possession of a controlled substance may be granted.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.