HOUSE BILL NO. 335

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H0335aa...................................................by WAYS AND MEANS
SUBSTANCE ABUSE - EVALUATION - Amends existing law relating to sentencing
criteria in drug cases; to provide that substance abuse evaluations may be
waived in certain circumstances.
                                                                        
03/06    House intro - 1st rdg - to printing
03/07    Rpt prt - to Jud
03/19    Rpt out - to Gen Ord
03/24    Rpt out amen - to engros
03/25    Rpt engros - 1st rdg - to 2nd rdg as amen
03/26    2nd rdg - to 3rd rdg as amen
03/27    3rd rdg as amen - PASSED - 67-1-2
      AYES -- Andersen, Barraclough, Barrett, Bauer, Bedke, Bell, Bieter,
      Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins,
      Crow, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth,
      Eskridge, Field(18), Field(23), Gagner, Garrett, Harwood,
      Henbest(Bray), Jaquet, Jones, Kellogg, Lake, Langford, Langhorst,
      Martinez, McGeachin, McKague, Meyer, Miller, Mitchell, Moyle,
      Nacarrato, Nielsen, Raybould, Ridinger, Ring, Ringo, Roberts,
      Robison, Rydalch, Sali, Sayler, Schaefer, Shepherd, Shirley, Skippen,
      Smith(30), Smith(24), Snodgrass, Stevenson, Tilman, Trail, Wills,
      Wood
      NAYS -- Smylie
      Absent and excused -- Kulczyk, Mr. Speaker
    Floor Sponsor - Ring
    Title apvd - to Senate
03/28    Senate intro - 1st rdg - to Jud
04/01    Rpt out - rec d/p - to 2nd rdg
04/02    2nd rdg - to 3rd rdg
04/03    3rd rdg - PASSED - 33-0-2
      AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
      Calabretta, Cameron, Compton, Darrington, Davis, Gannon, Geddes,
      Hill, Ingram, Kennedy, Keough, Little, Lodge, Malepeai, Marley,
      McKenzie, Noble, Noh, Pearce, Richardson, Schroeder, Sorensen,
      Stegner, Stennett, Sweet, Werk, Williams
      NAYS -- None
      Absent and excused -- Goedde, McWilliams
    Floor Sponsor - Lodge
    Title apvd - to House
04/04    To enrol
04/07    Rpt enrol - Sp signed - Pres signed
04/08    To Governor
04/14    Governor signed
         Session Law Chapter 285
         Effective: 07/01/03

Bill Text


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                                     HOUSE BILL NO. 335
                                                                        
                                BY WAYS AND MEANS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO SENTENCING CRITERIA IN DRUG CASES; AMENDING SECTION 37-2738, IDAHO
  3        CODE, TO REVISE PROVISIONS RELATING TO SUBSTANCE ABUSE EVALUATIONS AND  TO
  4        MAKE  TECHNICAL CORRECTIONS; AND AMENDING SECTION 18-1502C, IDAHO CODE, TO
  5        CLARIFY A CODE REFERENCE.
                                                                        
  6    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
  7        SECTION 1.  That Section 37-2738, Idaho Code, be, and the same  is  hereby
  8    amended to read as follows:
                                                                        
  9        37-2738.  SENTENCING  CRITERIA  IN  DRUG  CASES. (1) Any person who pleads
 10    guilty to, is found guilty of or has a judgment of conviction entered  upon  a
 11    violation  of  the  provisions of subsections (a), (b), (c) or (e), of section
 12    37-2732, Idaho Code, shall be sentenced according to the  criteria  set  forth
 13    herein.
 14        (2)  Prior  to  sentencing  for  a  violation enumerated in subsection (1)
 15    above, the defendant shall undergo, at his own expense (or at  county  expense
 16    through the procedures set forth in chapters 34 and 35, title 31, Idaho Code),
 17    a substance abuse evaluation at a facility approved by the Idaho department of
 18    health  and  welfare.  Provided however, that if the defendant has no prior or
 19    pending charges under the provisions of subsection (a), (b), (c)  or  (e),  of
 20    section 37-2732, Idaho Code, and the court does not have any reason to believe
 21    that  the  defendant  regularly  abuses drugs and is in need of treatment, the
 22    court may, in its discretion, waive the evaluation with respect to  sentencing
 23    for  a  violation of subsection (b) or (e) of section 37-2732, Idaho Code, and
 24    proceed to sentence the defendant. The court  may  also,  in  its  discretion,
 25    waive  the  requirement  of  a  substance  abuse  evaluation with respect to a
 26    defendant's violation of the provisions of subsection (a), (b), (c) or (e), of
 27    section 37-2732, Idaho Code, and proceed to  sentence  the  defendant  if  the
 28    court  has  a  presentence  investigation  report, substance abuse assessment,
 29    criminogenic risk assessment, or similar assessment tool which  has  evaluated
 30    the  defendant's  need  for  substance abuse treatment conducted within twelve
 31    (12) months preceding the date of the defendant's sentencing.
 32        (3)  In the event the a substance abuse evaluation indicates the need  for
 33    substance  abuse  treatment,  the  evaluation  shall  recommend an appropriate
 34    treatment program, together with the estimated costs thereof, and  recommenda-
 35    tions  for  other  suitable  alternative treatment programs, together with the
 36    estimated costs thereof. The person shall request that a copy of the completed
 37    evaluation be forwarded to the court. The court shall take the evaluation into
 38    consideration to determine an appropriate sentence. If a copy of the completed
 39    evaluation has not been provided to the court, the court may proceed  to  sen-
 40    tence  the  defendant;  however,  in such event it shall be presumed that sub-
 41    stance abuse treatment is needed unless it is shown by a preponderance of evi-
 42    dence that treatment is not required. If the defendant has  not  made  a  good
 43    faith effort to provide the completed copy of the evaluation to the court, the
                                                                        
                                           2
                                                                        
  1    court may consider the failure of the defendant to provide or report an aggra-
  2    vating  circumstance  in  determining an appropriate sentence. If treatment is
  3    ordered, the person or facility performing the evaluation  shall  not  be  the
  4    person  or  facility  that  provides the treatment, unless this requirement is
  5    waived by the sentencing court, and with the exception of federally recognized
  6    Indian tribes or federal military installations where diagnoses and  treatment
  7    are appropriate and available. Nothing herein contained shall preclude the use
  8    of  funds authorized pursuant to the provisions of chapter  3, title 39, Idaho
  9    Code, for court ordered substance abuse treatment for indigent defendants.
 10        (34)  When sentencing an individual for the crimes enumerated  in  section
 11    (1)  of  this section, the court shall not enter a withheld judgment unless it
 12    finds by a preponderence preponderance of the evidence that:
 13        (a)  The defendant has no prior finding  of  guilt  for  any  felony,  any
 14        violation  of  chapter  80, title 18, Idaho Code, or subsections (a), (b),
 15        (c) or (e), of section 37-2732, Idaho Code, whatsoever; and
 16        (b)  The sentencing court has an abiding  conviction  that  the  defendant
 17        will successfully complete the terms of probation; and
 18        (c)  The  defendant  has  satisfactorily  cooperated  with law enforcement
 19        authorities in the prosecution of drug related crimes of which the defend-
 20        ant has previously had involvement.
 21        (45)  Any person who pleads guilty to or is found guilty of a violation of
 22    the provisions of the Idaho Code identified in subsection (1) of this  section
 23    shall,  when granted a probationary period of any sort whatsoever, be required
 24    by the court to complete a period of not less than one hundred (100) hours  of
 25    community service work.
                                                                        
 26        SECTION  2.  That Section 18-1502C, Idaho Code, be, and the same is hereby
 27    amended to read as follows:
                                                                        
 28        18-1502C.  POSSESSION OF MARIJUANA OR DRUG PARAPHERNALIA BY A MINOR -- USE
 29    OF CONTROLLED SUBSTANCES -- FINES. (1) Any person under eighteen (18) years of
 30    age who shall have in his possession  any  marijuana  as  defined  in  section
 31    37-2701(s),  Idaho  Code, which would constitute a misdemeanor for an adult so
 32    charged, or who shall have in his possession any drug paraphernalia as defined
 33    in section 37-2701(n), Idaho Code, or who shall unlawfully use or be under the
 34    influence of controlled substances in violation of the provisions  of  section
 35    37-2732C,  Idaho  Code, shall be guilty of a misdemeanor, and upon conviction,
 36    may be punished by a fine not in excess of one thousand dollars ($1,000) or by
 37    ninety (90) days in a juvenile detention facility or by both or may be subject
 38    to the provisions of chapter 5, title 20, Idaho Code. If the juvenile is adju-
 39    dicated under the provisions of chapter 5, title 20, Idaho Code, for a  viola-
 40    tion  of  this section he shall be sentenced in accordance with the provisions
 41    of chapter 5, title 20, Idaho Code. The juvenile shall  be  adjudicated  under
 42    chapter  5,  title  20, Idaho Code, for a violation of section 37-2732C, Idaho
 43    Code, unless the court finds that adjudication  under  chapter  5,  title  20,
 44    Idaho Code, is not appropriate in the circumstances.
 45        (2)  A conviction under this section shall not be used as a factor or con-
 46    sidered  in  any manner for the purpose of establishing rates of motor vehicle
 47    insurance charged by a casualty insurer, nor shall such conviction be  grounds
 48    for  nonrenewal  of any insurance policy as provided in section 41-2507, Idaho
 49    Code.
 50        (3)  Any person who pleads guilty or is found guilty of possession of mar-
 51    ijuana pursuant to this section, or any person under eighteen  (18)  years  of
 52    age  who  pleads guilty or is found guilty of a violation of section 37-2732C,
 53    Idaho Code, then in addition to the penalty provided in subsection (1) of this
                                                                        
                                           3
                                                                        
  1    section:
  2        (a)  The court shall suspend the person's driving privileges for a  period
  3        of  not  more than one (1) year. The person may request restricted driving
  4        privileges during the period of suspension, which the court may allow,  if
  5        the  person  shows  by a preponderance of the evidence that driving privi-
  6        leges are necessary as deemed appropriate by the court.
  7        (b)  If the person's driving privileges  have  been  previously  suspended
  8        under  this  section,  the court shall suspend the person's driving privi-
  9        leges for a period of not more than two (2) years. The person may  request
 10        restricted  driving  privileges during the period of suspension, which the
 11        court may allow, if the person shows by a preponderance  of  the  evidence
 12        that driving privileges are necessary as deemed appropriate by the court.
 13        (c)  The person shall surrender his license or permit to the court.
 14        (d)  The court shall notify the motor vehicle division of the Idaho trans-
 15        portation  department  of  all  orders of suspension it issues pursuant to
 16        this section.
 17        (4)  The court, in its discretion, may also order the person convicted  of
 18    possession  of  marijuana  under  subsection  (1) of this section, or a person
 19    under eighteen (18) years of age who has been  convicted  of  using  or  being
 20    under  the  influence  of  a  controlled  substance  in  violation  of section
 21    37-2732C, Idaho Code, to undergo and complete a substance abuse evaluation and
 22    to complete a drug treatment program, as provided in section 37-2738(2), Idaho
 23    Code.

Amendment


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                                                     Moved by    Ring                
                                                                        
                                                     Seconded by Ridinger            
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                              HOUSE AMENDMENT TO H.B. NO. 335
                                                                        
  1                                AMENDMENT TO SECTION 1
  2        On page 1 of the printed bill, in line 29, delete "tool".

Engrossed Bill (Original Bill with Amendment(s) Incorporated)


                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-seventh Legislature                 First Regular Session - 2003
                                                                        
                                                                        
                              IN THE HOUSE OF REPRESENTATIVES
                                                                        
                               HOUSE BILL NO. 335, As Amended
                                                                        
                                BY WAYS AND MEANS COMMITTEE
                                                                        
  1                                        AN ACT
  2    RELATING TO SENTENCING CRITERIA IN DRUG CASES; AMENDING SECTION 37-2738, IDAHO
  3        CODE, TO REVISE PROVISIONS RELATING TO SUBSTANCE ABUSE EVALUATIONS AND  TO
  4        MAKE  TECHNICAL CORRECTIONS; AND AMENDING SECTION 18-1502C, IDAHO CODE, TO
  5        CLARIFY A CODE REFERENCE.
                                                                        
  6    Be It Enacted by the Legislature of the State of Idaho:
                                                                        
  7        SECTION 1.  That Section 37-2738, Idaho Code, be, and the same  is  hereby
  8    amended to read as follows:
                                                                        
  9        37-2738.  SENTENCING  CRITERIA  IN  DRUG  CASES. (1) Any person who pleads
 10    guilty to, is found guilty of or has a judgment of conviction entered  upon  a
 11    violation  of  the  provisions of subsections (a), (b), (c) or (e), of section
 12    37-2732, Idaho Code, shall be sentenced according to the  criteria  set  forth
 13    herein.
 14        (2)  Prior  to  sentencing  for  a  violation enumerated in subsection (1)
 15    above, the defendant shall undergo, at his own expense (or at  county  expense
 16    through the procedures set forth in chapters 34 and 35, title 31, Idaho Code),
 17    a substance abuse evaluation at a facility approved by the Idaho department of
 18    health  and  welfare.  Provided however, that if the defendant has no prior or
 19    pending charges under the provisions of subsection (a), (b), (c)  or  (e),  of
 20    section 37-2732, Idaho Code, and the court does not have any reason to believe
 21    that  the  defendant  regularly  abuses drugs and is in need of treatment, the
 22    court may, in its discretion, waive the evaluation with respect to  sentencing
 23    for  a  violation of subsection (b) or (e) of section 37-2732, Idaho Code, and
 24    proceed to sentence the defendant. The court  may  also,  in  its  discretion,
 25    waive  the  requirement  of  a  substance  abuse  evaluation with respect to a
 26    defendant's violation of the provisions of subsection (a), (b), (c) or (e), of
 27    section 37-2732, Idaho Code, and proceed to  sentence  the  defendant  if  the
 28    court  has  a  presentence  investigation  report, substance abuse assessment,
 29    criminogenic risk assessment, or similar assessment which  has  evaluated  the
 30    defendant's  need  for  substance abuse treatment conducted within twelve (12)
 31    months preceding the date of the defendant's sentencing.
 32        (3)  In the event the a substance abuse evaluation indicates the need  for
 33    substance  abuse  treatment,  the  evaluation  shall  recommend an appropriate
 34    treatment program, together with the estimated costs thereof, and  recommenda-
 35    tions  for  other  suitable  alternative treatment programs, together with the
 36    estimated costs thereof. The person shall request that a copy of the completed
 37    evaluation be forwarded to the court. The court shall take the evaluation into
 38    consideration to determine an appropriate sentence. If a copy of the completed
 39    evaluation has not been provided to the court, the court may proceed  to  sen-
 40    tence  the  defendant;  however,  in such event it shall be presumed that sub-
 41    stance abuse treatment is needed unless it is shown by a preponderance of evi-
 42    dence that treatment is not required. If the defendant has  not  made  a  good
 43    faith effort to provide the completed copy of the evaluation to the court, the
                                                                        
                                           2
                                                                        
  1    court may consider the failure of the defendant to provide or report an aggra-
  2    vating  circumstance  in  determining an appropriate sentence. If treatment is
  3    ordered, the person or facility performing the evaluation  shall  not  be  the
  4    person  or  facility  that  provides the treatment, unless this requirement is
  5    waived by the sentencing court, and with the exception of federally recognized
  6    Indian tribes or federal military installations where diagnoses and  treatment
  7    are appropriate and available. Nothing herein contained shall preclude the use
  8    of  funds authorized pursuant to the provisions of chapter  3, title 39, Idaho
  9    Code, for court ordered substance abuse treatment for indigent defendants.
 10        (34)  When sentencing an individual for the crimes enumerated  in  section
 11    (1)  of  this section, the court shall not enter a withheld judgment unless it
 12    finds by a preponderence preponderance of the evidence that:
 13        (a)  The defendant has no prior finding  of  guilt  for  any  felony,  any
 14        violation  of  chapter  80, title 18, Idaho Code, or subsections (a), (b),
 15        (c) or (e), of section 37-2732, Idaho Code, whatsoever; and
 16        (b)  The sentencing court has an abiding  conviction  that  the  defendant
 17        will successfully complete the terms of probation; and
 18        (c)  The  defendant  has  satisfactorily  cooperated  with law enforcement
 19        authorities in the prosecution of drug related crimes of which the defend-
 20        ant has previously had involvement.
 21        (45)  Any person who pleads guilty to or is found guilty of a violation of
 22    the provisions of the Idaho Code identified in subsection (1) of this  section
 23    shall,  when granted a probationary period of any sort whatsoever, be required
 24    by the court to complete a period of not less than one hundred (100) hours  of
 25    community service work.
                                                                        
 26        SECTION  2.  That Section 18-1502C, Idaho Code, be, and the same is hereby
 27    amended to read as follows:
                                                                        
 28        18-1502C.  POSSESSION OF MARIJUANA OR DRUG PARAPHERNALIA BY A MINOR -- USE
 29    OF CONTROLLED SUBSTANCES -- FINES. (1) Any person under eighteen (18) years of
 30    age who shall have in his possession  any  marijuana  as  defined  in  section
 31    37-2701(s),  Idaho  Code, which would constitute a misdemeanor for an adult so
 32    charged, or who shall have in his possession any drug paraphernalia as defined
 33    in section 37-2701(n), Idaho Code, or who shall unlawfully use or be under the
 34    influence of controlled substances in violation of the provisions  of  section
 35    37-2732C,  Idaho  Code, shall be guilty of a misdemeanor, and upon conviction,
 36    may be punished by a fine not in excess of one thousand dollars ($1,000) or by
 37    ninety (90) days in a juvenile detention facility or by both or may be subject
 38    to the provisions of chapter 5, title 20, Idaho Code. If the juvenile is adju-
 39    dicated under the provisions of chapter 5, title 20, Idaho Code, for a  viola-
 40    tion  of  this section he shall be sentenced in accordance with the provisions
 41    of chapter 5, title 20, Idaho Code. The juvenile shall  be  adjudicated  under
 42    chapter  5,  title  20, Idaho Code, for a violation of section 37-2732C, Idaho
 43    Code, unless the court finds that adjudication  under  chapter  5,  title  20,
 44    Idaho Code, is not appropriate in the circumstances.
 45        (2)  A conviction under this section shall not be used as a factor or con-
 46    sidered  in  any manner for the purpose of establishing rates of motor vehicle
 47    insurance charged by a casualty insurer, nor shall such conviction be  grounds
 48    for  nonrenewal  of any insurance policy as provided in section 41-2507, Idaho
 49    Code.
 50        (3)  Any person who pleads guilty or is found guilty of possession of mar-
 51    ijuana pursuant to this section, or any person under eighteen  (18)  years  of
 52    age  who  pleads guilty or is found guilty of a violation of section 37-2732C,
 53    Idaho Code, then in addition to the penalty provided in subsection (1) of this
                                                                        
                                           3
                                                                        
  1    section:
  2        (a)  The court shall suspend the person's driving privileges for a  period
  3        of  not  more than one (1) year. The person may request restricted driving
  4        privileges during the period of suspension, which the court may allow,  if
  5        the  person  shows  by a preponderance of the evidence that driving privi-
  6        leges are necessary as deemed appropriate by the court.
  7        (b)  If the person's driving privileges  have  been  previously  suspended
  8        under  this  section,  the court shall suspend the person's driving privi-
  9        leges for a period of not more than two (2) years. The person may  request
 10        restricted  driving  privileges during the period of suspension, which the
 11        court may allow, if the person shows by a preponderance  of  the  evidence
 12        that driving privileges are necessary as deemed appropriate by the court.
 13        (c)  The person shall surrender his license or permit to the court.
 14        (d)  The court shall notify the motor vehicle division of the Idaho trans-
 15        portation  department  of  all  orders of suspension it issues pursuant to
 16        this section.
 17        (4)  The court, in its discretion, may also order the person convicted  of
 18    possession  of  marijuana  under  subsection  (1) of this section, or a person
 19    under eighteen (18) years of age who has been  convicted  of  using  or  being
 20    under  the  influence  of  a  controlled  substance  in  violation  of section
 21    37-2732C, Idaho Code, to undergo and complete a substance abuse evaluation and
 22    to complete a drug treatment program, as provided in section 37-2738(2), Idaho
 23    Code.

Statement of Purpose / Fiscal Impact



                       STATEMENT OF PURPOSE
                             RS 13105
Prior to the sentencing for certain drug crimes, Section 37-2738,
Idaho Code, provides for a substance abuse evaluation of the
defendant for the assistance of the sentencing judge in
determining whether substance abuse treatment should be ordered
as part of the sentence.

Presently, an evaluation must be obtained in every case for the
purpose of deciding whether treatment of the defendant is
indicated.  As a matter of judicial economy, judges who handle
these cases believe that in an appropriate case these evaluations
are unnecessary and may be dispensed with if the sentencing judge
has sufficient information to make an informed decision
concerning whether or not a rehabilitative treatment program
should be ordered.  For example, a criminogenic risk needs
assessment is already required before entry into drug courts and
the judge has a comprehensive pre-sentence investigation report
in felony alcohol and drug cases.  Often, the defendant's past
record of drug offenses will be dispositive concerning an
appropriate sentence.

The amendment to Section 37-2738, Idaho Code, made by the bill
provides that with respect to certain drug offenses committed by
first-time offenders of the drug laws, the court may waive the
evaluation if there is no information before the court which
suggests that the defendant regularly abuses drugs or is in need
of treatment.  The judge may also waive an evaluation if the
defendant has within 12 months of sentencing been evaluated for
this purpose.
                          FISCAL IMPACT

This bill will not add to the cost of state or local funds and is
anticipated to have a positive impact on county funds that would
otherwise by used to pay for unnecessary evaluations of indigent
defendants.


Contact

Name:     Rep. Robert Ring
Phone:    (208) 332-1000




STATEMENT OF PURPOSE/FISCAL NOTE       H 335