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S1208................................................by JUDICIARY AND RULES SENTENCING - Amends existing law relating to sentencing criteria in drug cases to provide that certain first-time offense nonnarcotic misdemeanors qualify for a discretionary waiver of the substance abuse evaluation requirement. 01/15 Senate intro - 1st rdg - to printing 01/16 Rpt prt - to Jud 02/03 Rpt out - rec d/p - to 2nd rdg 02/04 2nd rdg - to 3rd rdg 02/05 3rd rdg - PASSED - 35-0-0 AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw, Calabretta, Cameron, Compton, Darrington, Davis, Gannon, Geddes, Goedde, Hill, Ingram, Kennedy, Keough, Little, Lodge, Malepeai, Marley, McKenzie, McWilliams, Noble, Noh, Pearce, Richardson, Schroeder, Sorensen(Sorensen), Stegner, Stennett, Sweet, Werk, Williams NAYS -- None Absent and excused -- None Floor Sponsor - Sweet Title apvd - to House 02/06 House intro - 1st rdg - to Jud 02/24 Rpt out - rec d/p - to 2nd rdg 02/25 2nd rdg - to 3rd rdg 02/27 3rd rdg - PASSED - 64-0-6 AYES -- Andersen, Barraclough, Barrett, Bauer, Bayer, Bedke, Bell, Black, Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth, Eskridge, Field(18), Field(23), Gagner, Garrett, Harwood, Henbest, Jaquet, Kellogg, Kulczyk, Lake, Langford, Langhorst, Martinez, McGeachin, McKague, Meyer, Miller, Moyle, Naccarato, Nielsen, Pasley-Stuart, Raybould, Ridinger, Ring, Ringo, Roberts, Robison, Rydalch, Sayler, Shepherd, Shirley, Skippen, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Trail, Wills, Wood NAYS -- None Absent and excused -- Crow, Jones, Mitchell, Sali, Schaefer, Mr. Speaker Floor Sponsor - Ellsworth Title apvd - to Senate 03/01 To enrol 03/02 Rpt enrol - Pres signed 03/03 Sp signed 03/04 To Governor 03/05 Governor signed Session Law Chapter 22 Effective: 07/01/04
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004IN THE SENATE SENATE BILL NO. 1208 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO SENTENCING CRITERIA IN DRUG CASES; AMENDING SECTION 37-2738, IDAHO 3 CODE, TO PROVIDE THAT CERTAIN FIRST-TIME OFFENSE NONNARCOTIC MISDEMEANORS 4 QUALIFY FOR A DISCRETIONARY WAIVER OF THE SUBSTANCE ABUSE EVALUATION 5 REQUIREMENT, TO MAKE A GRAMMATICAL CHANGE AND TO MAKE TECHNICAL CORREC- 6 TIONS. 7 Be It Enacted by the Legislature of the State of Idaho: 8 SECTION 1. That Section 37-2738, Idaho Code, be, and the same is hereby 9 amended to read as follows: 10 37-2738. SENTENCING CRITERIA IN DRUG CASES. (1) Any person who pleads 11 guilty to, is found guilty of or has a judgment of conviction entered upon a 12 violation of the provisions of subsection (a), (b), (c) or (e),of section 13 37-2732, Idaho Code, shall be sentenced according to the criteria set forth 14 herein. 15 (2) Prior to sentencing for a violation enumerated in subsection (1) 16aboveof this section, the defendant shall undergo, at his own expense (or at 17 county expense through the procedures set forth in chapters 34 and 35, title 18 31, Idaho Code), a substance abuse evaluation at a facility approved by the 19 Idaho department of health and welfare. Provided however,thatif the defend- 20 ant has no prior or pending charges under the provisions of subsection (a), 21 (b), (c) or (e),of section 37-2732, Idaho Code, and the court does not have 22 any reason to believe that the defendant regularly abuses drugs and is in need 23 of treatment, the court may, in its discretion, waive the evaluation with 24 respect to sentencing for a violation of subsection (b), (c)(3), or (e) of 25 section 37-2732, Idaho Code, and proceed to sentence the defendant. The court 26 may also, in its discretion, waive the requirement of a substance abuse evalu- 27 ation with respect to a defendant's violation of the provisions of subsection 28 (a), (b), (c) or (e),of section 37-2732, Idaho Code, and proceed to sentence 29 the defendant if the court has a presentence investigation report, substance 30 abuse assessment, criminogenic risk assessment, or similar assessment which 31 has evaluated the defendant's need for substance abuse treatment conducted 32 within twelve (12) months preceding the date of the defendant's sentencing. 33 (3) In the event a substance abuse evaluation indicates the need for sub- 34 stance abuse treatment, the evaluation shall recommend an appropriate treat- 35 ment program, together with the estimated costs thereof, and recommendations 36 for other suitable alternative treatment programs, together with the estimated 37 costs thereof. The person shall request that a copy of the completed evalua- 38 tion be forwarded to the court. The court shall take the evaluation into con- 39 sideration to determine an appropriate sentence. If a copy of the completed 40 evaluation has not been provided to the court, the court may proceed to sen- 41 tence the defendant; however, in such event it shall be presumed that sub- 42 stance abuse treatment is needed unless it is shown by a preponderance of evi- 43 dence that treatment is not required. If the defendant has not made a good 2 1 faith effort to provide the completed copy of the evaluation to the court, the 2 court may consider the failure of the defendant to provide or report an aggra- 3 vating circumstance in determining an appropriate sentence. If treatment is 4 ordered, the person or facility performing the evaluation shall not be the 5 person or facility that provides the treatment, unless this requirement is 6 waived by the sentencing court, and with the exception of federally recognized 7 Indian tribes or federal military installations where diagnoses and treatment 8 are appropriate and available. Nothing herein contained shall preclude the use 9 of funds authorized pursuant to the provisions of chapter 3, title 39, Idaho 10 Code, for court ordered substance abuse treatment for indigent defendants. 11 (4) When sentencing an individual for the crimes enumerated in section 12 (1) of this section, the court shall not enter a withheld judgment unless it 13 finds by a preponderance of the evidence that: 14 (a) The defendant has no prior finding of guilt for any felony, any 15 violation of chapter 80, title 18, Idaho Code, or subsection (a), (b), (c) 16 or (e),of section 37-2732, Idaho Code, whatsoever; and 17 (b) The sentencing court has an abiding conviction that the defendant 18 will successfully complete the terms of probation; and 19 (c) The defendant has satisfactorily cooperated with law enforcement 20 authorities in the prosecution of drug related crimes of which the defend- 21 ant has previously had involvement. 22 (5) Any person who pleads guilty to or is found guilty of a violation of 23 the provisions of the Idaho Code identified in subsection (1) of this section 24 shall, when granted a probationary period of any sort whatsoever, be required 25 by the court to complete a period of not less than one hundred (100) hours of 26 community service work.
STATEMENT OF PURPOSE RS 13559 This bill amends Section 37-2738, Idaho Code, which authorizes the waiver of substance abuse evaluations with respect to certain first-time drug offenses, to add the non-narcotic misdemeanors described in 37-2732(c)(3) as first-time offenses which qualify for a waiver. In the 2003 Legislative Session, House Bill 335 amended Section 37-2738, Idaho Code, (which formerly required a substance abuse evaluation for all drug offenses) to permit the judge to waive an evaluation in an appropriate case, including certain first-time drug offenses identified in the bill. However, because of an oversight, the non-narcotic misdemeanors defined in I.C. 37-2732(c)(3) were not included in the list of first-time offenses which qualify for a discretionary waiver, although certain felony drug violations, including marijuana, were listed. The result is that the court lacks the authority to waive an evaluation for a first-time misdemeanor marijuana violation, which might be an appropriate candidate under the first-time offender exception, while it has the discretion to do so for felony marijuana possession. This proposed amendment will address this omission. FISCAL NOTE This bill will not adversely impact state or local funds and is anticipated to have a positive impact on local funds by eliminating costs associated with unnecessary evaluations that otherwise would be borne by county governments. Contact Person: Patricia Tobias Administrative Director of the Courts (208) 334-2246 Statement of Purpose/Fiscal Note S 1208