2004 Legislation
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SENATE BILL NO. 1208 – Sentencing, nonnarcotic misdemeanor


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Bill Status

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
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,
      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.
    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

Bill Text

  ]]]]              LEGISLATURE OF THE STATE OF IDAHO             ]]]]
 Fifty-seventh Legislature                 Second Regular Session - 2004
                                       IN THE SENATE
                                    SENATE BILL NO. 1208
                              BY JUDICIARY AND RULES COMMITTEE
  1                                        AN ACT
  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)
 16    above  of 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, that if 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
  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 / Fiscal Impact

                       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