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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 - 2004
IN 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)
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
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