Revision: Jan. 3, 2012, midnight
HB 1665-FN – AS INTRODUCED
2012 SESSION
09/04
HOUSE BILL 1665-FN
AN ACT adopting the model drug offender accountability and treatment act.
SPONSORS: Rep. Harding, Graf 11; Rep. Shurtleff, Merr 10; Rep. Tholl, Coos 2; Rep. Welch, Rock 8; Rep. Pantelakos, Rock 16; Rep. Rosenwald, Hills 22; Rep. Swinford, Belk 5; Sen. Houde, Dist 5; Sen. Odell, Dist 8; Sen. Larsen, Dist 15; Sen. Kelly, Dist 10
This bill adopts the model drug offender accountability and treatment act.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears (in brackets and struckthrough.)
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12-2749
09/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT adopting the model drug offender accountability and treatment act.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Drug Offender Accountability and Treatment Act. Amend RSA by inserting after chapter 490-F the following new chapter:
CHAPTER 490-G
DRUG OFFENDER ACCOUNTABILITY AND TREATMENT ACT
490-G:1 Short title. This chapter shall be known and may be cited as the “model drug offender accountability and treatment act.”
490-G:2 Definitions. For the purposes of this chapter:
I. “Assessment” means a diagnostic evaluation to determine whether and to what extent a person is a drug offender under this chapter and would benefit from its provisions. The assessment shall be conducted in accordance with the standards, procedures, and diagnostic criteria designed to provide effective and cost-beneficial use of available resources.
II. “Continuum of care” means a seamless and coordinated course of substance abuse education and treatment designed to meet the needs of drug offenders as they move through the criminal justice system and beyond, maximizing self-sufficiency.
III. “Drug” includes the following:
(a) A “controlled substance” – a drug or other substance for which a medical prescription or other legal authorization is required for purchase or possession;
(b) An “illegal drug” – a drug whose manufacture, sale, use, or possession is forbidden by law; or
(c) “Other harmful substance” – a misused substance otherwise legal to possess, including alcohol.
IV. “Drug court” means a judicial intervention process that incorporates the Ten Key Components listed in paragraph XVII and may include:
(a) “Pre-adjudication” where a drug offender is ordered to participate in drug court before charges are filed or before conviction;
(b) “Post-adjudication” where a drug offender is ordered to participate in drug court after entering a plea of guilty or nolo contendre or having been found guilty;
(c) “Reentry” where a drug offender is ordered to participate in drug court upon release from a sentence of incarceration; or
(d) “Combination program” which may include pre-adjudication, post-adjudication, and/or reentry.
V. “Drug court coordinator” means an individual who is responsible for coordinating the establishment, staffing, operation, evaluation, and the integrity of the drug court.
VI. “Drug court team” consists of the following members who are assigned to the drug court:
(a) The judge;
(b) The prosecutor;
(c) The public defender or member of the criminal defense bar;
(d) A law enforcement officer;
(e) The drug court coordinator;
(f) A representative from the department of probation or parole;
(g) Substance abuse provider or providers; and
(h) Any other persons selected by the drug court team.
VII. “Drug offender” means a person charged with a drug-related offense or an offense in which substance abuse is determined from the evidence to have been a significant factor in the commission of the offense.
VIII. “Dual diagnosis” means a substance abuse and co-occurring mental health disorder.
IX. “Local advisory committee” may consist of the following members or their designees:
(a) Chief judge, who shall serve as chair;
(b) Drug court judge;
(c) Prosecutor;
(d) Public defender;
(e) Drug court coordinator;
(f) Criminal defense bar;
(g) Clerk;
(h) Corrections;
(i) Pretrial services;
(j) Probation and/or parole;
(k) Law enforcement;
(l) Substance abuse treatment provider or providers; and
(m) Such other person or persons as the chair deems appropriate.
X. “Memorandum of understanding” means a written document setting forth an agreed upon procedure.
XI. “Recidivism” means any arrest for a serious offense (carrying a sentence of at least one year) resulting in the filing of a charge.
XII. “Relapse” means a return to substance use after a period of abstinence.
XIII. “Staffing” means the meeting before a drug offender’s appearance in drug court in which the drug court team discusses a coordinated response to the drug offender’s behavior or behaviors.
XIV. “Substance” means drug.
XV. “Substance abuse” means the illegal or improper consumption of a drug.
XVI. “Substance abuse treatment” means a program designed to provide prevention, education, and therapy directed toward ending substance abuse and preventing a return to substance usage.
XVII. “Ten Key Components” as defined by the United States Department of Justice, are:
(a) Drug courts integrate alcohol and other drug treatment services with justice system case processing;
(b) Using a nonadversarial approach, prosecution and defense counsel promote public safety while protecting participants’ (drug offenders’) due process rights;
(c) Eligible participants (drug offenders) are identified early and promptly placed in the drug court program;
(d) Drug courts provide access to a continuum of alcohol, drug, and other related treatment and rehabilitation services;
(e) Abstinence is monitored by frequent alcohol and other drug testing;
(f) A coordinated strategy governs drug court responses to participants’ (drug offenders’) compliance;
(g) Ongoing judicial interaction with each drug court participant (drug offender) is essential;
(h) Monitoring and evaluation measure the achievement of program (drug court) goals and gauge effectiveness;
(i) Continuing interdisciplinary education promotes effective drug court planning, implementation, and operations; and
(j) Forging partnerships among drug courts, public agencies, and community-based organizations generates local support and enhances drug court effectiveness.
490-G:3 Policy and Goals.
I. The legislature recognizes that a critical need exists in this state for the criminal justice system to reduce the incidence of substance abuse and the crimes resulting from it. For the criminal justice system to maintain credibility, all drug offenders must be held accountable for their actions. A growing body of research demonstrates the impact of substance abuse on public safety, personal health and health care costs, the spread of communicable disease, educational performance and attainment, work force reliability and productivity, family safety, and financial stability. Requiring that accountability and rehabilitating treatment, in addition to or in place of, conventional and expensive incarceration, will promote public safety, the welfare of the individuals involved, reduce the burden upon the public treasury and benefit the common welfare of this state. The goals of this chapter shall include:
(a) To enhance community safety and quality of life for citizens;
(b) To reduce recidivism;
(c) To reduce substance abuse;
(d) To increase the personal, familial, and societal accountability of drug offenders;
(e) To restore drug offenders to productive, law-abiding, and taxpaying citizens;
(f) To promote effective interaction and use of resources among criminal justice and community agencies;
(g) To reduce the costs of incarceration; and
(h) To improve the efficiency of the criminal justice system by enacting an effective methodology.
II. While working in drug court reshapes the traditional roles of judges and lawyers, ethical duties do not significantly differ from those in traditional courtrooms. Drug court judges and lawyers must adhere to the standards set forth in the Model Code of Judicial Conduct, the Model Rules of Professional Conduct, and the American Bar Association Standards of Criminal Justice, The proper exercise of the roles of judge or lawyer in the drug court need not conflict with the professionals’ ethical obligations and can enable judges and attorneys to fulfill the highest aspirations of their professional ethics while embarking on an innovative way to break the cycle of substance abuse and crime. Drug court judges and attorneys must remain continually cognizant of the due process rights guaranteed to all citizens and the state’s substantial interest in maintaining effective and efficient judicial and penal systems.
490-G:4 Court Structure.
I. Each superior or circuit court may establish drug courts pursuant to the local advisory committee under which drug offenders will be processed to address appropriately the identified substance abuse problem as a condition of pretrial release, probation, jail, prison, parole, or other release from a correctional facility.
II. Participation in drug court, with the consent of the prosecution and the court, shall be pursuant to a written agreement as determined by the drug court team.
III. The court may grant reasonable incentives under the written agreement and may impose reasonable sanctions under the written agreement. The court also may incarcerate or expel the drug offender.
IV. Upon successful completion of drug court, a drug offender’s case shall be disposed of by the judge in the manner prescribed by the agreement and by the applicable policies and procedures adopted by the drug court. This may include, but is not limited to, withholding criminal charges, dismissal of charges, probation, deferred sentencing, suspended sentencing, split sentencing, or a reduced period of incarceration.
V. Drug courts must include the “Ten Key Components” and the drug court team shall act to ensure compliance with them.
VI. Cases handled pursuant to this chapter shall be calendared on dedicated dockets, set aside from other criminal cases.
VII. Each local jurisdiction that intends to establish a drug court or courts, or continue the operation of an existing drug court or courts, shall establish a local drug court team.
VIII. The drug court team shall, when practicable, conduct a staffing prior to each drug court session to discuss and provide updated information regarding drug offenders. After determining their progress or lack thereof, the drug court team shall agree on the appropriate incentive or sanction to be applied. If the drug court team cannot agree on the appropriate action, the court shall make the decision based on information presented in the staffing.
IX. Nothing contained in this chapter shall confer a right or an expectation of a right to participate in drug courts nor does it obligate the drug courts to accept every drug offender. Neither the establishment of drug courts nor anything herein shall be construed as limiting the discretion of the jurisdiction’s prosecutor to act on any criminal case which he or she deems advisable to prosecute. Each drug court team may establish rules and may make special orders and rules as necessary that do not conflict with rules adopted by the state supreme court.
X. Each drug offender shall contribute to the cost of the substance abuse treatment in accordance with the written agreement under RSA 490-G:4, II.
XI. A drug court coordinator will be responsible for the general administration of drug court.
XII. The supervising agency shall timely forward information to the drug court concerning the drug offender’s progress and compliance with any court-imposed terms and conditions.
490-G:5 Treatment and Support Services.
I. As part of the diagnostic assessment, each jurisdiction shall establish a system to ensure that drug offenders are placed into a clinically approved substance abuse treatment program. To accomplish this, the program conducting the individual assessment should make specific recommendations to the drug court team regarding the type of treatment program and duration necessary so that a drug offender’s individualized needs can be addressed. These assessments and resulting recommendations should be based upon objective medical diagnostic criteria. Treatment recommendations accepted by the court, pursuant to this chapter, shall be deemed to be reasonable and necessary.
II. An adequate continuum of care for drug offenders shall be established in response to this chapter.
III. A drug court making a referral for substance abuse treatment shall refer the drug offender to a program that is licensed, certified, or approved by the court.
IV. The court shall determine which treatment programs are authorized to provide the recommended treatment to drug offenders. The relationship between the treatment program and the court should be governed by a memorandum of understanding, which should include the timely reporting of the drug offender’s progress or lack thereof to the drug court.
V. It is essential to provide offenders with adequate support services and aftercare.
VI. Recognizing that drug offender are frequently dually diagnosed, appropriate services should be made available, where practicable.
VII. Recognizing that the longer a drug offender stays in treatment, the better the outcome, the length of stay in treatment should be determined by the drug court team based on individual needs and accepted practices.
490-G:6 Drug Testing.
I. The drug court team shall ensure fair, accurate, and reliable drug testing procedures.
II. The drug offender shall be ordered to submit to frequent, random, and observed drug testing to monitor abstinence.
III. The results of all drug tests shall be provided to the drug court team as soon as practicable, but in the event of a positive drug test, not later than 7 days from the test.
IV. Anyone in receipt of drug test results shall maintain the information in compliance with the requirements of federal and state confidentially laws.
V. The drug offender shall be responsible for costs, pursuant to the written agreement under RSA 490-G:4, II.
490-G:7 Steering Committee.
I. It is recommended that the drug court team convene a steering committee made up of community leaders who can provide support for the team.
II. The committee may identify existing resources for assessment and treatment and make recommendations for the allocation of those resources.
III. The committee may explore grants and funds necessary to support drug courts.
IV. The committee may promote training and technical assistance for criminal justice personnel and education for the public about the effectiveness of drug court.
V. The committee may certify that the drug court is in compliance with the standards established by it and may revoke the certification of drug courts that do not comply.
VI. While the committee has general statewide oversight, the chief judge in each jurisdiction shall appoint a local advisory committee for a local drug court or courts. The advisory committee shall ensure quality, efficiency, and fairness in planning, implementing, and operating the drug court or courts that serve the jurisdiction.
VII. The committee may establish evaluation criteria and procedures, including tracking the status of drug offenders after concluding drug court. The critical performance measures to be collected shall include those set forth in RSA 490-G:8, I.
VIII. The local advisory committee shall ensure the provision of a full continuum of care for drug offenders.
490-G:8 Program Integrity and Offender Accountability.
I. Drug courts may collect and maintain the following information:
(a) Prior criminal history.
(b) Prior substance abuse treatment history, including information on the drug offender’s success or failure in those programs.
(c) Employment, education, and income histories.
(d) Gender, race, ethnicity, marital and family status, and any child custody and support obligations.
(e) The number of both addicted and healthy babies born to female drug offenders during and after participation in drug court.
(f)(1) Instances of relapse occurring before, during, and after successful completion of drug court. Relapse shall be measured at intervals of one, 2 and 5 years after successful graduation.
(2) Instances of relapse occurring before, during, and after a drug offender’s failed participation in drug court.
(g)(1) Instances of recidivism occurring before, during, and after successful completion of drug court. Recidivism shall be measured at intervals of one, 2, and 5 years after successful graduation.
(2) Instances of recidivism occurring before, during, and after a drug offender’s failed participation in drug court.
(h) The number of offenders screened for eligibility, the number of eligible drug offenders who were and were not admitted and their case dispositions.
(i) The drug of choice and the estimated daily financial cost to the drug offender at the time of entry into the program.
(j) Costs of operation and sources of funding.
II. A drug offender may be required as a condition of pretrial, probation, or parole to provide the information described in this section. The collection and maintenance of information under this section shall be collected in a standardized format.
III. To protect drug offenders’ privacy in accordance with federal and state confidentiality laws, treatment records must be kept in a secure environment, separated from the court records to which the public has access.
IV. Drug courts shall comply with all state and federal due process requirements.
V. Evaluations shall be conducted in accordance with paragraph I.
VI. The offender shall be responsible for costs in accordance with the written agreement under RSA 490-G:4, II.
490-G:9 Immunity From Liability.
I. Any individual who, in good faith, provides services pursuant to this chapter, shall not be liable in any civil action. The grant of immunity provided for in this paragraph shall extend to all employees and administrative personnel.
II. Any qualified person who obtains, in a medically accepted manner, a specimen of breath, blood, urine, or other bodily substance pursuant to any provision of this chapter shall not be liable in any civil action.
490-G:10 Statutory Construction. The provisions of this chapter shall be construed to effectuate its remedial purposes.
490-G:11 Severability. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
490-G:12 Enforcement. Violations of any of the provisions in this chapter shall be referred to the appropriate court or other responsible governing body for resolution.
2 Effective Date. This act shall be effect January 1, 2013.
LBAO
12-2749
12/29/11
HB 1665-FN - FISCAL NOTE
AN ACT adopting the model drug offender accountability and treatment act.
FISCAL IMPACT:
The Judicial Branch states this bill may increase state general fund expenditures by an indeterminable amount in FY 2013 and each year thereafter. The New Hampshire Association of Counties states this bill may decrease county expenditures by an indeterminable amount in FY 2013 and each year thereafter. There is no fiscal impact on local expenditures or state, county and local revenue.
METHODOLOGY:
The Judicial Branch states this bill enacts the model drug offender accountability and treatment act and enables the Branch to establish drug courts. The bill does not require the establishment of the drug courts nor does it provide an appropriation to do so. The Branch states it has no data to determine the fiscal impact of implementing drug courts. The Branch states for each drug court established there would need to be a drug court coordinator. The Branch estimates the salary and benefits for a drug court coordinator to be $65,130 annually. The Branch states to have drug courts fully operational statewide, there would need to be seven coordinators at an annual cost of $455,910 ($65,130 salary and benefits * 7 coordinators).
The New Hampshire Association of Counties states to the extent drug courts are implemented and less individuals are incarcerated in county correctional facilities, county expenditures will decrease.