BILL NUMBER: SB 1137 CHAPTERED
BILL TEXT
CHAPTER 63
FILED WITH SECRETARY OF STATE JULY 12, 2006
APPROVED BY GOVERNOR JULY 12, 2006
PASSED THE SENATE JUNE 27, 2006
PASSED THE ASSEMBLY JUNE 27, 2006
AMENDED IN ASSEMBLY JUNE 27, 2006
AMENDED IN ASSEMBLY JUNE 26, 2006
INTRODUCED BY Senator Ducheny
JANUARY 10, 2006
An act to amend Sections 11999.6, 11999.9, 11999.10, and 11999.12
of the Health and Safety Code, and to amend Sections 1210, 1210.1,
and 3063.1 of the Penal Code, relating to drug treatment, and
declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 1137, Ducheny Drug treatment.
Existing law, the Substance Abuse and Crime Prevention Act of
2000, was enacted by the voters at the November 2000 general
election. Amendment of the act by the Legislature requires a 2/3 vote
of both houses of the Legislature. The act requires all amendments
to it to further the act and be consistent with its purposes. The act
defines "drug treatment program" for purposes of the act, and
specifically excludes in-custody drug treatment from that definition.
The act creates a Substance Abuse Treatment Trust Fund to provide
moneys to cover county costs associated with drug treatment programs,
as specified. The act also requires annual and long-term
effectiveness and financial impact studies on the programs funded by
the act as well as periodic audits of the expenditures.
This bill would specify, in addition, that the moneys provided by
the act cannot be used to fund in any way drug treatment courts or
supervision associated with the drug treatment courts. This bill
would also provide for 3-, 2-year followup effectiveness and fiscal
impact studies, instead of the annual studies and require the
department to submit annual reports on the people served as a result
of this act. It would also revise the items to be included in the
study. This bill would permit the department to require a county to
undertake a corrective action if a periodic audit determines the
county has spent money provided by the act not in accordance with the
act.
The act defines "drug treatment program" as state licensed or
community facilities providing a specified list of services including
halfway house treatments, drug prevention courses, and relapse and
severe dependence issues.
This bill would remove those elements of the definition of "drug
treatment program" and add aftercare services.
The act defines "successful completion of treatment" as a
defendant who has completed the prescribed course of treatment and,
as a result, there is reasonable cause to believe that the defendant
will not abuse controlled substances in the future.
This bill would instead define "successful completion of treatment"
as a defendant who has completed the prescribed course of treatment.
Completion of treatment would not mean cessation of narcotic
replacement therapy.
The act requires any person convicted of a nonviolent drug
possession offense to receive probation. As a condition of probation,
the court is required to require a defendant to participate in, and
complete, an appropriate drug treatment program. The act prohibits
the imposition of incarceration as a condition of probation.
This bill would require drug testing as a condition of probation.
The bill would require a person subject to the act to be monitored by
the court, as specified.
The act does not apply to a defendant who has been convicted of
one or more violent or serious felonies, unless the nonviolent drug
possession offense occurred more than 5 years after the defendant was
free from custody for the prior offense and from the commission of
other types of crimes against a person.
This bill would, provide that a person who has previously served 3
separate prison terms for non-drug-related felonies, or a person who
has been convicted of a misdemeanor or a felony at least 5 times
within the prior 30 months, may be excluded from treatment if the
court makes certain findings. The bill would provide that the court
shall state its findings, and the reasons for those findings, on the
record.
The act does not apply to any defendant who, while using a firearm
unlawfully possesses or is unlawfully under the influence of certain
controlled substances.
This bill would instead make its provisions inapplicable to any
defendant who, while armed with a deadly weapon unlawfully possesses
or is under the influence of certain controlled substances.
Under the act, a defendant may petition the sentencing court for
dismissal of the charges at any time after completion of drug
treatment.
This bill would require the treatment provider to submit the
treatment plan and regular reports to the probation department.
Additionally, this bill would authorize the court, after a hearing to
determine whether the defendant has successfully completed treatment
and probation, including refraining from the use of drugs after
completion of treatment, to set the conviction aside, as specified.
Under the act, once the indictment, complaint, or information is
dismissed, a record pertaining to the arrest and conviction for that
offense may not be used to deny the defendant employment.
Under the act, if a defendant violates probation, as specified,
the court may revoke probation or it may intensify or alter the drug
treatment plan.
This bill would authorize a court to also order incarceration for
a specified period, in order to enhance treatment compliance, and in
some circumstances, to order the defendant to enter a residential
drug treatment program, if available, or be placed in a county jail
for not more than 10 days for detoxification purposes only. This bill
would however, provide that no incarceration costs will be
reimbursed from the fund.
Existing law, with some exceptions, prohibits the suspension or
revocation of parole for commission of a nonviolent drug possession
offense or violating any drug-related condition of parole. Further,
existing law prescribes the steps the Parole Authority is to take
upon this type of violation, and the actions that any drug treatment
provider must thereafter take, as specified. Drug treatment services
are not to be required as a condition of parole for longer than 12
months.
This bill would authorize the Department of Corrections and
Rehabilitation, Division of Adult Parole Operations to make a finding
that treatment beyond 12 months is necessary, and under those
conditions, treatment may be extended to 24 months. The bill would
make clarifying changes to related provisions.
Because the bill would increase punishment for crimes, including
authorizing jail time, the bill would create a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
This bill would declare that it is to take effect immediately as an
urgency statute.
Further, this bill would provide that if any provision is found to
be invalid its provisions shall be submitted to the voters at the
next statewide election.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares the following:
(a) On November 7, 2000, the people of the State of California
enacted the Substance Abuse and Crime Prevention Act of 2000
(hereinafter the act), codified in Sections 11999.5, 11999.6,
11999.9, 11999.10, and 11999.12 of the Health and Safety Code, and
Sections 1210, 1210.1, and 3063.1 of the Penal Code to provide
community-based substance abuse treatment programs for nonviolent
defendants, probationers and parolees charged with simple drug
possession or drug use offenses.
(b) The act provided an appropriation from the General Fund to the
Substance Abuse Treatment Trust Fund in the amount of one hundred
and twenty million dollars ($120,000,000) annually through the
2005-06 fiscal year with any additional appropriation dependent on
review and action by the Legislature.
(c) Each year following the implementation of the act the
Department of Alcohol and Drug Programs (hereinafter the department)
was required and did in fact conduct a study to evaluate the
effectiveness and financial impact of the programs which were funded
pursuant to the act. The studies have focused on the implementation
process, participant demographics and treatment completion rates as
well as other impacts and issues the department identified. Reports
were submitted to the Legislature by the department.
(d) In addition, the department contracted, as required by the
act, with a public university, the University of California at Los
Angeles (hereinafter UCLA) to evaluate the effectiveness and
financial impact of the programs which were funded pursuant to the
requirements of this act and to report findings that were in fact
forwarded to the Legislature by the department.
(e) The UCLA evaluations have found that approximately 30 percent
of referred SACPA offenders do not enter treatment. Judicial
monitoring, through dedicated court calendars, collaboration and
coordination between the courts, probation and treatment, as
demonstrated by drug courts, would enhance entry, retention, and
completion of treatment by offenders.
(f) The UCLA evaluations have found that 34 percent of those who
do in fact enter treatment complete that treatment. This completion
rate, as well as retention rates, can be improved through the
enhancement of compliance with treatment, as well as tailoring
treatment to the needs of offenders following drug-related violations
of probation to assure that the level and duration of treatment they
are assessed or reassessed to overcome addiction, including
detoxification and residential services, are provided, and that
treatment be of sufficient duration to meet individual needs of
defendants.
(g) SACPA does not specifically address the use of short periods
of jail time as a motivational tool to hold SACPA offenders
accountable to enter and stay in treatment. Studies have reported
that drug court clients were more likely to enter treatment, remained
in treatment significantly longer, and engaged in significantly less
drug use when they received swift and sure sanctions and rewards,
including the possibility of brief periods of jail time during the
course of treatment. Therefore, sanctions including short periods of
jail time for relapsing, problematic, or recalcitrant offenders, on a
showing of need after consideration of important treatment and other
factors, should be available, not as a substitute for treatment but
as a tool to motivate and hold offenders accountable.
(h) The UCLA evaluations speak to the need to verify self-reported
drug use by drug testing. Drug testing is widely accepted by
treatment providers as an integral component of treatment. In
addition, test results are needed to assist providers in adjusting
treatment plans. Therefore, courts shall require drug testing as a
condition of probation, commensurate with treatment needs.
(i) The UCLA evaluations also speak to the high cost in terms of
arrests and convictions of violent crimes, property crimes, and sex
crimes of those presently eligible defendants who have five or more
convictions in the 30-month period prior to their SACPA eligible
arrests in comparison to the typical SACPA offender, and recommend
that the Legislature may wish to consider possible changes as to the
eligibility of these offenders who UCLA found comprise 1.6 percent of
the total number of offenders eligible for SACPA, yet had
postconviction crime costs that were 10 times higher than the costs
for the typical or median SACPA offender during the 30-month followup
study period.
(j) It is the intent of the Legislature, therefore, to do all of
the following to further the purposes of the act:
(1) Maintain the General Fund transfer to the Substance Abuse
Treatment Trust Fund, conditioned on modifications to the SACPA
program that will improve outcomes and promote accountability
consistent with the act and to further the purposes of the act.
(2) Provide for closer judicial monitoring through dedicated
calendars and close collaboration between the court, probation, and
treatment to improve offender outcomes.
(3) Provide treatment, including detoxification and residential
services that are tailored to the individual needs of offenders, and
of sufficient duration to improve completion rates. In addition,
permit judicial discretion to provide offenders additional
opportunities following a third drug-related violation of probation,
and first non-drug-related violation of probation to complete
treatment, as well as, after a hearing, to remove offenders from the
program who pose a danger to the public and, in addition, will not
benefit from treatment.
(4) Provide brief jail sanctions to enhance accountability and as
a motivational tool to improve the number of defendants who enter
treatment, remain in treatment, and complete treatment and probation
consistent with the purposes of the act.
(5) Mandate drug testing as a treatment tool as well as a method
to assure accountability.
(6) Provide that offenders who have five or more prior convictions
at the time they commit a SACPA eligible offense are presumed to be
eligible for SACPA. However, they may be found ineligible by the
judge after consideration and findings at a hearing, if the offender
poses a danger to the public or would not benefit from treatment.
(7) It is also the intent of the Legislature to address additional
issues that need clarification, or were not adequately addressed by
the act, that need to be resolved to further the purposes of the act,
consistent with the act.
SEC. 2. Section 11999.6 of the Health and Safety Code is amended
to read:
11999.6. Moneys deposited in the Substance Abuse Treatment Trust
Fund shall be distributed annually by the Secretary of the Health and
Human Services Agency through the State Department of Alcohol and
Drug Programs to counties to cover the costs of placing persons in
and providing drug treatment programs under this act, and vocational
training, family counseling, and literacy training under this act.
Additional costs that may be reimbursed from the Substance Abuse
Treatment Trust Fund include probation department costs, court
monitoring costs and any miscellaneous costs made necessary by the
provisions of this act other than drug testing services of any kind.
Incarceration costs cannot be reimbursed from the fund. Those moneys
shall be allocated to counties through a fair and equitable
distribution formula that includes, but is not limited to, per capita
arrests for controlled substance possession violations and substance
abuse treatment caseload, as determined by the department as
necessary to carry out the purposes of this act. The department may
reserve a portion of the fund to pay for direct contracts with drug
treatment service providers in counties or areas in which the
director of the department has determined that demand for drug
treatment services is not adequately met by existing programs.
However, nothing in this section shall be interpreted or construed to
allow any entity to use funds from the Substance Abuse Treatment
Trust Fund to supplant funds from any existing fund source or
mechanism currently used to provide substance abuse treatment. In
addition, funds from the Substance Abuse Treatment Trust Fund shall
not be used to fund in any way the drug treatment courts established
pursuant to Article 2 (commencing with Section 11970.1) or Article 3
(commencing with Section 11970.4) of Chapter 2 of Part 3 of Division
10.5, including drug treatment or probation supervision associated
with those drug treatment courts.
SEC. 3. Section 11999.9 of the Health and Safety Code is amended
to read:
11999.9. (a) The department shall conduct three two-year followup
studies to evaluate the effectiveness and financial impact of the
programs that are funded pursuant to the requirements of this act,
and submit those studies to the Legislature no later than January 1,
2009, January 1, 2011, and January 1, 2013, respectively. The
evaluation studies shall include, but not be limited to, a study of
the implementation process, a review of lower incarcerations costs,
reductions in crime, reduced prison and jail construction, reduced
welfare costs, the adequacy of funds appropriated, and other impacts
or issues the department can identify, in addition to all of the
following:
(1) Criminal justice measures on rearrests, jail and prison days
averted, and crime trends.
(2) A classification, in summary form, of rearrests as having
occurred as a result of:
(A) A parole violation.
(B) A parole revocation.
(C) A probation violation.
(D) A probation revocation.
(3) A classification, in summary form, of the disposition of
crimes committed in terms of whether the person was:
(A) Retained on probation.
(B) Sentenced to jail.
(C) Sentenced to prison.
(4) Treatment measures on completion rates and quality of life
indicators, such as alcohol and drug used, employment, health, mental
health, and family and social supports.
(5) A separate discussion of the information described in
paragraphs (1) to (3), inclusive, for offenders whose primary drug of
abuse was methamphetamine or who were arrested for possession or use
of methamphetamine and, commencing with the report due on or before
January 1, 2009, the report shall include a separate analysis of the
costs and benefits of treatment specific to these methamphetamine
offenders.
(b) In addition to studies to evaluate the effectiveness and
financial impact of the programs that are funded pursuant to the
requirements of this act, the department shall produce an annual
report detailing the number and characteristics of participants
served as a result of this act, and the related costs.
SEC. 4. Section 11999.10 of the Health and Safety Code is amended
to read:
11999.10. The department shall allocate up to 0.5 percent of the
fund's total moneys each year to fund the costs of the studies
required in Section 11999.9 by a public or private university.
SEC. 5. Section 11999.12 of the Health and Safety Code is amended
to read:
11999.12. The department shall conduct periodic audits of the
expenditures made by any county that is funded, in whole or in part,
with funds provided by this act. Counties shall repay to the
department any funds that are not spent in accordance with the
requirements of this act. The department may require a corrective
action by the county in the place of repayment, as determined by the
department.
SEC. 6. Section 1210 of the Penal Code is amended to read:
1210. As used in Sections 1210.1 and 3063.1 of this code, and
Division 10.8 (commencing with Section 11999.4) of the Health and
Safety Code, the following definitions apply:
(a) The term "nonviolent drug possession offense" means the
unlawful personal use, possession for personal use, or transportation
for personal use of any controlled substance identified in Section
11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or
the offense of being under the influence of a controlled substance
in violation of Section 11550 of the Health and Safety Code. The term
"nonviolent drug possession offense" does not include the possession
for sale, production, or manufacturing of any controlled substance
and does not include violations of Section 4573.6 or 4573.8.
(b) The term "drug treatment program" or "drug treatment" means a
state licensed or certified community drug treatment program, which
may include one or more of the following: drug education, outpatient
services, narcotic replacement therapy, residential treatment,
detoxification services, and aftercare services. The term "drug
treatment program" or "drug treatment" includes a drug treatment
program operated under the direction of the Veterans Health
Administration of the Department of Veterans Affairs or a program
specified in Section 8001. That type of program shall be eligible to
provide drug treatment services without regard to the licensing or
certification provisions required by this subdivision. The term "drug
treatment program" or "drug treatment" does not include drug
treatment programs offered in a prison or jail facility.
(c) The term "successful completion of treatment" means that a
defendant who has had drug treatment imposed as a condition of
probation has completed the prescribed course of drug treatment as
recommended by the treatment provider and ordered by the court and,
as a result, there is reasonable cause to believe that the defendant
will not abuse controlled substances in the future. Completion of
treatment shall not require cessation of narcotic replacement
therapy.
(d) The term "misdemeanor not related to the use of drugs" means a
misdemeanor that does not involve (1) the simple possession or use
of drugs or drug paraphernalia, being present where drugs are used,
or failure to register as a drug offender, or (2) any activity
similar to those listed in (1).
SEC. 7. Section 1210.1 of the Penal Code is amended to read:
1210.1. (a) Notwithstanding any other provision of law, and
except as provided in subdivision (b), any person convicted of a
nonviolent drug possession offense shall receive probation. As a
condition of probation the court shall require participation in and
completion of an appropriate drug treatment program. The court shall
impose appropriate drug testing as a condition of probation. The
court may also impose, as a condition of probation, participation in
vocational training, family counseling, literacy training and/or
community service. A court may not impose incarceration as an
additional condition of probation. Aside from the limitations imposed
in this subdivision, the trial court is not otherwise limited in the
type of probation conditions it may impose. Probation shall be
imposed by suspending the imposition of sentence. No person shall be
denied the opportunity to benefit from the provisions of the
Substance Abuse and Crime Prevention Act of 2000 based solely upon
evidence of a co-occurring psychiatric or developmental disorder. To
the greatest extent possible, any person who is convicted of, and
placed on probation pursuant to this section for a nonviolent drug
possession offense shall be monitored by the court through the use of
a dedicated court calendar and the incorporation of a collaborative
court model of oversight that includes close collaboration with
treatment providers and probation, drug testing commensurate with
treatment needs, and supervision of progress through review hearings.
In addition to any fine assessed under other provisions of law,
the trial judge may require any person convicted of a nonviolent drug
possession offense who is reasonably able to do so to contribute to
the cost of his or her own placement in a drug treatment program.
(b) Subdivision (a) shall not apply to any of the following:
(1) Any defendant who previously has been convicted of one or more
violent or serious felonies as defined in subdivision (c) of Section
667.5 or subdivision (c) of Section 1192.7, respectively, unless the
nonviolent drug possession offense occurred after a period of five
years in which the defendant remained free of both prison custody and
the commission of an offense that results in a felony conviction
other than a nonviolent drug possession offense, or a misdemeanor
conviction involving physical injury or the threat of physical injury
to another person.
(2) Any defendant who, in addition to one or more nonviolent drug
possession offenses, has been convicted in the same proceeding of a
misdemeanor not related to the use of drugs or any felony.
(3) Any defendant who, while armed with a deadly weapon, with the
intent to use the same as a deadly weapon, unlawfully possesses or is
under the influence of any controlled substance identified in
Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety
Code.
(4) Any defendant who refuses drug treatment as a condition of
probation.
(5) Any defendant who has two separate convictions for nonviolent
drug possession offenses, has participated in two separate courses of
drug treatment pursuant to subdivision (a), and is found by the
court, by clear and convincing evidence, to be unamenable to any and
all forms of available drug treatment, as defined in subdivision (b)
of Section 1210. Notwithstanding any other provision of law, the
trial court shall sentence that defendant to 30 days in jail.
(c) (1) Any defendant who has previously been convicted of at
least three non-drug-related felonies for which the defendant has
served three separate prison terms within the meaning of subdivision
(b) of Section 667.5 shall be presumed eligible for treatment under
subdivision (a). The court may exclude such a defendant from
treatment under subdivision (a) where the court, pursuant to the
motion of the prosecutor or its own motion, finds that the defendant
poses a present danger to the safety of others and would not benefit
from a drug treatment program. The court shall, on the record, state
its findings, the reasons for those findings.
(2) Any defendant who has previously been convicted of a
misdemeanor or felony at least five times within the prior 30 months
shall be presumed to be eligible for treatment under subdivision (a).
The court may exclude such a defendant from treatment under
subdivision (a) if the court, pursuant to the motion of the
prosecutor, or on its own motion, finds that the defendant poses a
present danger to the safety of others or would not benefit from a
drug treatment program. The court shall, on the record, state its
findings and the reasons for those findings.
(d) Within seven days of an order imposing probation under
subdivision (a), the probation department shall notify the drug
treatment provider designated to provide drug treatment under
subdivision (a). Within 30 days of receiving that notice, the
treatment provider shall prepare a treatment plan and forward it to
the probation department for distribution to the court and counsel.
The treatment provider shall provide to the probation department
standardized treatment progress reports, with minimum data elements
as determined by the department, including all drug testing results.
At a minimum, the reports shall be provided to the court every 90
days, or more frequently, as the court directs.
(1) If at any point during the course of drug treatment the
treatment provider notifies the probation department and the court
that the defendant is unamenable to the drug treatment being
provided, but may be amenable to other drug treatments or related
programs, the probation department may move the court to modify the
terms of probation, or on its own motion, the court may modify the
terms of probation after a hearing to ensure that the defendant
receives the alternative drug treatment or program.
(2) If at any point during the course of drug treatment the
treatment provider notifies the probation department and the court
that the defendant is unamenable to the drug treatment provided and
all other forms of drug treatment programs pursuant to subdivision
(b) of Section 1210, the probation department may move to revoke
probation. At the revocation hearing, if it is proved that the
defendant is unamenable to all drug treatment programs pursuant to
subdivision (b) of Section 1210, the court may revoke probation.
(3) Drug treatment services provided by subdivision (a) as a
required condition of probation may not exceed 12 months, unless the
court makes a finding supported by the record, that the continuation
of treatment services beyond 12 months is necessary for drug
treatment to be successful. If such a finding is made, the court may
order up to two six-month extensions of treatment services. The
provision of treatment services under the Substance Abuse and Crime
Prevention Act of 2000 shall not exceed 24 months.
(e) (1) At any time after completion of drug treatment and the
terms of probation, the court shall conduct a hearing, and if the
court finds that the defendant successfully completed drug treatment,
and substantially complied with the conditions of probation,
including refraining from the use of drugs after the completion of
treatment, the conviction on which the probation was based shall be
set aside and the court shall dismiss the indictment, complaint, or
information against the defendant. In addition, except as provided in
paragraphs (2) and (3), both the arrest and the conviction shall be
deemed never to have occurred. The defendant may additionally
petition the court for a dismissal of charges at any time after
completion of the prescribed course of drug treatment. Except as
provided in paragraph (2) or (3), the defendant shall thereafter be
released from all penalties and disabilities resulting from the
offense of which he or she has been convicted.
(2) Dismissal of an indictment, complaint, or information pursuant
to paragraph (1) does not permit a person to own, possess, or have
in his or her custody or control any firearm capable of being
concealed upon the person or prevent his or her conviction under
Section 12021.
(3) Except as provided below, after an indictment, complaint, or
information is dismissed pursuant to paragraph (1), the defendant may
indicate in response to any question concerning his or her prior
criminal record that he or she was not arrested or convicted for the
offense. Except as provided below, a record pertaining to an arrest
or conviction resulting in successful completion of a drug treatment
program under this section may not, without the defendant's consent,
be used in any way that could result in the denial of any employment,
benefit, license, or certificate.
Regardless of his or her successful completion of drug treatment,
the arrest and conviction on which the probation was based may be
recorded by the Department of Justice and disclosed in response to
any peace officer application request or any law enforcement inquiry.
Dismissal of an information, complaint, or indictment under this
section does not relieve a defendant of the obligation to disclose
the arrest and conviction in response to any direct question
contained in any questionnaire or application for public office, for
a position as a peace officer as defined in Section 830, for
licensure by any state or local agency, for contracting with the
California State Lottery, or for purposes of serving on a jury.
(f) (1) If probation is revoked pursuant to the provisions of this
subdivision, the defendant may be incarcerated pursuant to otherwise
applicable law without regard to the provisions of this section. The
court may modify or revoke probation if the alleged violation is
proved.
(2) If a defendant receives probation under subdivision (a), and
violates that probation either by committing an offense that is not a
nonviolent drug possession offense, or by violating a
non-drug-related condition of probation, and the state moves to
revoke probation, the court may remand the defendant for a period not
exceeding 30 days during which time the court may receive input from
treatment, probation, the state, and the defendant, and the court
may conduct further hearings as it deems appropriate to determine
whether or not probation should be reinstated under this section. If
the court reinstates the defendant on probation, the court may modify
the treatment plan and any other terms of probation, and continue
the defendant in a treatment program under the Substance Abuse and
Crime Prevention Act of 2000. If the court reinstates the defendant
on probation, the court may, after receiving input from the treatment
provider and probation, if available, intensify or alter the
treatment plan under subdivision (a), and impose sanctions, including
jail sanctions not exceeding 30 days, a tool to enhance treatment
compliance.
(3) (A) If a defendant receives probation under subdivision (a),
and violates that probation either by committing a nonviolent drug
possession offense, or a misdemeanor for simple possession or use of
drugs or drug paraphernalia, being present where drugs are used, or
failure to register as a drug offender, or any activity similar to
those listed in subdivision (d) of Section 1210, or by violating a
drug-related condition of probation, and the state moves to revoke
probation, the court shall conduct a hearing to determine whether
probation shall be revoked. The trial court shall revoke probation if
the alleged probation violation is proved and the state proves by a
preponderance of the evidence that the defendant poses a danger to
the safety of others. If the court does not revoke probation, it may
intensify or alter the drug treatment plan and in addition, if the
violation does not involve the recent use of drugs as a circumstance
of the violation, including, but not limited to, violations relating
to failure to appear at treatment or court, noncompliance with
treatment, and failure to report for drug testing, the court may
impose sanctions including jail sanctions that may not exceed 48
hours of continuous custody as a tool to enhance treatment compliance
and impose other changes in the terms and conditions of probation.
The court shall consider, among other factors, the seriousness of the
violation, previous treatment compliance, employment, education,
vocational training, medical conditions, medical treatment, including
narcotics replacement treatment, and including the opinion of the
defendant's licensed and treating physician if immediately available
and presented at the hearing, child support obligations, and family
responsibilities. The court shall consider additional conditions of
probation, which may include, but are not limited to, community
service and supervised
work programs. If one of the circumstances of the violation involves
recent drug use, as well as other circumstances of violation, and the
circumstance of recent drug use is demonstrated to the court by
satisfactory evidence and a finding made on the record, the court
may, after receiving input from treatment and probation, if
available, direct the defendant to enter a licensed detoxification or
residential treatment facility, and if there is no bed immediately
available in such a facility, the court may order that the defendant
be confined in a county jail for detoxification purposes only, if the
jail offers detoxification services, for a period not to exceed 10
days. The detoxification services must provide narcotic replacement
therapy for those defendants presently actually receiving narcotic
replacement therapy.
(B) If a defendant receives probation under subdivision (a), and
for the second time violates that probation either by committing a
nonviolent drug possession offense, or a misdemeanor for simple
possession or use of drugs or drug paraphernalia, being present where
drugs are used, or failure to register as a drug offender, or any
activity similar to those listed in subdivision (d) of Section 1210,
or by violating a drug-related condition of probation, and the state
moves to revoke probation, the court shall conduct a hearing to
determine whether probation shall be revoked. The trial court shall
revoke probation if the alleged probation violation is proved and the
state proves by a preponderance of the evidence either that the
defendant poses a danger to the safety of others or is unamenable to
drug treatment. In determining whether a defendant is unamenable to
drug treatment, the court may consider, to the extent relevant,
whether the defendant (i) has committed a serious violation of rules
at the drug treatment program, (ii) has repeatedly committed
violations of program rules that inhibit the defendant's ability to
function in the program, or (iii) has continually refused to
participate in the program or asked to be removed from the program.
If the court does not revoke probation, it may intensify or alter the
drug treatment plan, and may, in addition, if the violation does not
involve the recent use of drugs as a circumstance of the violation,
including, but not limited to, violations relating to failure to
appear at treatment or court, noncompliance with treatment, and
failure to report for drug testing, impose sanctions including jail
sanctions that may not exceed 120 hours of continuous custody as a
tool to enhance treatment compliance and impose other changes in the
terms and conditions of probation. The court shall consider, among
other factors, the seriousness of the violation, previous treatment
compliance, employment, education, vocational training, medical
conditions, medical treatment, including narcotics replacement
treatment, and including the opinion of the defendant's licensed and
treating physician if immediately available and presented at the
hearing, child support obligations, and family responsibilities. The
court shall consider additional conditions of probation, which may
include, but are not limited to, community service and supervised
work programs. If one of the circumstances of the violation involves
recent drug use, as well as other circumstances of violation, and the
circumstance of recent drug use is demonstrated to the court by
satisfactory evidence and a finding made on the record, the court
may, after receiving input from treatment and probation, if
available, direct the defendant to enter a licensed detoxification or
residential treatment facility, and if there is no bed immediately
available in the facility, the court may order that the defendant be
confined in a county jail for detoxification purposes only, if the
jail offers detoxification services, for a period not to exceed 10
days. Detoxification services must provide narcotic replacement
therapy for those defendants presently actually receiving narcotic
replacement therapy.
(C) If a defendant receives probation under subdivision (a), and
for the third or subsequent time violates that probation either by
committing a nonviolent drug possession offense, or by violating a
drug-related condition of probation, and the state moves for a third
or subsequent time to revoke probation, the court shall conduct a
hearing to determine whether probation shall be revoked. If the
alleged probation violation is proved, the defendant is not eligible
for continued probation under subdivision (a) unless the court
determines that the defendant is not a danger to the community and
would benefit from further treatment under subdivision (a). The court
may then either intensify or alter the treatment plan under
subdivision (a) or transfer the defendant to a highly structured drug
court. If the court continues the defendant in treatment under
subdivision (a), or drug court, the court may impose appropriate
sanctions including jail sanctions as the court deems appropriate.
(D) If a defendant on probation at the effective date of this act
for a nonviolent drug possession offense violates that probation
either by committing a nonviolent drug possession offense, or a
misdemeanor for simple possession or use of drugs or drug
paraphernalia, being present where drugs are used, or failure to
register as a drug offender, or any activity similar to those listed
in subdivision (d) of Section 1210, or by violating a drug-related
condition of probation, and the state moves to revoke probation, the
court shall conduct a hearing to determine whether probation shall be
revoked. The trial court shall revoke probation if the alleged
probation violation is proved and the state proves by a preponderance
of the evidence that the defendant poses a danger to the safety of
others. If the court does not revoke probation, it may modify or
alter the treatment plan, and in addition, if the violation does not
involve the recent use of drugs as a circumstance of the violation,
including, but not limited to, violations relating to failure to
appear at treatment or court, noncompliance with treatment, and
failure to report for drug testing, the court may impose sanctions
including jail sanctions that may not exceed 48 hours of continuous
custody as a tool to enhance treatment compliance and impose other
changes in the terms and conditions of probation. The court shall
consider, among other factors, the seriousness of the violation,
previous treatment compliance, employment, education, vocational
training, medical conditions, medical treatment, including narcotics
replacement treatment, and including the opinion of the defendant's
licensed and treating physician if immediately available and
presented at the hearing, child support obligations, and family
responsibilities. The court shall consider additional conditions of
probation, which may include, but are not limited to, community
service and supervised work programs. If one of the circumstances of
the violation involves recent drug use, as well as other
circumstances of violation, and the circumstance of recent drug use
is demonstrated to the court by satisfactory evidence and a finding
made on the record, the court may, after receiving input from
treatment and probation, if available, direct the defendant to enter
a licensed detoxification or residential treatment facility, and if
there is no bed immediately available in such a facility, the court
may order that the defendant be confined in a county jail for
detoxification purposes only, if the jail offers detoxification
services, for a period not to exceed 10 days. The detoxification
services must provide narcotic replacement therapy for those
defendants presently actually receiving narcotic replacement therapy.
(E) If a defendant on probation at the effective date of this act
for a nonviolent drug possession offense violates that probation a
second time either by committing a nonviolent drug possession
offense, or a misdemeanor for simple possession or use of drugs or
drug paraphernalia, being present where drugs are used, or failure to
register as a drug offender, or any activity similar to those listed
in subdivision (d) of Section 1210, or by violating a drug-related
condition of probation, and the state moves for a second time to
revoke probation, the court shall conduct a hearing to determine
whether probation shall be revoked. The trial court shall revoke
probation if the alleged probation violation is proved and the state
proves by a preponderance of the evidence either that the defendant
poses a danger to the safety of others or that the defendant is
unamenable to drug treatment. If the court does not revoke probation,
it may modify or alter the treatment plan, and in addition, if the
violation does not involve the recent use of drugs as a circumstance
of the violation, including, but not limited to, violations relating
to failure to appear at treatment or court, noncompliance with
treatment, and failure to report for drug testing, the court may
impose sanctions including jail sanctions that may not exceed 120
hours of continuous custody as a tool to enhance treatment compliance
and impose other changes in the terms and conditions of probation.
The court shall consider, among other factors, the seriousness of the
violation, previous treatment compliance, employment, education,
vocational training, medical conditions, medical treatment including
narcotics replacement treatment, and including the opinion of the
defendant's licensed and treating physician if immediately available
and presented at the hearing, child support obligations, and family
responsibilities. The court shall consider additional conditions of
probation, which may include, but are not limited to, community
service and supervised work programs. If one of the circumstances of
the violation involves recent drug use, as well as other
circumstances of violation, and the circumstance of recent drug use
is demonstrated to the court by satisfactory evidence and a finding
made on the record, the court may, after receiving input from
treatment and probation, if available, direct the defendant to enter
a licensed detoxification or residential treatment facility, and if
there is no bed immediately available in such a facility, the court
may order that the defendant be confined in a county jail for
detoxification purposes only, if the jail offers detoxification
services, for a period not to exceed 10 days. The detoxification
services must provide narcotic replacement therapy for those
defendants presently actually receiving narcotic replacement therapy.
(F) If a defendant on probation at the effective date of this act
for a nonviolent drug offense violates that probation a third or
subsequent time either by committing a nonviolent drug possession
offense, or by violating a drug-related condition of probation, and
the state moves for a third or subsequent time to revoke probation,
the court shall conduct a hearing to determine whether probation
shall be revoked. If the alleged probation violation is proved, the
defendant is not eligible for continued probation under subdivision
(a), unless the court determines that the defendant is not a danger
to the community and would benefit from further treatment under
subdivision (a). The court may then either intensify or alter the
treatment plan under subdivision (a) or transfer the defendant to a
highly structured drug court. If the court continues the defendant in
treatment under subdivision (a), or drug court, the court may impose
appropriate sanctions including jail sanctions.
(g) The term "drug-related condition of probation" shall include a
probationer's specific drug treatment regimen, employment,
vocational training, educational programs, psychological counseling,
and family counseling.
SEC. 8. Section 3063.1 of the Penal Code is amended to read:
3063.1. (a) Notwithstanding any other provision of law, and
except as provided in subdivision (d), parole may not be suspended or
revoked for commission of a nonviolent drug possession offense or
for violating any drug-related condition of parole.
As an additional condition of parole for all such offenses or
violations, the Parole Authority shall require participation in and
completion of an appropriate drug treatment program. Vocational
training, family counseling and literacy training may be imposed as
additional parole conditions.
The Parole Authority may require any person on parole who commits
a nonviolent drug possession offense or violates any drug-related
condition of parole, and who is reasonably able to do so, to
contribute to the cost of his or her own placement in a drug
treatment program.
(b) Subdivision (a) does not apply to:
(1) Any parolee who has been convicted of one or more serious or
violent felonies in violation of subdivision (c) of Section 667.5 or
Section 1192.7.
(2) Any parolee who, while on parole, commits one or more
nonviolent drug possession offenses and is found to have concurrently
committed a misdemeanor not related to the use of drugs or any
felony.
(3) Any parolee who refuses drug treatment as a condition of
parole.
(c) Within seven days of a finding that the parolee has either
committed a nonviolent drug possession offense or violated any
drug-related condition of parole, the Department of Corrections and
Rehabilitation, Division of Adult Parole Operations shall notify the
treatment provider designated to provide drug treatment under
subdivision (a). Within 30 days thereafter the treatment provider
shall prepare an individualized drug treatment plan and forward it to
the Parole Authority and to the California Department of Corrections
and Rehabilitation, Division of Adult Parole Operations agent
responsible for supervising the parolee. On a quarterly basis after
the parolee begins drug treatment, the treatment provider shall
prepare and forward a progress report on the individual parolee to
these entities and individuals.
(1) If at any point during the course of drug treatment the
treatment provider notifies the Department of Corrections and
Rehabilitation, Division of Adult Parole Operations that the parolee
is unamenable to the drug treatment provided, but amenable to other
drug treatments or related programs, the Department of Corrections
and Rehabilitation, Division of Adult Parole Operations may act to
modify the terms of parole to ensure that the parolee receives the
alternative drug treatment or program.
(2) If at any point during the course of drug treatment the
treatment provider notifies the Department of Corrections and
Rehabilitation, Division of Adult Parole Operations that the parolee
is unamenable to the drug treatment provided and all other forms of
drug treatment provided pursuant to subdivision (b) of Section 1210
and the amenability factors described in subparagraph (B) of
paragraph (3) of subdivision (e) of Section 1210.1, the Department of
Corrections and Rehabilitation, Division of Adult Parole Operations
may act to revoke parole. At the revocation hearing, parole may be
revoked if it is proved that the parolee is unamenable to all drug
treatment.
(3) Drug treatment services provided by subdivision (a) as a
required condition of parole may not exceed 12 months, unless the
Department of Corrections and Rehabilitation, Division of Adult
Parole Operations makes a finding supported by the record that the
continuation of treatment services beyond 12 months is necessary for
drug treatment to be successful. If that finding is made, the
Department of Corrections and Rehabilitation, Division of Adult
Parole Operations may order up to two six-month extensions of
treatment services. The provision of treatment services under this
act shall not exceed 24 months.
(d) (1) If parole is revoked pursuant to the provisions of this
subdivision, the defendant may be incarcerated pursuant to otherwise
applicable law without regard to the provisions of this section.
Parole shall be revoked if the parole violation is proved and a
preponderance of the evidence establishes that the parolee poses a
danger to the safety of others.
(2) If a parolee receives drug treatment under subdivision (a),
and during the course of drug treatment violates parole either by
committing an offense other than a nonviolent drug possession
offense, or by violating a non-drug-related condition of parole, and
the Department of Corrections and Rehabilitation, Division of Adult
Parole Operations acts to revoke parole, a hearing shall be conducted
to determine whether parole shall be revoked.
Parole may be modified or revoked if the parole violation is
proved.
(3) (A) If a parolee receives drug treatment under subdivision
(a), and during the course of drug treatment violates parole either
by committing a nonviolent drug possession offense, or a misdemeanor
for simple possession or use of drugs or drug paraphernalia, being
present where drugs are used, or failure to register as a drug
offender, or any activity similar to those listed in subdivision (d)
of Section 1210, or by violating a drug-related condition of parole,
and the Department of Corrections and Rehabilitation, Division of
Adult Parole Operations acts to revoke parole, a hearing shall be
conducted to determine whether parole shall be revoked. Parole shall
be revoked if the parole violation is proved and a preponderance of
the evidence establishes that the parolee poses a danger to the
safety of others. If parole is not revoked, the conditions of parole
may be intensified to achieve the goals of drug treatment.
(B) If a parolee receives drug treatment under subdivision (a),
and during the course of drug treatment for the second time violates
that parole either by committing a nonviolent drug possession
offense, or by violating a drug-related condition of parole, and the
Department of Corrections and Rehabilitation, Division of Adult
Parole Operations acts for a second time to revoke parole, a hearing
shall be conducted to determine whether parole shall be revoked. If
the alleged parole violation is proved, the parolee is not eligible
for continued parole under any provision of this section and may be
reincarcerated.
(C) If a parolee already on parole at the effective date of this
act violates that parole either by committing a nonviolent drug
possession offense, or a misdemeanor for simple possession or use of
drugs or drug paraphernalia, being present where drugs are used, or
failure to register as a drug offender, or any activity similar to
those listed in paragraph (1) of subdivision (d) of Section 1210, or
by violating a drug-related condition of parole, and the Department
of Corrections and Rehabilitation, Division of Adult Parole
Operations acts to revoke parole, a hearing shall be conducted to
determine whether parole shall be revoked. Parole shall be revoked if
the parole violation is proved and a preponderance of the evidence
establishes that the parolee poses a danger to the safety of others.
If parole is not revoked, the conditions of parole may be modified to
include participation in a drug treatment program as provided in
subdivision (a). This paragraph does not apply to any parolee who at
the effective date of this act has been convicted of one or more
serious or violent felonies in violation of subdivision (c) of
Section 667.5 or Section 1192.7.
(D) If a parolee already on parole at the effective date of this
act violates that parole for the second time either by committing a
nonviolent drug possession offense, or by violating a drug-related
condition of parole, and the parole authority acts for a second time
to revoke parole, a hearing shall be conducted to determine whether
parole shall be revoked. If the alleged parole violation is proved,
the parolee may be reincarcerated or the conditions of parole may be
intensified to achieve the goals of drug treatment.
(e) The term "drug-related condition of parole" shall include a
parolee's specific drug treatment regimen, and, if ordered by the
Department of Corrections and Rehabilitation, Division of Adult
Parole Operations pursuant to this section, employment, vocational
training, educational programs, psychological counseling, and family
counseling.
SEC. 9. The provisions of this bill shall be applied
prospectively. If any provision of this bill is found to be invalid,
the entire legislative measure shall be submitted to the voters at
the next statewide election.
SEC. 10. The Legislature finds and declares that the provisions of
this act are consistent with the purposes of the Substance Abuse and
Crime Prevention Act of 2000.
SEC. 11. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
SEC. 12. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
In order to ensure that the essential services provided under the
Substance Abuse and Crime Prevention Act of 2000 continue to be
provided without interruption, it is necessary that this bill go into
immediate effect.