BILL REQ. #:  H-1574.2 

Read first time 02/15/2005.   Referred to Committee on Criminal Justice & Corrections.

     AN ACT Relating to judicially supervised substance abuse treatment; amending RCW 9.94A.640, 9.94A.737, and 9.94A.501; reenacting and amending RCW 9.94A.660; creating a new section; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 9.94A.660 and 2002 c 290 s 20 and 2002 c 175 s 10 are each reenacted and amended to read as follows:
     (1) An offender is eligible for the special drug offender sentencing alternative if:
     (a) The offender is convicted of a felony that is not a violent offense or sex offense and the violation does not involve a sentence enhancement under RCW 9.94A.533 (3) or (4);
     (b) The offender has no current or prior convictions for:
     (i) A sex offense ((or violent offense)) in this state, another state, or the United States; or
     (ii) A serious violent offense, other than assault in the third degree, in this state, another state, or the United States, within ten years of the date of conviction for the current offense;
     (c) ((For a violation of the Uniform Controlled Substances Act under chapter 69.50 RCW or a criminal solicitation to commit such a violation under chapter 9A.28 RCW, the offense involved only a small quantity of the particular controlled substance as determined by the judge upon consideration of such factors as the weight, purity, packaging, sale price, and street value of the controlled substance)) The standard sentence range for the current offense is greater than one year; and
     (d) The offender has not been found by the United States attorney general to be subject to a deportation detainer or order and does not become subject to a deportation order during the period of the sentence.
     (2) A motion for a sentence under this section may be made by the court, the offender, or the state. If ((the standard sentence range is greater than one year and)) the sentencing court determines that the offender is eligible for this alternative ((and that)), the court may order an examination of the offender. The examination shall, at a minimum, address the following issues:
     (a) Whether the offender suffers from drug addiction;
     (b) Whether the addiction is such that there is a probability that criminal behavior will occur in the future;
     (c) Whether effective treatment for the offender's addiction is available from a provider that has been licensed or certified by the division of alcohol and substance abuse of the department of social and health services; and
     (d) Whether the offender and the community will benefit from the use of the alternative((, the judge may waive imposition of a sentence within the standard sentence range and impose a sentence that must include a period of total confinement in a state facility for one-half of the midpoint of the standard sentence range)).
     (3) The examination report must contain:
     (a) Information on the issues required to be addressed in subsection (2) of this section; and
     (b) A proposed treatment plan that must, at a minimum, contain:
     (i) A proposed treatment provider that has been licensed or certified by the division of alcohol and substance abuse of the department of social and health services;
     (ii) The recommended frequency and length of treatment, including both residential chemical dependency treatment and treatment in the community;
     (iii) A proposed monitoring plan, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members and others; and
     (iv) Recommended crime-related prohibitions and affirmative conditions.
     (4) After receipt of the examination report, if the court determines that a sentence under this section is appropriate:
     (a) The court shall:
     (i) Impose a term of confinement in a state facility for at least ninety days, but no more than one-half of the midpoint of the standard range. The court may order that any or all of the term of confinement imposed under this subsection be served in a community-based residential chemical dependency treatment facility licensed or certified by the division of alcohol and substance abuse of the department of social and health services. During ((incarceration)) any term of confinement served in ((the)) a state facility, offenders sentenced under this subsection shall undergo a comprehensive substance abuse assessment and receive, within available resources, treatment services appropriate for the offender. The treatment services shall be designed by the division of alcohol and substance abuse of the department of social and health services, in cooperation with the department of corrections. An offender serving a term of confinement or residential chemical dependency treatment under this subsection is not eligible for earned release credits under RCW 9.94A.728;
     ((The court shall also impose:
     (a) The remainder of the midpoint of the standard range as a term of community custody which must include)) (ii) Require the offender, after the term of confinement or residential chemical dependency treatment, to complete appropriate inpatient or outpatient substance abuse treatment in ((a program that has been approved)) the community. The treatment program must be licensed or certified by the division of alcohol and substance abuse of the department of social and health services;
     (((b))) (iii) Impose crime-related prohibitions and affirmative conditions including a condition not to use illegal controlled substances;
     (((c))) (iv) Impose a requirement to submit to urinalysis or other testing to monitor that ((status)) the offender is not using illegal controlled substances or any other substances prohibited by the court. The court may require that the monitoring be conducted by the department, by a treatment alternatives to street crime program, or by a comparable court or agency-referred program. The court may require the offender to pay thirty dollars per month to offset the cost of monitoring; ((and
     (d))) (v) Impose a term of community custody ((pursuant to RCW 9.94A.715 to be imposed upon failure to complete or administrative termination from the special drug offender sentencing alternative program.
     The court may prohibit the offender from using alcohol or controlled substances and may require that the monitoring for controlled substances be conducted by the department or by a treatment alternatives to street crime program or a comparable court or agency-referred program. The offender may be required to pay thirty dollars per month while on community custody to offset the cost of monitoring)) for the maximum of the standard sentence range or two years, whichever is greater. The conditions of the community custody shall include the conditions imposed under this section and conditions imposed by the department under RCW 9.94A.720; and
     (vi) Schedule a treatment termination hearing for three months prior to the anticipated completion of treatment.
     (b) In addition, the court ((shall)) may impose ((three or more)) any of the following conditions:
     (i) Devote time to a specific employment or training;
     (ii) Remain within prescribed geographical boundaries and notify the court or the community corrections officer before any change in the offender's address or employment;
     (iii) Report as directed to a community corrections officer;
     (iv) Pay all court-ordered legal financial obligations;
     (v) Perform community restitution work;
     (vi) Stay out of areas designated by the sentencing court;
     (vii) Such other conditions as the court may require such as affirmative conditions.
     (((3))) (5) The department and the treatment provider shall submit quarterly reports to the court on the offender's progress in treatment and in the community. The report shall, at a minimum, include: Dates of attendance at treatment, the offender's compliance with the conditions of the sentence, treatment activities, the offender's progress in treatment, and any other material specified by the court at sentencing.
     (6)(a) Prior to the treatment termination hearing, the treatment provider and the department shall submit written reports to the court and parties regarding the offender's compliance with treatment and monitoring requirements, and recommendations regarding termination from treatment.
     (b) At the treatment termination hearing, the court may:
     (i) Modify the conditions of the community custody;
     (ii) Terminate treatment; or
     (iii) Extend treatment for up to the remaining period of community custody.
     (7) If the offender violates any of the sentence conditions ((in subsection (2) of this section)) or is found by the United States attorney general to be subject to a deportation order, a violation hearing shall be held by the department unless waived by the offender.
     (a) If the department finds that conditions have been willfully violated, the ((offender may be reclassified to serve the remaining balance of the original sentence)) department may impose sanctions under RCW 9.94A.737(2)(e).
     (b) If the department finds that the offender is subject to a valid deportation order, the department ((may administratively terminate the offender from the program and reclassify the offender to serve the remaining balance of the original sentence.
     (4) The department shall determine the rules for calculating the value of a day fine based on the offender's income and reasonable obligations which the offender has for the support of the offender and any dependents. These rules shall be developed in consultation with the administrator for the courts, the office of financial management, and the commission.
     (5) An offender who fails to complete the special drug offender sentencing alternative program or who is administratively terminated from the program shall be reclassified to serve the unexpired term of his or her sentence as ordered by the sentencing court and shall be subject to all rules relating to earned release time. An offender who violates any conditions of supervision as defined by the department shall be sanctioned. Sanctions may include, but are not limited to, reclassifying the offender to serve the unexpired term of his or her sentence as ordered by the sentencing court. If an offender is reclassified to serve the unexpired term of his or her sentence, the offender shall be subject to all rules relating to earned release time)) shall refer the offender to the court.
     (8) The court may bring the offender back into court at any time on its own initiative to evaluate the offender's progress in treatment or to determine if any violations of the conditions of the sentence have occurred.
     (9) If the offender is brought back to court under subsection (7) or (8) of this section, the court may modify the terms of the community custody or impose sanctions under subsection (10) of this section.
     (10) The court may order the offender to serve a term of total confinement within the standard range of the offender's current offense at any time during the period of community custody if the offender violates the conditions of the sentence, if the offender is subject to a valid deportation order, or if the court finds that the offender is failing to make satisfactory progress in treatment. Once an offender has served a term of confinement imposed under this subsection, he or she shall be deemed to have completed his or her sentence under this section.
     (11) If an offender completes the sentence imposed under this section without being subject to total confinement under subsection (10) of this section, the department shall notify the court. After receiving notification from the department under this subsection, the court shall vacate the record of conviction under RCW 9.94A.640(3) for an offender who successfully complies with all of the conditions of the sentence imposed under this section, unless the court has ordered the offender to serve a term of total confinement under subsection (10) of this section, in which case the offender's conviction may only be vacated under RCW 9.94A.640 (1) and (2).

Sec. 2   RCW 9.94A.640 and 1987 c 486 s 7 are each amended to read as follows:
     (1) Every offender who has been discharged under RCW 9.94A.637 may apply to the sentencing court for a vacation of the offender's record of conviction. If the court finds the offender meets the tests prescribed in subsection (2) of this section, the court may clear the record of conviction by: (a) Permitting the offender to withdraw the offender's plea of guilty and to enter a plea of not guilty; or (b) if the offender has been convicted after a plea of not guilty, by the court setting aside the verdict of guilty; and (c) by the court dismissing the information or indictment against the offender.
     (2) An offender may not have the record of conviction cleared if: (a) There are any criminal charges against the offender pending in any court of this state or another state, or in any federal court; (b) the offense was a violent offense as defined in RCW 9.94A.030; (c) the offense was a crime against persons as defined in RCW 43.43.830; (d) the offender has been convicted of a new crime in this state, another state, or federal court since the date of the offender's discharge under RCW 9.94A.637; (e) the offense is a class B felony and less than ten years have passed since the date the applicant was discharged under RCW 9.94A.637; and (f) the offense was a class C felony and less than five years have passed since the date the applicant was discharged under RCW 9.94A.637.
     (3) Notwithstanding subsections (1) and (2) of this section, an offender who successfully complies with all the conditions of a sentence imposed under RCW 9.94A.660 shall have the record of the conviction sentenced under RCW 9.94A.660 automatically vacated, unless the court has ordered the offender to serve a term of confinement under RCW 9.94A.660(10), in which case the offender's conviction may only be vacated under subsections (1) and (2) of this section.
     (4) Once the court vacates a record of conviction under subsection (1) of this section, the fact that the offender has been convicted of the offense shall not be included in the offender's criminal history for purposes of determining a sentence in any subsequent conviction, and the offender shall be released from all penalties and disabilities resulting from the offense. For all purposes, including responding to questions on employment applications, an offender whose conviction has been vacated may state that the offender has never been convicted of that crime. Nothing in this section affects or prevents the use of an offender's prior conviction in a later criminal prosecution.

Sec. 3   RCW 9.94A.737 and 2002 c 175 s 15 are each amended to read as follows:
     (1) If an offender violates any condition or requirement of community custody, the department may transfer the offender to a more restrictive confinement status to serve up to the remaining portion of the sentence, less credit for any period actually spent in community custody or in detention awaiting disposition of an alleged violation and subject to the limitations of subsection (2) of this section.
     (2)(a) For a sex offender sentenced to a term of community custody under RCW 9.94A.670 who violates any condition of community custody, the department may impose a sanction of up to sixty days' confinement in a local correctional facility for each violation. If the department imposes a sanction, the department shall submit within seventy-two hours a report to the court and the prosecuting attorney outlining the violation or violations and the sanctions imposed.
     (b) For a sex offender sentenced to a term of community custody under RCW 9.94A.710 who violates any condition of community custody after having completed his or her maximum term of total confinement, including time served on community custody in lieu of earned release, the department may impose a sanction of up to sixty days in a local correctional facility for each violation.
     (c) For an offender sentenced to a term of community custody under RCW 9.94A.505(2)(b), 9.94A.650, or 9.94A.715, or under RCW 9.94A.545, for a crime committed on or after July 1, 2000, who violates any condition of community custody after having completed his or her maximum term of total confinement, including time served on community custody in lieu of earned release, the department may impose a sanction of up to sixty days in total confinement for each violation. The department may impose sanctions such as work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, or any other sanctions available in the community.
     (d) For an offender sentenced to a term of community placement under RCW 9.94A.705 who violates any condition of community placement after having completed his or her maximum term of total confinement, including time served on community custody in lieu of earned release, the department may impose a sanction of up to sixty days in total confinement for each violation. The department may impose sanctions such as work release, home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through electronic monitoring, or any other sanctions available in the community.
     (e) For an offender sentenced to a term of community custody under RCW 9.94A.660 who violates any condition of community custody, the department may impose a sanction of up to sixty days' confinement in a local correctional facility for each violation. If the department imposes a sanction, the department shall submit within seventy-two hours a report to the court and the prosecuting attorney outlining the violation or violations and the sanctions imposed.
     (3) If an offender is accused of violating any condition or requirement of community custody, he or she is entitled to a hearing before the department prior to the imposition of sanctions. The hearing shall be considered as offender disciplinary proceedings and shall not be subject to chapter 34.05 RCW. The department shall develop hearing procedures and a structure of graduated sanctions.
     (4) The hearing procedures required under subsection (3) of this section shall be developed by rule and include the following:
     (a) Hearing officers shall report through a chain of command separate from that of community corrections officers;
     (b) The department shall provide the offender with written notice of the violation, the evidence relied upon, and the reasons the particular sanction was imposed. The notice shall include a statement of the rights specified in this subsection, and the offender's right to file a personal restraint petition under court rules after the final decision of the department;
     (c) The hearing shall be held unless waived by the offender, and shall be electronically recorded. For offenders not in total confinement, the hearing shall be held within fifteen working days, but not less than twenty-four hours, after notice of the violation. For offenders in total confinement, the hearing shall be held within five working days, but not less than twenty-four hours, after notice of the violation;
     (d) The offender shall have the right to: (i) Be present at the hearing; (ii) have the assistance of a person qualified to assist the offender in the hearing, appointed by the hearing officer if the offender has a language or communications barrier; (iii) testify or remain silent; (iv) call witnesses and present documentary evidence; and (v) question witnesses who appear and testify; and
     (e) The sanction shall take effect if affirmed by the hearing officer. Within seven days after the hearing officer's decision, the offender may appeal the decision to a panel of three reviewing officers designated by the secretary or by the secretary's designee. The sanction shall be reversed or modified if a majority of the panel finds that the sanction was not reasonably related to any of the following: (i) The crime of conviction; (ii) the violation committed; (iii) the offender's risk of reoffending; or (iv) the safety of the community.
     (5) For purposes of this section, no finding of a violation of conditions may be based on unconfirmed or unconfirmable allegations.

Sec. 4   RCW 9.94A.501 and 2003 c 379 s 3 are each amended to read as follows:
     (1) When the department performs a risk assessment pursuant to RCW 9.94A.500, or to determine a person's conditions of supervision, the risk assessment shall classify the offender into one of at least four risk categories.
     (2) The department shall supervise every offender sentenced to a term of community custody, community placement, or community supervision:
     (a) Whose risk assessment places that offender in one of the two highest risk categories; or
     (b) Regardless of the offender's risk category if:
     (i) The offender's current conviction is for:
     (A) A sex offense;
     (B) A violent offense;
     (C) A crime against persons as defined in RCW 9.94A.411;
     (D) A felony that is domestic violence as defined in RCW 10.99.020;
     (E) A violation of RCW 9A.52.025 (residential burglary);
     (F) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine; or
     (G) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor);
     (ii) The offender has a prior conviction for:
     (A) A sex offense;
     (B) A violent offense;
     (C) A crime against persons as defined in RCW 9.94A.411;
     (D) A felony that is domestic violence as defined in RCW 10.99.020;
     (E) A violation of RCW 9A.52.025 (residential burglary);
     (F) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine; or
     (G) A violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor);
     (iii) The conditions of the offender's community custody, community placement, or community supervision include chemical dependency treatment, including conditions imposed pursuant to a sentence under RCW 9.94A.660;
     (iv) The offender was sentenced under RCW 9.94A.650 or 9.94A.670; or
     (v) The offender is subject to supervision pursuant to RCW 9.94A.745.
     (3) The department is not authorized to, and may not, supervise any offender sentenced to a term of community custody, community placement, or community supervision unless the offender is one for whom supervision is required under subsection (2) of this section.
     (4) This section expires July 1, 2010.

NEW SECTION.  Sec. 5   This act applies prospectively only and not retroactively. It applies only to crimes committed on or after the effective date of this act.

NEW SECTION.  Sec. 6   This act takes effect October 1, 2005.