BILL REQ. #:  S-1591.1 

READ FIRST TIME 02/23/09.   

     AN ACT Relating to drug offense sentencing alternative sentencing provisions; amending RCW 9.94A.660; reenacting and amending RCW 9.94A.660; adding new sections to chapter 9.94A RCW; providing an effective date; providing an expiration date; and declaring an emergency.

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

Sec. 1   RCW 9.94A.660 and 2006 c 339 s 302 and 2006 c 73 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 is convicted of a felony that is not a felony driving while under the influence of intoxicating liquor or any drug under RCW 46.61.502(6) or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug under RCW 46.61.504(6);
     (c) The offender has no current or prior convictions for a sex offense at any time or violent offense within ten years before conviction of the current offense, in this state, another state, or the United States;
     (d) 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;
     (e) 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;
     (f) The standard sentence range for the current offense is greater than one year; and
     (g) The offender has not received a drug offender sentencing alternative more than once in the prior ten years before the current offense.
     (2) A motion for a sentence under this section may be made by the court, the offender, or the state. ((If the sentencing court determines that the offender is eligible for this alternative, 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.
     (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,)) (3) If the sentencing court determines that the offender is eligible for this alternative and that a sentence under this section is appropriate, the court shall waive imposition of a sentence within the standard sentence range and impose a sentence consisting of either a prison-based alternative under subsection (((5))) (4) of this section or a residential chemical dependency treatment-based alternative under subsection (((6))) (5) of this section. If the court is considering the residential chemical dependency treatment-based alternative under subsection (5) of this section, then the court may order an examination of the offender as described in subsection (5) of this section. The residential chemical dependency treatment-based alternative is only available if the midpoint of the standard range is twenty-four months or less.
     (((5))) (4) The prison-based alternative shall include:
     (a) A period of total confinement in a state facility for one-half of the midpoint of the standard sentence range or twelve months, whichever is greater. During incarceration in the 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;
     (b) ((The remainder of)) One-half the midpoint of the standard range as a term of community custody which must include appropriate substance abuse treatment in a program that has been approved by the division of alcohol and substance abuse of the department of social and health services. If the department finds that conditions have been willfully violated, the offender may be reclassified to serve the remaining balance of the original sentence. An offender who fails to complete the 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;
     (c) Crime-related prohibitions including a condition not to use illegal controlled substances;
     (d) A requirement to submit to urinalysis or other testing to monitor that status; and
     (e) 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.
     (((6))) (5)(a) If the court is considering imposing a sentence under the residential chemical dependency treatment-based alternative in this subsection, then the court may order an examination of the offender. The examination shall, at a minimum, address the following issues:
     (i) Whether the offender suffers from drug addiction;
     (ii) Whether the addiction is such that there is a probability that criminal behavior will occur in the future;
     (iii) 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
     (iv) Whether the offender and the community will benefit from the use of the alternative.
     (b) The examination report must also contain:
     (i) A proposed monitoring plan, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members and others; and
     (ii) Recommended crime-related prohibitions and affirmative conditions.
     (c) The residential chemical dependency treatment-based alternative shall include:
     (((a))) (i) A term of community custody equal to one-half of the midpoint of the standard sentence range or two years, whichever is greater, conditioned on the offender entering and remaining in residential chemical dependency treatment certified under chapter 70.96A RCW for a period set by the court between three and six months. If the court imposes a term of community custody, the department shall, within available resources, make chemical dependency assessment and treatment services available to the offender during the term of community custody. The court shall impose, as conditions of community custody, treatment and other conditions as proposed in the plan under ((subsection (3)))(b) of this ((section)) subsection. The department may impose conditions and sanctions as authorized in RCW 9.94A.715 (2), (3), (6), and (7), 9.94A.737, and 9.94A.740. If the court imposes a sentence under this subsection, then the treatment provider will be required to send the treatment plan to the court within thirty days of the offender's arrival to the residential chemical dependency treatment program. The court shall schedule a progress hearing during the period of residential chemical dependency treatment, and schedule a treatment termination hearing for three months before the expiration of the term of community custody;
     (((b))) (ii) Before the progress hearing and 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. At the hearing, the court may:
     (((i))) (A) Authorize the department to terminate the offender's community custody status on the expiration date determined under (((a) of this)) subsection (5)(c)(i) of this section; or
     (((ii))) (B) Continue the hearing to a date before the expiration date of community custody, with or without modifying the conditions of community custody; or
     (((iii))) (C) Impose a term of total confinement equal to one-half the midpoint of the standard sentence range, followed by a term of community custody under RCW 9.94A.715;
     (((c))) (iii) If the court imposes a term of total confinement under (((b)(iii))) (c)(ii) of this subsection, the department shall, within available resources, make chemical dependency assessment and treatment services available to the offender during the terms of total confinement and community custody.
     (((7))) (6) If the court imposes a sentence under this section, 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. In addition, the court may impose any of the following conditions:
     (a) Devote time to a specific employment or training;
     (b) Remain within prescribed geographical boundaries and notify the court or the community corrections officer before any change in the offender's address or employment;
     (c) Report as directed to a community corrections officer;
     (d) Pay all court-ordered legal financial obligations;
     (e) Perform community restitution work;
     (f) Stay out of areas designated by the sentencing court;
     (g) Such other conditions as the court may require such as affirmative conditions.
     (((8))) (7)(a) The court may bring any offender sentenced under this section 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.
     (b) If the offender is brought back to court, the court may modify the terms of the community custody or impose sanctions under (c) of this subsection.
     (c) 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 or if the offender is failing to make satisfactory progress in treatment.
     (d) An offender ordered to serve a term of total confinement under (c) of this subsection shall receive credit for any time previously served under this section.
     (((9))) (8) If an offender sentenced to the prison-based alternative under subsection (((5))) (4) of this section is found by the United States attorney general to be subject to a deportation order, a hearing shall be held by the department unless waived by the offender, and, 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.
     (((10))) (9) An offender sentenced under this section shall be subject to all rules relating to earned release time with respect to any period served in total confinement.
     (((11))) (10) Costs of examinations and preparing treatment plans under ((subsections (2) and (3) of)) this section may be paid, at the option of the county, from funds provided to the county from the criminal justice treatment account under RCW 70.96A.350.

Sec. 2   RCW 9.94A.660 and 2008 c 231 s 30 are each 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 is convicted of a felony that is not a felony driving while under the influence of intoxicating liquor or any drug under RCW 46.61.502(6) or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug under RCW 46.61.504(6);
     (c) The offender has no current or prior convictions for a sex offense at any time or violent offense within ten years before conviction of the current offense, in this state, another state, or the United States;
     (d) 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;
     (e) 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;
     (f) The standard sentence range for the current offense is greater than one year; and
     (g) The offender has not received a drug offender sentencing alternative more than once in the prior ten years before the current offense.
     (2) A motion for a ((sentence under this section)) special drug offender sentencing alternative may be made by the court, the offender, or the state.
     (3) If the sentencing court determines that the offender is eligible for ((this)) an alternative sentence under this section and that the alternative sentence is appropriate, the court shall waive imposition of a sentence within the standard sentence range and impose a sentence consisting of either a prison-based alternative under section 3 of this act or a residential chemical dependency treatment-based alternative under section 4 of this act. The residential chemical dependency treatment-based alternative is only available if the midpoint of the standard range is twenty-four months or less.
     (4)(a) If the court is considering imposing a sentence under the residential chemical dependency treatment-based alternative, the court may order an examination of the offender. The examination shall, at a minimum, address the following issues:
     (((a))) (i) Whether the offender suffers from drug addiction;
     (((b))) (ii) Whether the addiction is such that there is a probability that criminal behavior will occur in the future;
     (((c))) (iii) 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))) (iv) Whether the offender and the community will benefit from the use of the alternative.
     (((3))) (b) 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))) (i) A proposed monitoring plan, including any requirements regarding living conditions, lifestyle requirements, and monitoring by family members and others; and
     (((iv))) (ii) 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, the court shall waive imposition of a sentence within the standard sentence range and impose a sentence consisting of either a prison-based alternative under subsection (5) of this section or a residential chemical dependency treatment-based alternative under subsection (6) of this section. The residential chemical dependency treatment-based alternative is only available if the midpoint of the standard range is twenty-four months or less.
     (5) The prison-based alternative shall include:
     (a) A period of total confinement in a state facility for one-half of the midpoint of the standard sentence range or twelve months, whichever is greater. During incarceration in the 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;
     (b) The remainder of the midpoint of the standard range as a term of community custody which must include appropriate substance abuse treatment in a program that has been approved by the division of alcohol and substance abuse of the department of social and health services. If the department finds that conditions of community custody have been willfully violated, the offender may be reclassified to serve the remaining balance of the original sentence. An offender who fails to complete the 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;
     (c) Crime-related prohibitions including a condition not to use illegal controlled substances;
     (d) A requirement to submit to urinalysis or other testing to monitor that status; and
     (e) A term of community custody pursuant to RCW 9.94A.701 to be imposed upon failure to complete or administrative termination from the special drug offender sentencing alternative program.
     (6) The residential chemical dependency treatment-based alternative shall include:
     (a) A term of community custody equal to one-half of the midpoint of the standard sentence range or two years, whichever is greater, conditioned on the offender entering and remaining in residential chemical dependency treatment certified under chapter 70.96A RCW for a period set by the court between three and six months. If the court imposes a term of community custody, the department shall, within available resources, make chemical dependency assessment and treatment services available to the offender during the term of community custody. The court shall impose, as conditions of community custody, treatment and other conditions as proposed in the plan under subsection (3)(b) of this section. The court shall schedule a progress hearing during the period of residential chemical dependency treatment, and schedule a treatment termination hearing for three months before the expiration of the term of community custody;
     (b) Before the progress hearing and 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. At the hearing, the court may:
     (i) Authorize the department to terminate the offender's community custody status on the expiration date determined under (a) of this subsection; or
     (ii) Continue the hearing to a date before the expiration date of community custody, with or without modifying the conditions of community custody; or
     (iii) Impose a term of total confinement equal to one-half the midpoint of the standard sentence range, followed by a term of community custody under RCW 9.94A.701;
     (c) If the court imposes a term of total confinement under (b)(iii) of this subsection, the department shall, within available resources, make chemical dependency assessment and treatment services available to the offender during the terms of total confinement and community custody.
     (7) The)) (5) When a court imposes a sentence of community custody under this section:
     (a) The court may impose conditions as provided in RCW 9.94A.703 and may impose other affirmative conditions as the court considers appropriate. In addition, an offender may be required to pay thirty dollars per month while on community custody to offset the cost of monitoring for alcohol or controlled substances.
     (((8) The court may impose any of the following conditions:
     (a) Pay all court-ordered legal financial obligations; or
     (b) Perform community restitution work.
     (9)(a))) (b) The department may impose conditions and sanctions as authorized in RCW 9.94A.704 and RCW 9.94A.737.
     (6)(a) The court may bring any offender sentenced under this section 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.
     (b) If the offender is brought back to court, the court may modify the conditions of the community custody or impose sanctions under (c) of this subsection.
     (c) 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 or requirements of the sentence or if the offender is failing to make satisfactory progress in treatment.
     (d) An offender ordered to serve a term of total confinement under (c) of this subsection shall receive credit for any time previously served under this section.
     (((10))) (7) In serving a term of community custody imposed upon failure to complete, or administrative termination from, the special drug offender sentencing alternative program, the offender shall receive no credit for time served in community custody prior to termination of the offender's participation in the program.
     (((11) If an offender sentenced to the prison-based alternative under subsection (5) of this section is found by the United States attorney general to be subject to a deportation order, a hearing shall be held by the department unless waived by the offender, and, 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.
     (12))) (8) An offender sentenced under this section shall be subject to all rules relating to earned release time with respect to any period served in total confinement.
     (((13))) (9) Costs of examinations and preparing treatment plans under ((subsections (2) and (3) of this section)) a special drug offender sentencing alternative may be paid, at the option of the county, from funds provided to the county from the criminal justice treatment account under RCW 70.96A.350.

NEW SECTION.  Sec. 3   (1) A sentence for a prison-based special drug offender sentencing alternative shall include:
     (a) A period of total confinement in a state facility for one-half the midpoint of the standard sentence range or twelve months, whichever is greater;
     (b) One-half the midpoint of the standard sentence range as a term of community custody, which must include appropriate substance abuse treatment in a program that has been approved by the division of alcohol and substance abuse of the department of social and health services;
     (c) Crime-related prohibitions, including a condition not to use illegal controlled substances;
     (d) A requirement to submit to urinalysis or other testing to monitor that status; and
     (e) A term of community custody pursuant to RCW 9.94A.701 to be imposed upon the failure to complete or administrative termination from the special drug offender sentencing alternative program.
     (2) During incarceration in the state facility, offenders sentenced under this section 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.
     (3) If the department finds that conditions of community custody have been willfully violated, the offender may be reclassified to serve the remaining balance of the original sentence. An offender who fails to complete the 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.
     (4) If an offender sentenced to the prison-based alternative under this section is found by the United States attorney general to be subject to a deportation order, a hearing shall be held by the department unless waived by the offender, and, 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.

NEW SECTION.  Sec. 4   (1) A sentence for a residential chemical dependency treatment-based alternative shall include a term of community custody equal to one-half the midpoint of the standard sentence range or two years, whichever is greater, conditioned on the offender entering and remaining in residential chemical dependency treatment certified under chapter 70.96A RCW for a period set by the court between three and six months.
     (2)(a) The court shall impose, as conditions of community custody, treatment and other conditions as proposed in the examination report completed pursuant to RCW 9.94A.660.
     (b) If the court imposes a term of community custody, the department shall, within available resources, make chemical dependency assessment and treatment services available to the offender during the term of community custody.
     (3)(a) If the court imposes a sentence under this section, the treatment provider must send the treatment plan to the court within thirty days of the offender's arrival to the residential chemical dependency treatment program.
     (b) Upon receipt of the plan, the court shall schedule a progress hearing during the period of residential chemical dependency treatment, and schedule a treatment termination hearing for three months before the expiration of the term of community custody;
     (c) Before the progress hearing and 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.
     (4) At a progress hearing or treatment termination hearing, the court may:
     (a) Authorize the department to terminate the offender's community custody status on the expiration date determined under subsection (1) of this section;
     (b) Continue the hearing to a date before the expiration date of community custody, with or without modifying the conditions of community custody; or
     (c) Impose a term of total confinement equal to one-half the midpoint of the standard sentence range, followed by a term of community custody under RCW 9.94A.701.
     (5) If the court imposes a term of total confinement, the department shall, within available resources, make chemical dependency assessment and treatment services available to the offender during the term of total confinement and subsequent term of community custody.

NEW SECTION.  Sec. 5   Sections 3 and 4 of this act are each added to chapter 9.94A RCW.

NEW SECTION.  Sec. 6   Section 1 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.

NEW SECTION.  Sec. 7   Sections 2 through 4 of this act take effect August 1, 2009.

NEW SECTION.  Sec. 8   Section 1 of this act expires August 1, 2009.