BILL REQ. #:  H-3359.2 

Read first time 01/23/14.   Referred to Committee on Public Safety.

     AN ACT Relating to the arrest of individuals who suffer from chemical dependency; amending RCW 13.40.042 and 13.40.080; adding a new section to chapter 10.31 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature finds that the large number of individuals involved in the juvenile justice and criminal justice systems with substance abuse challenges is of significant concern. Access to effective treatment is critical to the successful treatment of individuals in the early stages of their contact with the juvenile justice and criminal justice systems. Such access may prevent further involvement in the systems. The effective use of substance abuse treatment options can result not only in significant cost savings for the juvenile justice and criminal justice systems, but can benefit the lives of individuals who face substance abuse challenges.

NEW SECTION.  Sec. 2   A new section is added to chapter 10.31 RCW to read as follows:
     (1) When a police officer has reasonable cause to believe that the individual:
     (a) Has committed acts constituting a nonfelony crime that is not a serious offense as identified in RCW 9.41.010;
     (b) Has not committed a possible violation of laws relating to driving or being in physical control of a vehicle while under the influence of intoxicating liquor or any drug under chapter 46.20 RCW; and
     (c) Is known by history or consultation with staff designated by the county to suffer from a chemical dependency, as defined in RCW 70.96A.020, the arresting officer may:
     (i) Take the individual to an approved chemical dependency treatment provider for treatment. The individual must be examined by a chemical dependency treatment provider within three hours of arrival;
     (ii) Take the individual to an emergency medical service customarily used for incapacitated persons, if no approved treatment program is readily available. The individual must be examined by a chemical dependency treatment provider within three hours of arrival;
     (iii) Refer the individual to a chemical dependency professional for initial detention and proceeding under chapter 70.96A RCW; or
     (iv) Release the individual upon agreement to voluntary participation in outpatient treatment.
     (2) If the individual is released to the community, the chemical dependency provider shall inform the arresting officer of the release within a reasonable period of time after the release if the arresting officer has specifically requested notification and provided contact information to the provider.
     (3) In deciding whether to refer the individual to treatment under this section, the police officer shall be guided by standards mutually agreed upon with the prosecuting authority, which address, at a minimum, the length, seriousness, and recency of the known criminal history of the individual, the mental health and substance abuse history of the individual, where available, and the circumstances surrounding the commission of the alleged offense.
     (4) Any agreement to participate in treatment shall not require individuals to stipulate to any of the alleged facts regarding the criminal activity as a prerequisite to participation in a chemical dependency treatment alternative. The agreement is inadmissible in any criminal or civil proceeding. The agreement does not create immunity from prosecution for the alleged criminal activity.
     (5) If an individual violates such agreement and the chemical dependency treatment alternative is no longer appropriate, the chemical dependency provider shall inform the referring law enforcement agency of the violation.
     (6) Nothing in this section may be construed as barring the referral of charges to the prosecuting attorney, or the filing of criminal charges by the prosecuting attorney.
     (7) The police officer, staff designated by the county, or treatment facility personnel are immune from liability for any good faith conduct under this section.

Sec. 3   RCW 13.40.042 and 2013 c 179 s 2 are each amended to read as follows:
     (1) When a police officer has reasonable cause to believe that a juvenile has committed acts constituting a nonfelony crime that is not a serious offense as identified in RCW 10.77.092, and the officer believes that the juvenile suffers from a mental disorder, and the local prosecutor has entered into an agreement with law enforcement regarding the detention of juveniles who may have a mental disorder or may be suffering from chemical dependency, the arresting officer, instead of taking the juvenile to the local juvenile detention facility, may take the juvenile to:
     (a) An evaluation and treatment facility as defined in RCW 71.34.020 if the juvenile suffers from a mental disorder and the facility has been identified as an alternative location by agreement of the prosecutor, law enforcement, and the mental health provider;
     (b) A facility or program identified by agreement of the prosecutor and law enforcement; or
     (c) A location already identified and in use by law enforcement for the purpose of ((mental)) a behavioral health diversion.
     (2) For the purposes of this section, an "alternative location" means a facility or program that has the capacity to evaluate a youth and, if determined to be appropriate, develop a behavioral health intervention plan and initiate treatment.
     (3) If a juvenile is taken to any location described in subsection (1)(a) or (b) of this section, the juvenile may be held for up to twelve hours and must be examined by a mental health or chemical dependency professional within three hours of arrival.
     (4) The authority provided pursuant to this section is in addition to existing authority under RCW 10.31.110 and section 2 of this act.

Sec. 4   RCW 13.40.080 and 2013 c 179 s 4 are each amended to read as follows:
     (1) A diversion agreement shall be a contract between a juvenile accused of an offense and a diversion unit whereby the juvenile agrees to fulfill certain conditions in lieu of prosecution. Such agreements may be entered into only after the prosecutor, or probation counselor pursuant to this chapter, has determined that probable cause exists to believe that a crime has been committed and that the juvenile committed it. Such agreements shall be entered into as expeditiously as possible.
     (2) A diversion agreement shall be limited to one or more of the following:
     (a) Community restitution not to exceed one hundred fifty hours, not to be performed during school hours if the juvenile is attending school;
     (b) Restitution limited to the amount of actual loss incurred by any victim;
     (c) Attendance at up to ten hours of counseling and/or up to twenty hours of educational or informational sessions at a community agency. The educational or informational sessions may include sessions relating to respect for self, others, and authority; victim awareness; accountability; self-worth; responsibility; work ethics; good citizenship; literacy; and life skills. If an assessment identifies mental health or chemical dependency needs, a youth may access up to thirty hours of counseling. The counseling sessions may include services demonstrated to improve behavioral health and reduce recidivism. For purposes of this section, "community agency" may also mean a community-based nonprofit organization, a physician, a counselor, a school, or a treatment provider, if approved by the diversion unit. The state shall not be liable for costs resulting from the diversion unit exercising the option to permit diversion agreements to mandate attendance at up to thirty hours of counseling and/or up to twenty hours of educational or informational sessions;
     (d) A fine, not to exceed one hundred dollars;
     (e) Requirements to remain during specified hours at home, school, or work, and restrictions on leaving or entering specified geographical areas; and
     (f) Upon request of any victim or witness, requirements to refrain from any contact with victims or witnesses of offenses committed by the juvenile.
     (3) Notwithstanding the provisions of subsection (2) of this section, youth courts are not limited to the conditions imposed by subsection (2) of this section in imposing sanctions on juveniles pursuant to RCW 13.40.630.
     (4) In assessing periods of community restitution to be performed and restitution to be paid by a juvenile who has entered into a diversion agreement, the court officer to whom this task is assigned shall consult with the juvenile's custodial parent or parents or guardian. To the extent possible, the court officer shall advise the victims of the juvenile offender of the diversion process, offer victim impact letter forms and restitution claim forms, and involve members of the community. Such members of the community shall meet with the juvenile and advise the court officer as to the terms of the diversion agreement and shall supervise the juvenile in carrying out its terms.
     (5)(a) A diversion agreement may not exceed a period of six months and may include a period extending beyond the eighteenth birthday of the divertee.
     (b) If additional time is necessary for the juvenile to complete restitution to a victim, the time period limitations of this subsection may be extended by an additional six months.
     (c) If the juvenile has not paid the full amount of restitution by the end of the additional six-month period, then the juvenile shall be referred to the juvenile court for entry of an order establishing the amount of restitution still owed to the victim. In this order, the court shall also determine the terms and conditions of the restitution, including a payment plan extending up to ten years if the court determines that the juvenile does not have the means to make full restitution over a shorter period. For the purposes of this subsection (5)(c), the juvenile shall remain under the court's jurisdiction for a maximum term of ten years after the juvenile's eighteenth birthday. Prior to the expiration of the initial ten-year period, the juvenile court may extend the judgment for restitution an additional ten years. The court may relieve the juvenile of the requirement to pay full or partial restitution if the juvenile reasonably satisfies the court that he or she does not have the means to make full or partial restitution and could not reasonably acquire the means to pay the restitution over a ten-year period. If the court relieves the juvenile of the requirement to pay full or partial restitution, the court may order an amount of community restitution that the court deems appropriate. The county clerk shall make disbursements to victims named in the order. The restitution to victims named in the order shall be paid prior to any payment for other penalties or monetary assessments. A juvenile under obligation to pay restitution may petition the court for modification of the restitution order.
     (6) The juvenile shall retain the right to be referred to the court at any time prior to the signing of the diversion agreement.
     (7) Divertees and potential divertees shall be afforded due process in all contacts with a diversion unit regardless of whether the juveniles are accepted for diversion or whether the diversion program is successfully completed. Such due process shall include, but not be limited to, the following:
     (a) A written diversion agreement shall be executed stating all conditions in clearly understandable language;
     (b) Violation of the terms of the agreement shall be the only grounds for termination;
     (c) No divertee may be terminated from a diversion program without being given a court hearing, which hearing shall be preceded by:
     (i) Written notice of alleged violations of the conditions of the diversion program; and
     (ii) Disclosure of all evidence to be offered against the divertee;
     (d) The hearing shall be conducted by the juvenile court and shall include:
     (i) Opportunity to be heard in person and to present evidence;
     (ii) The right to confront and cross-examine all adverse witnesses;
     (iii) A written statement by the court as to the evidence relied on and the reasons for termination, should that be the decision; and
     (iv) Demonstration by evidence that the divertee has substantially violated the terms of his or her diversion agreement;
     (e) The prosecutor may file an information on the offense for which the divertee was diverted:
     (i) In juvenile court if the divertee is under eighteen years of age; or
     (ii) In superior court or the appropriate court of limited jurisdiction if the divertee is eighteen years of age or older.
     (8) The diversion unit shall, subject to available funds, be responsible for providing interpreters when juveniles need interpreters to effectively communicate during diversion unit hearings or negotiations.
     (9) The diversion unit shall be responsible for advising a divertee of his or her rights as provided in this chapter.
     (10) The diversion unit may refer a juvenile to a restorative justice program, community-based counseling, or treatment programs.
     (11) The right to counsel shall inure prior to the initial interview for purposes of advising the juvenile as to whether he or she desires to participate in the diversion process or to appear in the juvenile court. The juvenile may be represented by counsel at any critical stage of the diversion process, including intake interviews and termination hearings. The juvenile shall be fully advised at the intake of his or her right to an attorney and of the relevant services an attorney can provide. For the purpose of this section, intake interviews mean all interviews regarding the diversion agreement process.
     The juvenile shall be advised that a diversion agreement shall constitute a part of the juvenile's criminal history as defined by RCW 13.40.020(7). A signed acknowledgment of such advisement shall be obtained from the juvenile, and the document shall be maintained by the diversion unit together with the diversion agreement, and a copy of both documents shall be delivered to the prosecutor if requested by the prosecutor. The supreme court shall promulgate rules setting forth the content of such advisement in simple language.
     (12) When a juvenile enters into a diversion agreement, the juvenile court may receive only the following information for dispositional purposes:
     (a) The fact that a charge or charges were made;
     (b) The fact that a diversion agreement was entered into;
     (c) The juvenile's obligations under such agreement;
     (d) Whether the alleged offender performed his or her obligations under such agreement; and
     (e) The facts of the alleged offense.
     (13) A diversion unit may refuse to enter into a diversion agreement with a juvenile. When a diversion unit refuses to enter a diversion agreement with a juvenile, it shall immediately refer such juvenile to the court for action and shall forward to the court the criminal complaint and a detailed statement of its reasons for refusing to enter into a diversion agreement. The diversion unit shall also immediately refer the case to the prosecuting attorney for action if such juvenile violates the terms of the diversion agreement.
     (14) A diversion unit may, in instances where it determines that the act or omission of an act for which a juvenile has been referred to it involved no victim, or where it determines that the juvenile referred to it has no prior criminal history and is alleged to have committed an illegal act involving no threat of or instance of actual physical harm and involving not more than fifty dollars in property loss or damage and that there is no loss outstanding to the person or firm suffering such damage or loss, counsel and release or release such a juvenile without entering into a diversion agreement. A diversion unit's authority to counsel and release a juvenile under this subsection includes the authority to refer the juvenile to community-based counseling or treatment programs or a restorative justice program. Any juvenile released under this subsection shall be advised that the act or omission of any act for which he or she had been referred shall constitute a part of the juvenile's criminal history as defined by RCW 13.40.020(7). A signed acknowledgment of such advisement shall be obtained from the juvenile, and the document shall be maintained by the unit, and a copy of the document shall be delivered to the prosecutor if requested by the prosecutor. The supreme court shall promulgate rules setting forth the content of such advisement in simple language. A juvenile determined to be eligible by a diversion unit for release as provided in this subsection shall retain the same right to counsel and right to have his or her case referred to the court for formal action as any other juvenile referred to the unit.
     (15) A diversion unit may supervise the fulfillment of a diversion agreement entered into before the juvenile's eighteenth birthday and which includes a period extending beyond the divertee's eighteenth birthday.
     (16) If a fine required by a diversion agreement cannot reasonably be paid due to a change of circumstance, the diversion agreement may be modified at the request of the divertee and with the concurrence of the diversion unit to convert an unpaid fine into community restitution. The modification of the diversion agreement shall be in writing and signed by the divertee and the diversion unit. The number of hours of community restitution in lieu of a monetary penalty shall be converted at the rate of the prevailing state minimum wage per hour.
     (17) Fines imposed under this section shall be collected and paid into the county general fund in accordance with procedures established by the juvenile court administrator under RCW 13.04.040 and may be used only for juvenile services. In the expenditure of funds for juvenile services, there shall be a maintenance of effort whereby counties exhaust existing resources before using amounts collected under this section.