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Title 17 - Criminal Procedures
PRETRIAL INTERVENTION PROGRAM
This chapter may be cited as the "Pretrial Intervention Act."
When used in this chapter:
(1) The term "prosecutorial discretion" shall mean the power of the circuit solicitor to consider all circumstances of criminal proceedings and to determine whether any legal action is to be taken and, if so taken, of what kind and degree and to what conclusion.
(2) The term "noncriminal disposition" shall mean the dismissal of a criminal charge without prejudice to the State to reinstate criminal proceedings on motion of the solicitor.
Circuit solicitors to establish pretrial intervention programs; oversight of administrative procedures.
(A) Each circuit solicitor shall have the prosecutorial discretion as defined herein and shall as a matter of such prosecutorial discretion establish a pretrial intervention program in the respective circuits.
(B) The circuit solicitors are specifically endowed with and shall retain all discretionary powers under the common law.
(C) A pretrial intervention program shall be under the direct supervision and control of the circuit solicitor; however, he may contract for services with any agency desired.
(D) The South Carolina Commission on Prosecution Coordination shall oversee administrative procedures for the Circuit Solicitors' Pretrial Intervention Programs.
Pretrial intervention coordinator; staff; funding.
There is established the office of Pretrial Intervention Coordinator whose responsibility is to assist the solicitor in each judicial circuit in establishing and maintaining a pretrial intervention program. The office of Pretrial Intervention Coordinator must be within the South Carolina Commission on Prosecution Coordination. The coordinator and such staff as is necessary to assist in the implementation of the provisions of this chapter must be employed by the South Carolina Commission on Prosecution Coordination. The office of the coordinator must be funded by an appropriation to the Commission on Prosecution Coordination in the state general appropriation act.
Persons not to be considered for intervention.
A person may not be considered for intervention if he has previously been accepted into an intervention program nor may intervention be considered for those individuals charged with blackmail, driving under the influence of intoxicating liquor or drugs, any traffic-related offense which is punishable only by fine or loss of points, or any fish, game, wildlife, or commercial fishery-related offense which is punishable by a loss of eighteen points as provided in Section 50-9-1020, or any crime of violence as defined in Section 16-1-60. However, this section does not apply if the solicitor determines the elements of the crime do not fit the charge.
Additional conditions, for admission to pretrial intervention, of person charged with fish, game, wildlife, or commercial fishery-related offense.
As a condition of admission to the pretrial intervention program of a person charged with a fish, game, wildlife, or commercial fishery-related offense which does not disqualify him for intervention, this person shall pay an additional administrative charge equal to the maximum monetary fine, not to exceed five hundred dollars, which could be imposed for the offense. The administrative charge must be deposited in the game and fish fund of the county where the offense was committed. Also, if any property was seized and confiscated at the time of the arrest for the offense, as a condition of admission to the pretrial intervention program, the offender must agree to the retention and sale of that property as provided by law by the law enforcement agency making the seizure. The proceeds from the sale also must be deposited in the game and fish fund of the county wherein the offense was committed.
Standards of eligibility for intervention program.
Intervention is appropriate only where:
(1) there is substantial likelihood that justice will be served if the offender is placed in an intervention program;
(2) it is determined that the needs of the offender and the State can better be met outside the traditional criminal justice process;
(3) it is apparent that the offender poses no threat to the community;
(4) it appears that the offender is unlikely to be involved in further criminal activity;
(5) the offender, in those cases where it is required, is likely to respond quickly to rehabilitative treatment;
(6) the offender has no significant history of prior delinquency or criminal activity;
(7) the offender has not previously been accepted in a pretrial intervention program.
Information which may be required by solicitor.
Prior to admittance of an offender into an intervention program, the solicitor or judge, if application is made to the court pursuant to Section 17-22-100, may require the offender to furnish information concerning the offender's past criminal record, education and work record, family history, medical or psychiatric treatment or care received, psychological tests taken and other information which, in the solicitor's or judge's opinion, has bearing on the decision as to whether the offender should be admitted. Solicitor's office records under this section shall adhere to and abide by Federal Confidentiality Regulation 42 CFR part 2 and any other applicable federal, state, or local regulations.
Recommendations of victim and law enforcement agency.
Prior to any person being admitted to a pretrial intervention program the victim, if any, of the crime for which the applicant is charged and the law enforcement agency employing the arresting officer shall be asked to comment in writing as to whether or not the applicant should be allowed to enter an intervention program. In each case involving admission to an intervention program, the solicitor or judge, if application is made to the court pursuant to Section 17-22-100, shall consider the recommendations of the law enforcement agency and the victim, if any, in making a decision.
Agreements required of offender in program.
An offender who enters an intervention program shall:
(1) waive, in writing and contingent upon his successful completion of the program, his or her right to a speedy trial;
(2) agree, in writing, to the tolling while in the program of all periods of limitation established by statutes or rules of court;
(3) agree, in writing, to the conditions of the intervention program established by the solicitor;
(4) in the event there is a victim of the crime, agree, in writing, to make restitution to the victim within a specified period of time and in an amount to be determined by the solicitor;
(5) agree, in writing, that any records relating to participation in pretrial intervention or information obtained through pretrial intervention is not admissible as evidence in subsequent proceedings, criminal or civil, and communication between pretrial intervention counselors and defendants shall remain as privileged communication unless a court of competent jurisdiction determines that there is a compelling public interest that such communication be revealed. In no case shall a written admission of guilt be required of a defendant prior to acceptance nor prior to completion of the pretrial intervention program; and
(6) if the offense is committing or attempting to commit a lewd act upon a child under the age of sixteen years pursuant to Section 16-15-140, agree in the agreement between the solicitor's office and the offender provided for in Section 17-22-120 to allow information about the offense to be made available to day care centers, group day care homes, family day care homes, church or religious day care centers, and other facilities providing care to children and related agencies by the State Law Enforcement Division pursuant to regulations which the State Law Enforcement Division shall promulgate.
Time for application to intervention program.
An offender must make application to an intervention program or to the chief administrative judge of the court of general sessions no later than seventy-five days after service of the warrant or within ten days following appointment of counsel for the charge for which he makes the application. However, in the discretion of the solicitor or the chief administrative judge of the court of general sessions, if application is made directly to the judge, the provisions of this section may be waived. Applications received by the chief administrative judge of the court of general sessions under this section may be preliminarily approved by the judge pending a determination by the pretrial office that the offender is eligible to participate in a pretrial program pursuant to Sections 17-22-50 and 17-22-60. Applications received by the chief administrative judge of the court of general sessions and information obtained pursuant to Section 17-22-70 must be forwarded to the pretrial office.
Fees for application and participation; waiver.
An applicant to an intervention program or an offender who applies to the chief administrative judge of the court of general sessions for admission to a program pursuant to Section 17-22-100 shall pay a nonrefundable application fee of one hundred dollars and, if accepted into the program, a nonrefundable participation fee of two hundred fifty dollars prior to admission. All fees paid must be deposited into a special circuit solicitor's fund for operation of the pretrial intervention program. All fees or costs of supervision may be waived partially or totally by the solicitor in cases of indigency. The solicitor may also, if he determines necessary, in situations other than indigency allow scheduling of payments in lieu of lump sum payment. In no case shall aggregate fees for application and participation in an intervention program exceed three hundred fifty dollars. However, in cases where the solicitor determines that referral to another agency or program is needed to achieve rehabilitation for a problem directly related to the charge, the defendant may be required to pay his participation in that special program, except that no services may be denied due to inability to pay.
Individual agreement between offender and solicitor; alcohol and drug abuse services.
In any case in which an offender agrees to an intervention program, a specific agreement must be made between the solicitor and the offender. This agreement shall include the terms of the intervention program, the length of the program and a section stating the period of time after which the prosecutor will either dismiss the charge or seek a conviction based upon that charge. The agreement must be signed by the offender and his or her counsel, if represented by counsel, and filed in the solicitor's office. The Commission on Alcohol and Drug Abuse shall provide training if requested on the recognition of alcohol and drug abuse to counselor employees of local pretrial intervention programs and the local agency authorized by Section 61-12-20 shall provide services to alcohol and drug abusers if referred by pretrial intervention programs. However, no services may be denied due to an offender's inability to pay.
Reports and identification as to offenders accepted for intervention program.
Notwithstanding the provisions of Section 17-1-40, in all cases where an offender is accepted for intervention a report must be made and retained on file in the solicitor's office, regardless of whether or not the offender successfully completes the intervention program. All reports must be retained on file in the solicitor's office for a period of two years after successful completion, two years after rejection, or two years after unsuccessful completion of the program. After the retention of these reports for two years, they may be destroyed. The circuit solicitor shall furnish to the South Carolina Law Enforcement Division personal identification information on each person who applies for intervention, is subsequently accepted or rejected and successfully or unsuccessfully completes the program. This information may only be used by the division and the State Coordinator's Office in those cases where a circuit solicitor inquires as to whether a person has previously been accepted in an intervention program. However, that information may be confidentially released to the State Coordinator's Office to assist in compiling annual reports. The identification information on any defendant must not be under any circumstances released as public knowledge.
Restitution to victim.
Prior to the completion of the pretrial intervention program the offender shall make restitution, as determined by the solicitor, to the victim, if any.
Disposition of charges against offenders accepted for intervention program.
(a) In the event an offender successfully completes a pretrial intervention program, the solicitor shall effect a noncriminal disposition of the charge or charges pending against the offender. Upon such disposition, the offender may apply to the court for an order to destroy all official records relating to his arrest and no evidence of the records pertaining to the charge may be retained by any municipal, county, or state entity or any individual, except as otherwise provided in Section 17-22-130. The effect of the order is to restore the person, in the contemplation of the law, to the status he occupied before the arrest. No person as to whom the order has been entered may be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge the arrest in response to any inquiry made of him for any purpose.
(b) In the event the offender violates the conditions of the program agreement: (1) the solicitor may terminate the offender's participation in the program, (2) the waiver executed pursuant to Section 17-22-90 shall be void on the date the offender is removed from the program for the violation and (3) the prosecution of pending criminal charges against the offender shall be resumed by the solicitor.
Unlawful retention or release of information regarding participation in intervention program; penalty.
Any municipal, county, or state entity or any individual who unlawfully retains or releases information on an offender's participation in a pretrial intervention program is guilty of a misdemeanor and, upon conviction, must be punished by a fine not exceeding two thousand dollars or by imprisonment not to exceed one year.
The provisions of this section do not apply to circuit solicitors or their staff in the performance of their official duties.