S 912 Session 110 (1993-1994)
S 0912 General Bill, By T.W. Mitchell and Washington
A Bill to amend Chapter 53 of Title 44, Code of Laws of South Carolina, 1976,
relating to poisons, drugs, and other controlled substances, so as to add
Article 15, the Mandatory Drug Treatment Act.
12/06/93 Senate Prefiled
12/06/93 Senate Referred to Committee on Medical Affairs
01/11/94 Senate Introduced and read first time SJ-36
01/11/94 Senate Referred to Committee on Medical Affairs SJ-36
A BILL
TO AMEND CHAPTER 53 OF TITLE 44, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO POISONS, DRUGS, AND
OTHER CONTROLLED SUBSTANCES, SO AS TO ADD ARTICLE
15, THE MANDATORY DRUG TREATMENT ACT.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 53, Title 44 of the 1976 Code is amended by
adding:
Article 15
Section 44-53-1605. This act shall be known as the Mandatory Drug
Treatment Act of 1994.
Section 44-53-1610. The General Assembly finds that the high
incidence of crimes which directly involve alcohol and drugs in this
State is intolerable; that the problems of alcohol and drug abuse among
the citizens of South Carolina are extensive and exist at an unacceptable
level; that alcohol and/or drug abuse or dependency have been identified
as contributing factors in the commission of many crimes; that a
concentrated and coordinated state and local effort is needed to address
the needs of South Carolinians regarding such problems; that a
specialized system for screening, evaluating, educating, and
rehabilitating defendants convicted of alcohol and drug related offenses
is required to address such problems; and that adequate funding should
be provided for this purpose. It is therefore the intent of the General
Assembly to establish a specialized court referral officer program to
promote the evaluation, education, and rehabilitation of persons whose
use or dependency on alcohol or drugs directly or indirectly contributed
to the commission of an offense for which they were convicted in state
or municipal courts and to establish mandatory alcohol and drug abuse
treatment programs to provide treatment and rehabilitation for these
identified offenders.
Section 44-53-15. For the purpose of this act, the following terms
shall have the meaning ascribed to them in this section:
(1) `Alcohol or drug related offenses' means all offenses, including
municipal ordinance violations, in which alcohol and drug abuse is
determined from the evidence to have been a factor in the commission
of the offense, including juveniles charged with possession of controlled
substances and adjudicated delinquent.
(2) `Alcohol abuse' means the use of alcohol to the extent that the
health, safety, or welfare of the user, or that of others, is substantially
impaired or endangered or the social or economic function of the user is
disrupted.
(3) `Drug abuse' means use of a controlled substance or drug with
abuse or addictive potential to the extent that the user has lost the ability
of self control, or to the extent that the health, safety, or welfare of the
user, or that of others, is substantially impaired or endangered, or the
social or economic function of the user is disrupted.
(4) `Court referral officer program' means a program established to
evaluate defendants' use of alcohol and/or drugs and to provide
assistance to courts in promoting the education and rehabilitation of
defendants, including juveniles and those granted youthful offender
status or convicted of alcohol and/or drug-related offenses.
(5) `Court referral officers' means those persons within designated
court jurisdictions providing assessment or evaluation of defendants for
alcohol and/or drug abuse, recommendations and/or recommendations
for education or treatment and monitoring for court-ordered compliance.
(6) `DUI' means driving or in actual physical control of a vehicle
while under the influence of alcohol or drugs as prescribed by Section
56-5-2930, or any other law.
(7) `Diversionary screening' means the power of the prosecutor,
prior to arraignment, to consider all circumstances of criminal
proceedings and to determine whether any legal action is to be taken.
(8) `Prosecutorial discretion' means the discretionary power of a
solicitor to suspend, prior to the arraignment, all formal prosecutorial
proceedings against one who has become involved in the criminal justice
system as a defendant or an accused.
(9) `Accusatory instrument' means any complaint, information, or
grand jury indictment.
(10) `Non-criminal disposition' means the dismissal of a criminal
charge without prejudice to reinstate criminal proceedings on motion of
the prosecutory as herein provided.
(11) `Pre-trial diversion' means the imposition of conditions by the
prosecutory upon defendants charged with certain criminal offenses for
a specified period of time prior to arraignment.
(12) `Deferred prosecution' means the suspension of prosecution prior
to arraignment for a specified period of time upon the request of the
accused with the consent of the prosecutor.
(13) `Department' means the Department of Probation, Parole and
Pardon Services.
(14) `Director' means the Executive Director of the Department of
Probation, Parole and Pardon Services.
Section 44-53-1620. The Director of the Department of Probation,
Parole and Pardon Services is authorized to appoint court referral
officers or contract with individuals or entities to provide alcohol and
drug assessment for courts and to conduct the court referral programs in
each court jurisdiction of the State. Such appointments or contracts shall
be made or entered into with the advice of the presiding circuit judge.
The director shall designate the locations where said court referral
programs, court referral officers or contracting entities or individuals
shall serve, which designations may be changed from time to time;
provided, however, that all appointed court referral officers and
approved court referral programs shall serve at the pleasure of the
director. Any individual or entity which contracts to conduct the court
referral program shall perform all the duties as set out in the statewide
policies and procedures manual for court referral programs established
by the department or these programs shall meet the national criteria for
Treatment Alternatives to Street Crimes (TASC) programs. Court
referral officers shall work under the general supervision and direction
of the director and judges of the circuit to which they are assigned. Such
court referral officers shall be compensated by the State. Except for
court referral officers currently employed by the department at the
effective date of this act, such officers shall not be considered employees
of the state for purposes of entitlement to insurance, retirement, and
other state employee benefits.
Court referral officers shall be required to perform the following
duties:
(A) attend municipal, magistrate, family, and circuit court
proceedings as needed;
(B) screen and evaluate all defendants ordered by the solicitor or trial
courts to participate and to recommend to the court appropriate
educational and/or rehabilitative programs for such defendants;
(C) develop and maintain a file on each defendant assigned to the
court referral officer which shall include, but shall not be limited to,
information taken from arrest records, tests scores, results of chemical
blood alcohol tests, drug screens, and other personal data;
(D) continuously monitor defendants who are ordered to complete
alcohol and/or drug related educational or rehabilitative programs and
to report violations of such orders to the solicitor or court;
(E) provide such information and reports on defendants assigned to
the court referral officer as may be required by the solicitor, ordering
court, or the director;
(F) provide information or education on the court referral program
to judges, clerks, law enforcement personnel, solicitors, and the general
public;
(G) collect and report statistics, data, and other information
pertaining to the court referral program and alcohol and drug related
offenses as required by the director or area judge(s);
(H) collect and report information to the courts concerning results of
urine screens, drug testing, or other appropriate evaluative measures; and
(I) perform such other duties or functions to further the purposes of
this act as may be directed by the court which they serve or the director.
Section 44-53-1625. Any person arrested or charged with a
misdemeanor possession of controlled substance offense, in violation of
Section 44-53-370(d), or arrested or charged with DUI under Section
56-5-2930, may file a request with the solicitor having jurisdiction over
the offense to enroll in a drug and alcohol abuse treatment program in
lieu of undergoing prosecution. Admission to such treatment program
and deferral of prosecution may be granted at the discretion of the
solicitor. The Prosecution Coordination Commission shall establish
guidelines which shall be used by the solicitor in evaluating the request
for diversion from the criminal justice system into rehabilitation. If
prosecution has been initiated by the filing of a complaint, information,
or indictment, prior approval and dismissal of the case must be obtained
from the judge presiding over the case. Admission to such treatment or
rehabilitation program and deferral of prosecution is subject to the
following conditions:
(A) The defendant must have no prior felony convictions for
controlled substance offenses or other pending felony charges.
(B) Where the person is arrested or charged with violation of Section
44-53-370(d), or with DUI, the solicitor may request diversion.
(C) If diversion to treatment is allowed, the offender shall:
(1) provide information needed to conduct an assessment of his
treatment needs;
(2) complete the recommended treatment;
(3) complete a drug or alcohol testing program;
(4) pay restitution to his victim, if any; and
(5) unless indigent, pay for his assessment, treatment, and
monitoring.
(D) If the defendant fails to complete treatment and pay the required
costs, the prosecutor shall initiate charges against the defendant.
Section 44-53-1630. In order to effect the purposes of this act, all
courts exercising jurisdiction over alcohol and drug related offenses, as
defined in Section 44-53-1615(1), shall be authorized to refer a
defendant to a court referral program for evaluation and referral to an
appropriate education and/or treatment program. At a minimum, every
defendant who is not referred directly to drug or alcohol treatment shall
be required to complete an alcohol and drug education program certified
by the department.
Section 44-53-1635. Any person who is convicted of an alcohol or
drug related offense, as defined in Section 44-53-1615(1), and who is
placed on probation or parole shall be required to participate in an
alcohol or drug testing program at his own expense, unless he is
determined to be indigent. Any such person who fails the alcohol or
drug test shall be required to:
(A) provide information needed to conduct a treatment assessment;
(B) complete the recommended treatment; and
(C) pay for the assessment, treatment, and alcohol or drug testing
unless the court finds he is indigent.
Any such person who fails to complete treatment and pay for it shall
be charged with violation of probation or parole; provided, however, that
indigents shall not be required to pay for treatment or monitoring
provided by court referral officers.
Section 44-53-1640. Compliance with any order authorized
pursuant to this act relating to education and/or treatment may be
enforced by the court through exercise of its contempt powers; or, where
made a condition or probation, by revocation thereof for
non-compliance.
Section 44-53-1650. The Alcohol and Drug Abuse Court Referral
Officer Trust Fund is hereby established and created as a separate fund
in the state treasury. Such fund shall be used for operation of the
alcohol and drug abuse court referral officer program. This fund shall
consist of all monies paid into the state treasury to the credit of such
fund pursuant to this act and all monies received for the benefit of the
court referral officer program by legislative appropriation, grant, gift, or
contributions by counties or municipalities, or otherwise. Such monies
shall be used and expended by the director to establish, organize, and
administer the alcohol and drug abuse court referral officer program
throughout the State. Any unexpended or unencumbered sums
remaining in the fund at the end of the fiscal year shall remain in the
fund to be preserved for the administration of the alcohol and drug abuse
court referral officer program.
Section 44-53-1655. Monies contained in the Alcohol and Drug
Abuse Court Referral Officer Trust Fund may be expended by the
director for purposes set out in Section 44-53-1620 of this act.
Section 44-53-1660. In addition to the imposition of any other costs,
penalties, or fines imposed pursuant to law, any person convicted as an
adult or adjudicated a youthful offender or juvenile delinquent based on
the offense of driving under the influence or other alcohol or drug
related offenses as defined in this act shall be ordered by the court to pay
an alcohol and drug abuse court referral officer assessment fee in an
amount recommended by the Board of Probation, Parole and Pardon
Services. Such additional assessment fee shall be collected by the court
referral officer by the tenth day of each month and remitted to the state
treasurer who shall credit such sums to the Alcohol and Drug Abuse
Court Referral Officer Trust Fund.
Section 44-53-1665. Any alcohol or drug related offender referred
for assessment and placed on probation by the judge shall pay a
monitoring fee to the court referral officer which shall also be remitted
to the state treasurer by the court referral office by the tenth day of each
month as set out in Section 44-53-1650. The assessment fee and
monitoring fees shall be established and regulated by the department and
can be adjusted to ensure that adequate financial resources are available
to support the court referral program and administration of the programs.
Section 44-53-1670. The department shall establish criteria to
determine eligibility of court referral programs to receive payment from
the Alcohol and Drug Abuse Court Referral Officer Trust Fund. All
South Carolina TASC programs which meet the national TASC criteria
at the date of enactment of this legislation shall be eligible to receive
payments from the Alcohol and Drug Abuse Court Referral Officer
Trust Fund. All such programs shall be non-profit agencies.
Section 44-53-1675. The Indigent Offender Alcohol and Drug
Treatment Trust Fund is hereby established and created as a separate
fund in the state treasury. Such fund shall provide for payment to
eligible alcohol and drug treatment programs for treatment and
rehabilitation of indigent offenders. This fund shall consist of all monies
paid into the state treasury to the credit of such fund pursuant to this act
and all monies received for the benefit of the indigent offender alcohol
and drug treatment trust fund by legislative appropriation, grant, or
otherwise. A fee recommended by the Board of Probation, Parole and
Pardon Services shall be collected from each offender. The fee shall be
collected by the court referral officer by the tenth day of each month and
remitted to the state treasurer who shall credit such sums to the Indigent
Offender Alcohol and Drug Treatment Trust Fund. Failure of a court
referral program or court referral officer to remit all fees collected shall
be grounds for termination from the program. Additionally, the
prosecutor shall be authorized to determine if criminal charges are
warranted.
Section 44-53-1685. Monies contained in the Indigent Offender
Alcohol and Drug Treatment Trust Fund may be expended by the
department for purposes set out in Section 44-53-1675 of this act. Such
monies shall be used and expended by the department to establish,
organize, and administer the indigent offender alcohol and drug
treatment program throughout the State, including all functions or
projects of the department. Any unexpended or unencumbered sums
remaining in the fund at the end of the fiscal year shall remain in the
fund to be preserved for the administration of the indigent offender
treatment program.
Section 44-53-1690. Any person determined to be indigent by the
court may request waiver of all or part of the fees established by this act.
In such cases where a waiver of fees is granted, such waiver shall be
limited to the time when the offender is unable to pay. If the offender
becomes able to pay during the course of monitoring or treatment, or
another future date, the waiver of fees may be revoked. The judge may
order an indigent offender to perform community service in lieu of
payment of fees.
Section 44-53-1695. The court referral officers and employees of
the department, including the director, shall be exempt from civil
liability for alleged acts of ordinary negligence actions taken in
performance of their official duties carrying out the provisions of this
act."
SECTION 2. All laws or parts of laws which conflict with this act are
expressly repealed.
SECTION 3. This act takes effect upon approval by the Governor.
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