OLR Research Report


March 15, 2002

 

2002-R-0291

ELIGIBILITY FOR PRE-TRIAL DIVERSION PROGRAMS

By: George Coppolo, Chief Attorney

Courts are also authorized under a separate statutory program to order offenders who are drug-or-alcohol-dependent into treatment in lieu of prosecution or incarceration. The pretrial diversion aspect of the program covers all drug sale and possession crimes. A person charged with driving under the influence, assault in the second degree with a motor vehicle, or a class A, B, or C felony is not eligible for suspended prosecution and treatment. In addition, anyone who was previously ordered treated under this program or under a program covered by earlier versions of this law is not eligible. But the court may waive these eligibility rules.

Once the court determines eligibility, the bail commissioner must confirm it and refer the applicant to DMHAS for placement. Applicants must agree to participate in a treatment program that a DMHAS contract provider recommends or, if the bail commissioner thinks it appropriate, one that has standards at least similar to the contract provider's program. They must also successfully complete four days in the community service labor program.

The court must dismiss the charges against anyone who asks after it determines that he successfully completed the program. For participants who do not apply for dismissal, the court may dismiss the charges on its own motion if the program was successfully completed. Upon the participant's motion and a showing of good cause, the court may extend the placement for any reasonable period needed to complete it (CGS § 54-56i).

Courts are authorized under a separate statutory program to order offenders who are drug or alcohol dependent into treatment in lieu of prosecution or incarceration (CGS § 17a-692 to 17a-701). The pretrial diversion aspect of the program covers all drug sale and possession crimes. A person charged with driving under the influence, assault in the second degree with a motor vehicle, or a class A, B, or C felony is not eligible for suspended prosecution and treatment. In addition, anyone who was previously ordered treated under this program or under a program covered by earlier versions of this law (CGS § 17-155y(i), 19a-386, or 21a-284 of the General Statutes, revised to 1989) is not eligible. But, the court may waive these eligibility rules (CGS § 17a-696).

An examiner's treatment recommendation must include provisions for placement, the type and length of treatment, and when space will be available in a treatment program. The date cannot be more than 45 days from the date of the examination report.

Suspended Prosecution

The school violence prevention program is for public or private secondary school students charged with crimes involving the use or threatened use of physical violence in or on elementary or secondary school property or at a school-sponsored activity. There is a similar program for children under 16 accused of delinquent acts involving the use or threatened use of violence in or on school property or at a school-sponsored activity. Each program consists of at least eight group counseling sessions in anger management and nonviolent conflict resolution.

The student's parent or guardian must pay for the program unless the parent or guardian files with the court an affidavit of indigency or inability to pay and the court makes a finding of indigency or inability.

The Office of Alternative Sanctions (OAS) must contract with service providers for the criminal diversion program, develop standards, and oversee appropriate programs.

Eligibility Conditions. To be eligible for the program, the student and his parent or guardian, must certify under penalty of false statement, that to the best of their knowledge and belief, they do not possess any firearms, dangerous weapons, drugs, or other property or materials, which are illegal for them to possess. The student must also agree to: (1) the tolling of the statute of limitations for the crime; (2) a waiver of his right to a speedy trial; and (3) participate in, and successfully complete, a school violence prevention program offered by a provider that has contracted with the OAS.

Application for Pretrial Diversion Program. The court must order the file sealed if the applicant states under oath, in open court, under penalties of perjury that he has never been referred to the program before or been convicted of a violent crime at school or at a school event in Connecticut or elsewhere. The court, after considering the prosecutor's recommendation may, in its discretion, grant the application.

If the court does so, it must refer the matter to the Bail Commission for assessment and confirmation of the applicant's eligibility. The act allows the Bail Commission to rely on the applicant's sworn in-court representations.

Supervising and Completion of the Program. The OAS must monitor the defendant's participation in the program and his compliance with court orders including maintaining contacts with school students and officials. The court must dismiss the charges on the defendant's or its own motion if it finds the defendant has satisfactorily completed the program and one year has elapsed since he was placed in it.

Eligibility. To be eligible for the school violence prevention program for juveniles in delinquency proceedings, the child must agree to satisfactorily complete a program of anger management and nonviolent conflict resolution consisting of at least eight group counseling sessions and comply with any court order. The parents or guardians, as a condition of eligibility, must certify under penalty of false statement that, to the best of their knowledge and belief, neither they nor the child possess any firearms, dangerous weapons, controlled substances, or other property or materials which are illegal for them to possess.

If the court denies the motion, the juvenile prosecutor may proceed with the delinquency proceedings. Any court order granting or denying a motion to suspend the proceedings is not a final order and thus may not be immediately appealed.

At any time before the program period ends, but no later than one month before the end of the program period, the juvenile probation officer must notify the court of the program's impending conclusion for the student and report on whether the child has satisfactorily completed the program and otherwise complied with all other court ordered conditions.

The court may dismiss the charges if it finds the child has done so. If the court determines the child has not done so, it may terminate the suspension of the delinquency proceedings, and the delinquency proceedings may continue.