Topic:
SENTENCING; CRIMINALS; JUVENILE DELINQUENCY; PRETRIAL PROCEDURE;
Location:
SENTENCING - ALTERNATIVE SANCTIONS;

OLR Research Report


March 15, 2002

 

2002-R-0291

ELIGIBILITY FOR PRE-TRIAL DIVERSION PROGRAMS

By: George Coppolo, Chief Attorney

You asked what the eligibility requirements are for the various pretrial diversion programs and youthful offender status.

SUMMARY

We have identified seven pretrial diversion programs: accelerated rehabilitation, pretrial drug education, community service labor, treatment of drug and alcohol offenders in lieu of prosecution, pretrial alcohol diversion, pretrial family violence education, and pretrial school violence diversion.

Accelerated rehabilitation (AR) is a program for people accused of crimes “not of a serious nature”. The court has discretion whether to allow a defendant to use the program. But a person is ineligible if he (1) was previously convicted of a crime or certain motor vehicle violations; (2) used the program before, (3) has been adjudged a youthful offender during the past five years; (4) has been charged with certain drug offenses and is eligible for the pretrial drug education program or has had it invoked twice before; (5) has been charged with a family violence crime and is eligible for the pretrial family education program or has had that program invoked in his favor before; or (6) has been charged with certain serious offenses.

The pretrial drug education program is for people charged with possession of drugs or drug paraphernalia. A person is ineligible if he previously participated in the program or the community service labor program.

The community service labor program is for people charged with possession of illegal drugs or drug paraphernalia. Those with prior drug possession and sale convictions are not eligible. But past participants in the drug education program can participate. The program can be a pretrial diversion, part of any sentence of conditional discharge, or a condition of probation.

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.

The pretrial alcohol education system is for people charged with driving while under the influence. A defendant is ineligible for this program if he has:

1. used the system before;

2. been convicted of manslaughter in the second degree with a motor vehicle, assault in the second degree with a motor vehicle, or driving while under the influence; or

3. been convicted of crimes in other states that are substantially the same as those listed above.

A person is also ineligible if the alleged drunk driving violation caused serious physical injury to another, unless he can show good cause.

The pretrial family violence education program is for people who are charged with family violence crimes. A defendant can ask the court to place him in the program. A defendant is ineligible if he:

1. is charged with a class A, B, or C felony, an unclassified felony that carries more than a 10 year sentence, or, unless good cause is shown, a class D felony, or an unclassified felony carrying a penalty of at least five years;

2. has previously taken the program; or

3. has been convicted of, or accepted accelerated rehabilitation for, a family violence crime committed after October 1, 1986.

The school violence diversion 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. 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 youthful offender program is an alternative way to handle people aged 16 or 17 who are charged with a crime. A person is not eligible for this program if he: (1) is charged with a class A felony or certain other serious offenses; (2) has previously been (a) convicted of a felony, or (b) adjudged a serious juvenile offender, a serious juvenile repeat offender, or a youthful offender; or (3) has previously been afforded the AR program.

AR PROGRAM

Statutory Standards

A person is ineligible for AR if he:

1. is charged with a class A or B felony;

2. is charged with an offense that caused someone's death;

3. is charged with a class C felony, unless good cause is shown;

4. is charged with:

a. operating under the influence of alcohol or drugs(CGS 14-227a);

b. risk of injury to a minor involving sex (CGS 53-21(2));

c. manslaughter in the second degree with a motor vehicle (CGS 53a-56b);

d. assault in the second degree with a motor vehicle (CGS 53a-60d);

e. sexual assault in the first degree (CGS 53a-70);

f. aggravated sexual assault in the first degree (CGS 53a-70a);

g. sexual assault in a spousal or cohabiting relationship (CGS 53a-70b);

h. sexual assault in the second degree (CGS 53a-71);

i. sexual assault in the third degree (CGS 53a-72a); or

j. sexual assault in the third degree with a firearm (CGS 53a-72b);

5. has a previous conviction of a crime;

6. has a previous record of a violation of :

a. various motor vehicle certificate of title offenses (CGS 14-196),

b. operating a motor vehicle with a suspended license for drunk driving and drunk driving related offenses resulting in death or serious physical injury (CGS 14-215 (c)),

c. negligent homicide with a motor vehicle (CGS 14-222a),

d. evading responsibility involving an incident that resulted in death or serious physical injury (CGS 14-224(a)), or

e. driving under the influence (CGS 14-227a);

7. has been charged with a family violence crime (CGS 46b-38a ) and is eligible for the pretrial family violence education program or has had that program invoked on his behalf before;

8. has been adjudged a youthful offender in the preceding five years; or

9. has used the AR program before (CGS 54-56e (b) and (c)).

AR program participants waive their right to a speedy trial. The court places them under the supervision of the Office of Adult Probation (OAP) for up to two years under whatever conditions it orders. If the defendant successfully completes the program the charges against him are dismissed by the court and his records are erased. If he violates a condition of the program, he is brought to trial on the original charges.

PRETRIAL DRUG EDUCATION

The Department of Mental Health and Addition Services (DMHAS) runs the pretrial drug education program for people charged with possession of drugs or drug paraphernalia. A person is ineligible if he previously participated in the program or the pretrial community service labor program. The court may approve the application after considering the prosecutor's recommendations. Eligible applicants must pay a $350 nonrefundable fee, which the court must waive for indigency. The court must seal the records of any applicant who states under oath that he has not previously participated in the program.

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).

COMMUNITY SERVICE LABOR PROGRAM

The community service labor program is for people charged with possession of illegal drugs or drug paraphernalia (CGS 53a-39c). Those with prior drug possession and sale convictions are not eligible. But past participants in the drug education program can participate, as long as they have not twice previously been placed in it. The program can be a pretrial diversion for those who have not previously been in it, or a condition of probation. The program is within the Office of Adult Probation (OAP), established by the director of that office, and subject to the approval of the chief court administrator. The program includes unpaid labor for government such as picking up litter from public streets and unpaid labor for nonprofit charitable institutions such as painting buildings.

If a person has not previously been placed in the program, the court can suspend prosecution and place him in it. If he satisfactorily completes the program, the court must dismiss the charges against him. If the program provider certifies to the court that he did not successfully complete it, or is no longer amenable to participation in it, the court must place the case on the trial list.

All participants must stay in the program for at least 14 days for a first violation and 30 days for a second violation involving a guilty plea and conviction (CGS 53a-39c).

TREATMENT OF DRUG OR ALCOHOL DEPENDENT OFFENDERS IN LIEU OF PROSECUTION

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).

Treatment Evaluation

The court, on its own motion or that of the state's attorney, or a person charged with or convicted (but not yet sentenced) of a crime, may order an examination to determine if a person is alcohol- or drug-dependent and eligible for treatment. A probation officer may also order such examination as part of a presentence investigation.

The law requires a clinical examiner appointed by the DMHAS commissioner to conduct the examination. The examiner must determine whether the person was alcohol- or drug-dependent at the time of the offense. If the examiner determines that the person was dependent, the examiner must look at the person's history and pattern of dependency and whether he needs and would benefit from treatment. The examiner must report his recommendations to the court, the OAP, the state's attorney, and defense counsel within 30 days of the date the examination was ordered.

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.

A “treatment program” is one operated by the DMHAS or approved by the commissioner of that department or DOC for the treatment of the physical and psychological effects of alcohol or drug-dependency. It does not include a program that provides only detoxification services.

Suspended Prosecution

An eligible person may make a motion for suspended prosecution and treatment after the court receives the examination report. The court may order prosecution suspended and treatment for an eligible person if it finds that: (1) the person was alcohol-or drug-dependent at the time of the offense, (2) he needs and is likely to benefit from treatment, and (3) suspension of prosecution would advance the interest of justice.

Prosecution may be suspended for up to two years. During the suspension, the person is placed in the custody of OAP for substance abuse treatment. The court or OAP may require that he comply with certain conditions of probation and be tested for alcohol or drugs.

Prosecution may not be suspended unless the accused acknowledges that he understands the consequences of being in the program, has given the victim notice of the proceedings, and the victim, if any, has had an opportunity to be heard on the motion to suspend prosecution. The accused must pay a $25 administration fee unless indigent.

Completion Of Program

Upon completing treatment, the person may be discharged by the treatment program's director. The director must notify OAP of his intent at least seven days before the discharge date.

At any time before the end of the supervision period, the OAP may recommend to the court that the charge be dismissed if the person has completed treatment, complied with the conditions set by the court or the OAP, and abstained for one year from alcohol or drugs. The OAP must notify the court and submit a report on whether the person has completed treatment and complied with the other conditions of suspension at least 30 days before the end of the suspension period. It must also indicate whether it recommends dismissal of the charge.

If the court finds that the person is responding well to treatment or has completed treatment and has complied with the other conditions of suspension, it may dismiss the charges. If the court denies the motion and terminates the suspension, the state's attorney may proceed with the prosecution.

The court may modify or terminate the conditions of the suspension if it finds that a person has: (1) committed a violent act at the treatment facility, (2) threatened to commit such an act, (3) committed a serious rule violation, (4) committed repeated violations of the program's rules that inhibit his ability to function in the program, (5) refused continually to participate, (6) asked to be removed from the program, or (7) been unable to participate because of a medical or psychosocial condition not appropriately treated by the program. The director has the burden of establishing the facts. If the suspension is terminated, the person may be prosecuted.

If the person is discharged before completing treatment, the director must give the OAP four days notice. But the person can be discharged without four days notice, with the agreement of OAP, if it is necessary to protect the health or safety of staff or other program participants.

If a person does not comply with the conditions, the OAP must notify the court and the court may terminate the suspension and proceed with prosecution after a hearing.

PRETRIAL ALCOHOL EDUCATION PROGRAM

The pretrial alcohol education program is for defendants charged with their first drunk driving offense. An alleged offender can participate in the system if he has not been previously convicted certain other offenses, including second-degree manslaughter or assault with a motor vehicle or offenses similar to these in other states. The court must keep the court files of applicants and participants confidential if they have paid the $50 application fee (unless waived) and stated under oath that they have not been previously convicted of the specified offenses.

The court must dismiss the charges against anyone who successfully completes the program. For defendants who do not successfully complete the program, the court must order its files unsealed, enter a plea of not guilty on the defendant's behalf, and place the case on the trial list (CGS 54-56g).

PRETRIAL FAMILY VIOLENCE EDUCATION PROGRAM

The pretrial family violence education program is for people who are charged with family violence crimes. A defendant can ask the court to place him in the program. If placed in the program, the defendant is released to the custody of a family violence intervention unit for up to two years under such conditions as the court orders. If he successfully completes the program, the charges will be dismissed. If he violates the program's conditions, he will be brought to trial. A person is eligible for the program if:

1. the crime charged is not a class A, B, or C felony, an unclassified felony that carries more than a 10 year sentence, or, unless good cause is shown, a class D felony, or an unclassified felony carrying a penalty of at least five years.

2. he has not previously taken the program.

3. he has not been convicted of, or accepted accelerated rehabilitation for, a family violence crime committed after October 1, 1986.

The law requires the court to notify the victim of the defendant's request for the program and, if possible, give the victim an opportunity to be heard. The defendant must, if he is able, pay a $200 fee to the court to take the program (CGS 46b-38c(g) & (h)).

SCHOOL VIOLENCE PREVENTION PROGRAM (CGS 54-56j)

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.

Criminal Diversion Program

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.

If the Bail Commission confirms the student's eligibility, he must be referred to OAS for evaluation and placement in an appropriate school violence prevention program for one year. If the commission informs the court the student is ineligible, or the court determines he is ineligible, or the program provider certifies the student did not successfully complete the program, the court must unseal the file, enter a not guilty plea on the student's behalf, and immediately place the case on the trial list.

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.

Delinquency Diversion Program

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.

The court may order the suspension of the delinquency proceedings for one year and order the child to participate in a school violence prevention program if it finds (1) the child needs and is likely to benefit from the program, and (2) it will advance the interests of justice.

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.

Program Supervision and Completion. The child must be supervised by a juvenile probation officer while in the program. The officer must monitor the child's compliance with the court's orders.

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.

YOUTHFUL OFFENDER STATUS (CGS 54-76b ET.SEQ.)

Eligibility Standards

Someone age 16 or 17 is ineligible for youthful offender status if he:

1. is charged with a class A felony;

2. is charged with a violation of:

a. risk of injury to a minor involving sex (CGS 53-21 (2)),

b. sexual assault in the first degree (CGS 53a-70),

c. aggravated sexual assault in the first degree (CGS 53a-70a),

d. sexual assault in a spousal or cohabiting relationship (CGS 53a-70b),

e. sexual assault in the second degree (CGS 53a-71),

f. sexual assault in the third degree (CGS 53a-72a), or

g. sexual assault in the third degree with a firearm (CGS 53a-72b);

3. was previously convicted of a felony; adjudged a serious juvenile offender a serious juvenile repeat offender or a youthful offender; or

4. was previously afforded the AR program.

Trial to Determine Youthful Offender Status

If the defendant pleads not guilty, or if the court on its own motion directs that such a plea be accepted, the defendant must be tried by the court without a jury to decide whether he should be adjudged a youthful offender. If the defendant pleads guilty to the charge of being a youthful offender or if the court finds that he committed the acts he is charged with, it must adjudge him a youthful offender (CGS 54-76e).

Disposition Upon Adjudication as a Youthful Offender

After a person is adjudged a youthful offender, the court may:

1. commit him to a religious, charitable, or correctional institution authorized by law to receive people over age 16 for a term up to the maximum one authorized for the crime he was accused of;

2. impose a fine of up to $1,000;

3. impose a sentence of conditional or unconditional discharge;

4. impose a sentence of community service;

5. impose a prison sentence up to the term authorized by law for the crime he was accused of;

6. suspend any sentence imposed entirely or after a period set by the court;

7. order drug or alcohol treatment; or

8. transfer him to the jurisdiction of a drug court, if available (CGS 54-76j).

GC:ts