HOUSE BILL NO. 516
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H0516................................by JUDICIARY, RULES AND ADMINISTRATION
SUBSTANCE ABUSE CRIMES - Amends existing law to provide additional options
for sentencing for certain substance abuse related crimes; and to include
additional information required to be reported by the Supreme Court and the
Department of Correction to the Legislature and the Governor regarding
mental health and substance abuse treatment.
02/12 House intro - 1st rdg - to printing
02/13 Rpt prt - to Jud
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-ninth Legislature Second Regular Session - 2008
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 516
BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
1 AN ACT
2 RELATING TO CRIMINAL OFFENSES AND SENTENCING; AMENDING SECTION 37-2732B, IDAHO
3 CODE, TO PROVIDE ADDITIONAL OPTIONS FOR SENTENCING; AMENDING SECTION
4 37-2739A, IDAHO CODE, TO PROVIDE ADDITIONAL OPTIONS FOR SENTENCING AND TO
5 MAKE A TECHNICAL CORRECTION; AMENDING SECTION 19-2524, IDAHO CODE, TO
6 INCLUDE ADDITIONAL INFORMATION REQUIRED TO BE REPORTED BY THE SUPREME
7 COURT AND THE DEPARTMENT OF CORRECTION TO THE LEGISLATURE AND GOVERNOR
8 REGARDING MENTAL HEALTH AND SUBSTANCE ABUSE TREATMENT; AND PROVIDING AN
9 EFFECTIVE DATE AND APPLICATION.
10 Be It Enacted by the Legislature of the State of Idaho:
11 SECTION 1. That Section 37-2732B, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 37-2732B. TRAFFICKING -- MANDATORY SENTENCES. (a) Except as authorized in
14 this chapter, and notwithstanding the provisions of section 37-2732, Idaho
15 Code:
16 (1) Any person who knowingly manufactures, delivers, or brings into this
17 state, or who is knowingly in actual or constructive possession of, one
18 (1) pound of marijuana or more, or twenty-five (25) marijuana plants or
19 more, as defined in section 37-2701, Idaho Code, is guilty of a felony,
20 which felony shall be known as "trafficking in marijuana." If the quantity
21 of marijuana involved:
22 (A) Is one (1) pound or more, but less than five (5) pounds, or con-
23 sists of twenty-five (25) marijuana plants or more but fewer than
24 fifty (50) marijuana plants, regardless of the size or weight of the
25 plants, such person shall be sentenced to a mandatory minimum fixed
26 term of imprisonment of one (1) year and fined not less than five
27 thousand dollars ($5,000);
28 (B) Is five (5) pounds or more, but less than twenty-five (25)
29 pounds, or consists of fifty (50) marijuana plants or more but fewer
30 than one hundred (100) marijuana plants, regardless of the size or
31 weight of the plants, such person shall be sentenced to a mandatory
32 minimum fixed term of imprisonment of three (3) years and fined not
33 less than ten thousand dollars ($10,000);
34 (C) Is twenty-five (25) pounds or more, or consists of one hundred
35 (100) marijuana plants or more, regardless of the size or weight of
36 the plants, such person shall be sentenced to a mandatory minimum
37 fixed term of imprisonment of five (5) years and fined not less than
38 fifteen thousand dollars ($15,000).
39 (D) The maximum number of years of imprisonment for trafficking in
40 marijuana shall be fifteen (15) years, and the maximum fine shall be
41 fifty thousand dollars ($50,000).
42 (E) For the purposes of this section, the weight of the marijuana is
43 its weight when seized or as determined as soon as practicable after
2
1 seizure, unless the provisions of subsection (c) of this section
2 apply.
3 (2) Any person who knowingly manufactures, delivers, or brings into this
4 state, or who is knowingly in actual or constructive possession of,
5 twenty-eight (28) grams or more of cocaine or of any mixture or substance
6 containing a detectable amount of cocaine is guilty of a felony, which
7 felony shall be known as "trafficking in cocaine." If the quantity
8 involved:
9 (A) Is twenty-eight (28) grams or more, but less than two hundred
10 (200) grams, such person shall be sentenced to a mandatory minimum
11 fixed term of imprisonment of three (3) years and fined not less than
12 ten thousand dollars ($10,000);
13 (B) Is two hundred (200) grams or more, but less than four hundred
14 (400) grams, such person shall be sentenced to a mandatory minimum
15 fixed term of imprisonment of five (5) years and fined not less than
16 fifteen thousand dollars ($15,000);
17 (C) Is four hundred (400) grams or more, such person shall be sen-
18 tenced to a mandatory minimum fixed term of imprisonment of ten (10)
19 years and fined not less than twenty-five thousand dollars ($25,000).
20 (D) The maximum number of years of imprisonment for trafficking in
21 cocaine shall be life, and the maximum fine shall be one hundred
22 thousand dollars ($100,000).
23 (3) Any person who knowingly manufactures or attempts to manufacture
24 methamphetamine and/or amphetamine is guilty of a felony which shall be
25 known as "trafficking in methamphetamine and/or amphetamine by manufactur-
26 ing." Any person convicted of trafficking in methamphetamine and/or
27 amphetamine by attempted manufacturing shall be sentenced to a mandatory
28 minimum fixed term of imprisonment of two (2) years and not to exceed fif-
29 teen (15) years imprisonment and fined not less than ten thousand dollars
30 ($10,000). Any person convicted of trafficking in methamphetamine and/or
31 amphetamine by manufacturing shall be sentenced to a mandatory minimum
32 fixed term of imprisonment of five (5) years and not to exceed life
33 imprisonment and fined not less than twenty-five thousand dollars
34 ($25,000). The maximum number of years of imprisonment for trafficking in
35 methamphetamine and/or amphetamine by manufacturing shall be life, and the
36 maximum fine shall be one hundred thousand dollars ($100,000).
37 (4) Any person who knowingly delivers, or brings into this state, or who
38 is knowingly in actual or constructive possession of, twenty-eight (28)
39 grams or more of methamphetamine or amphetamine or of any mixture or sub-
40 stance containing a detectable amount of methamphetamine or amphetamine is
41 guilty of a felony, which felony shall be known as "trafficking in metham-
42 phetamine or amphetamine." If the quantity involved:
43 (A) Is twenty-eight (28) grams or more, but less than two hundred
44 (200) grams, such person shall be sentenced to a mandatory minimum
45 fixed term of imprisonment of three (3) years and fined not less than
46 ten thousand dollars ($10,000);
47 (B) Is two hundred (200) grams or more, but less than four hundred
48 (400) grams, such person shall be sentenced to a mandatory minimum
49 fixed term of imprisonment of five (5) years and fined not less than
50 fifteen thousand dollars ($15,000);
51 (C) Is four hundred (400) grams or more, such person shall be sen-
52 tenced to a mandatory minimum fixed term of imprisonment of ten (10)
53 years and fined not less than twenty-five thousand dollars ($25,000).
54 (D) The maximum number of years of imprisonment for trafficking in
55 methamphetamine or amphetamine shall be life, and the maximum fine
3
1 shall be one hundred thousand dollars ($100,000).
2 (5) Any person who knowingly manufactures, delivers, brings into this
3 state, or who is knowingly in actual or constructive possession of the
4 below-specified quantities of any of the following immediate precursors to
5 methamphetamine or amphetamine (namely ephedrine, methylamine, methyl
6 formamide, phenylacetic acid, phenylacetone, or pseudoephedrine) as
7 defined in section 37-2707(g)(1), Idaho Code, or any compound, mixture or
8 preparation which contains a detectable quantity of these substances, is
9 guilty of a felony which shall be known as "trafficking in immediate
10 precursors of methamphetamine or amphetamine." If the quantity:
11 (A) Of ephedrine is five hundred (500) grams or more;
12 (B) Of methylamine is one-half (1/2) pint or more;
13 (C) Of methyl formamide is one-quarter (1/4) pint or more;
14 (D) Of phenylacetic acid is five hundred (500) grams or more;
15 (E) Of phenylacetone is four hundred (400) grams or more;
16 (F) Of pseudoephedrine is five hundred (500) grams or more;
17 such person shall be sentenced to a mandatory minimum fixed term of
18 imprisonment of ten (10) years and fined not less than twenty-five thou-
19 sand dollars ($25,000). The maximum number of years of imprisonment for
20 trafficking in immediate precursors of methamphetamine or amphetamine in
21 the quantities specified in paragraphs (A) through (F) of this subsection
22 (5) shall be life, and the maximum fine shall be one hundred thousand dol-
23 lars ($100,000). If the quantity of pseudoephedrine is twenty-five (25)
24 grams or more, but less than five hundred (500) grams, such person shall
25 be sentenced to a term of imprisonment of up to ten (10) years and fined
26 not more than twenty-five thousand dollars ($25,000).
27 (6) Any person who knowingly manufactures, delivers or brings into this
28 state, or who is knowingly in actual or constructive possession of, two
29 (2) grams or more of heroin or any salt, isomer, or salt of an isomer
30 thereof, or two (2) grams or more of any mixture or substance containing a
31 detectable amount of any such substance is guilty of a felony, which fel-
32 ony shall be known as "trafficking in heroin." If the quantity involved:
33 (A) Is two (2) grams or more, but less than seven (7) grams, such
34 person shall be sentenced to a mandatory minimum fixed term of
35 imprisonment of three (3) years and fined not less than ten thousand
36 dollars ($10,000);
37 (B) Is seven (7) grams or more, but less than twenty-eight (28)
38 grams, such person shall be sentenced to a mandatory minimum fixed
39 term of imprisonment of ten (10) years and fined not less than fif-
40 teen thousand dollars ($15,000);
41 (C) Is twenty-eight (28) grams or more, such person shall be sen-
42 tenced to a mandatory minimum fixed term of imprisonment of fifteen
43 (15) years and fined not less than twenty-five thousand dollars
44 ($25,000).
45 (D) The maximum number of years of imprisonment for trafficking in
46 heroin shall be life, and the maximum fine shall be one hundred thou-
47 sand dollars ($100,000).
48 (7) A second conviction for any trafficking offense as defined in subsec-
49 tion (a) of this section shall result in a mandatory minimum fixed term
50 that is twice that otherwise required under this section.
51 (8) Notwithstanding any other provision of law, with respect to any per-
52 son who is found to have violated the provisions of this section, adjudi-
53 cation of guilt or the imposition or execution of sentence shall not be
54 suspended, deferred, or withheld, nor shall such person be eligible for
55 parole prior to serving the mandatory minimum fixed term of imprisonment
4
1 prescribed in this section. Further, the court shall not retain jurisdic-
2 tion.
3 (b) Any person who agrees, conspires, combines or confederates with
4 another person or solicits another person to commit any act prohibited in sub-
5 section (a) of this section is guilty of a felony and is punishable as if he
6 had actually committed such prohibited act.
7 (c) For the purposes of subsections (a) and (b) of this section the
8 weight of the controlled substance as represented by the person selling or
9 delivering it is determinative if the weight as represented is greater than
10 the actual weight of the controlled substance.
11 (d) A person guilty of an offense determined by the court to be primar-
12 ily the result of addiction may be sentenced pursuant to section 19-2513,
13 Idaho Code, if a treatment plan pursuant to section 19-2524, Idaho Code, is
14 included as a condition of the sentence.
15 SECTION 2. That Section 37-2739A, Idaho Code, be, and the same is hereby
16 amended to read as follows:
17 37-2739A. MANDATORY MINIMUM PENALTY. Any person who is convicted of vio-
18 lating the felony provisions of section 37-2732(a), Idaho Code, by distribut-
19 ing controlled substances to another person, who is not subject to a fixed
20 minimum term under section 37-2739B, Idaho Code, and who has previously been
21 convicted within the past ten (10) years in a court of the United States, any
22 state or a political subdivision of one (1) or more felony offenses of deal-
23 ing, selling or trafficking in controlled substances on an occasion or occa-
24 sions different from the felony violation of section 37-2732(a), Idaho Code,
25 and which offense or offenses were punishable in such court by imprisonment in
26 excess of one (1) year, shall be sentenced to the custody of the state board
27 of correction for a mandatory minimum period of time of not less than three
28 (3) years or for such greater period as the court may impose up to a maximum
29 of life imprisonment. The mandatory minimum period of three (3) years incar-
30 ceration shall not be reduced and shall run consecutively to any other sen-
31 tence imposed by the court.
32 A person guilty of an offense determined by the court to be primarily
33 the result of addiction may be sentenced pursuant to section 19-2513, Idaho
34 Code, if a treatment plan pursuant to section 19-2524, Idaho Code, is included
35 as a condition of the sentence.
36 SECTION 3. That Section 19-2524, Idaho Code, be, and the same is hereby
37 amended to read as follows:
38 19-2524. SUBSTANCE ABUSE AND MENTAL HEALTH TREATMENT. (1) When a defend-
39 ant has pled guilty to or been found guilty of a felony, or when a defendant
40 who has been convicted of a felony has admitted to or been found to have com-
41 mitted a violation of a condition of probation, the court, prior to the sen-
42 tencing hearing or the hearing on revocation of probation, may order the
43 defendant to undergo a substance abuse assessment and/or a mental health exam-
44 ination.
45 (2) If a substance abuse assessment ordered pursuant to this section
46 indicates that the defendant is a drug addict or alcoholic, as those terms are
47 defined in section 39-302, Idaho Code, then the assessment submitted to the
48 court shall also include a plan of treatment. If the court concludes at sen-
49 tencing that the defendant is a drug addict or alcoholic, as those terms are
50 defined in section 39-302, Idaho Code, and if the court places the defendant
51 on probation, the court may order the defendant, as a condition of probation,
5
1 to undergo treatment consistent with the plan of treatment, subject to modifi-
2 cation of the plan of treatment by the court.
3 (3) (a) If a mental health examination is ordered pursuant to this sec-
4 tion, the report of the mental health examination shall include the fol-
5 lowing:
6 (i) A description of the nature of the examination;
7 (ii) A diagnosis, evaluation or prognosis of the mental condition of
8 the defendant;
9 (iii) An analysis of the degree of the defendant's illness or defect
10 and level of functional impairment;
11 (iv) A consideration of whether treatment is available for the
12 defendant's mental condition;
13 (v) An analysis of the relative risks and benefits of treatment or
14 nontreatment;
15 (vi) A consideration of the risk of danger which the defendant may
16 create for the public if at large; and
17 (vii) A plan of treatment if the mental health examination indicates
18 that:
19 1. The defendant suffers from a severe and reliably diagnosable
20 mental illness or defect;
21 2. Without treatment, the immediate prognosis is for major dis-
22 tress resulting in serious mental or physical deterioration of
23 the defendant;
24 3. Treatment is available for such illness or defect; and
25 4. The relative risks and benefits of treatment or nontreatment
26 are such that a reasonable person would consent to treatment.
27 (b) If the court, after receiving the mental health assessment and plan
28 of treatment, determines that additional information is necessary to
29 determine whether the factors listed above in subsection (3)(a) are pres-
30 ent, or to determine an appropriate plan of treatment, the court may order
31 an evaluation and/or recommendations for treatment to be furnished by a
32 psychiatrist, licensed physician or licensed psychologist.
33 (c) If the court concludes at sentencing that all of the factors listed
34 above in subsection (3)(a) are present, and if the court places the
35 defendant on probation, then the court may order as a condition of proba-
36 tion that the defendant undergo treatment consistent with the plan of
37 treatment, subject to modification of the plan of treatment by the court.
38 (4) Where the court has ordered either a substance abuse assessment or
39 mental health examination of the defendant pursuant to this section, the court
40 shall also order a criminogenic risk assessment of the defendant if such an
41 assessment is not provided in the presentence report. Any substance abuse
42 assessment or report of mental health examination shall, in addition to the
43 criminogenic risk assessment, be delivered to the court, the defendant and the
44 prosecuting attorney prior to the sentencing or the hearing on revocation of
45 probation.
46 (5) If the defendant is sentenced to the custody of the board of correc-
47 tion, then any substance abuse assessment, report of mental examination, plan
48 of treatment or criminogenic risk assessment shall be sent to the department
49 of correction along with the presentence report.
50 (6) The expenses of the assessments and examinations, including any eval-
51 uation or recommendations for treatment ordered under subsection (3)(a) of
52 this section, and any treatment ordered by the court pursuant to this section
53 shall be borne by the department of health and welfare. The department of
54 health and welfare shall be entitled to any payment received by the defendant
55 or to which he may be entitled for the assessments, examinations and treat-
6
1 ment, and to any payment from any public or private source available to the
2 department of health and welfare because of the assessments, examinations and
3 treatment provided to the defendant. The department of health and welfare is
4 authorized to promulgate rules for a schedule of fees to be charged to defend-
5 ants for the assessments, evaluations and treatments provided to the defend-
6 ants based upon the costs of such services and the ability of the defendants
7 to pay.
8 (7) Annually, the supreme court and the department of correction shall
9 include in their report to the joint finance-appropriations committee, the
10 senate judiciary and rules committee and the house judiciary, rules and admin-
11 istration committee and the governor information on the availability of
12 resources for sentencing alternatives outlined in this section including, but
13 not limited to, the number available and the need for the following resources:
14 (a) Adequately trained probation and parole officers;
15 (b) Transitional beds in work release centers and other residential tran-
16 sitional facilities in the seven (7) public health districts or six (6)
17 judicial districts of the state;
18 (c) Educational, psychological, vocational, mental health and substance
19 abuse programming personnel in community-based programs and in correc-
20 tional facilities, including county jails;
21 (d) Drug and alcohol assessment specialists, rehabilitation specialists
22 and case managers;
23 (e) Spaces in residential therapeutic community programs or other
24 evidence-based intensive treatment and rehabilitation programs in correc-
25 tional facilities as provided by the department of correction, or in
26 community-based settings as provided by the department of health and wel-
27 fare.
28 SECTION 4. This act shall be in full force and effect on and after July
29 1, 2008, and the amendments in Sections 1 and 2 of this act shall apply only
30 to those persons who shall commit an offense on or after July 1, 2008, and are
31 not intended to repeal or amend those provisions of the Idaho Code which apply
32 to persons committing an offense prior to July 1, 2008, which provisions shall
33 continue to apply, and further, that amendments in this act are not intended
34 to repeal or amend Sections 19-2520, 19-2520B, 19-2520C, 19-2520D or
35 19-2520E, Idaho Code. Provided that a defendant who committed an offense prior
36 to July 1, 2008, but sentenced after July 1, 2008, may voluntarily opt to have
37 the provisions of Sections 1 and 2 of this act apply to him during sentencing.
STATEMENT OF PURPOSE
RS 17856 C1
The purpose of this legislation is to provide treatment
focused alternative sentencing for certain mandatory minimum
sentences. This legislation will allow judges, where
appropriate, to sentence those whose crime was primarily the
result of addiction, to a treatment focused track so as to
more effectively rehabilitate offenders, reduce recidivism
and slow growth in Idaho's non-violent offender population.
FISCAL IMPACT
There is no fiscal impact under this legislation. There may
however be a reduction to some extent the number of
offenders sentenced to additional years in Idaho
correctional institutions under Idaho's mandatory minimum
sentences. Shorter sentences and reductions in recidivism
will free prison beds, reduce the need for prison space, and
create cost savings, while more effectively rehabilitating
offenders and returning them to productive lives.
Contacts:
Rep.Nicole LeFavour Rep. Lynn Luker Luker
Rep.Phil Hart Rep. Raul Labrador
Rep.Eric Anderson Rep. Dick Harwood
Phone: 208 724-0468
STATEMENT OF PURPOSE/FISCAL NOTE H 516