To be considered for Diversion programs, what must the accused do?

Topic:
SENTENCING; CRIMINALS; JUVENILE Delinquency; PRETRIAL Procedure;
Location:
SENTENCING - Alternative SANCTIONS;

March 15, 2002		2002-R-0291
ELIGIBILITY FOR PRE-TRIAL DIVERSION PROGRAMS
By: George Coppolo, Primary Attorney

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

SUMMARY

We have identified 7 pretrial diversion programs: accelerated rehabilitation, pretrial drug education, customs service labor, treatment of drug and booze offenders in lieu of prosecution, pretrial alcohol diversion, pretrial family unit violence education, and pretrial schoolhouse violence diversion.

Accelerated rehabilitation (AR) is a program for people accused of crimes "not of a serious nature". The court has discretion whether to let a defendant to use the plan. Simply a person is ineligible if he (1) was previously bedevilled of a crime or certain motor vehicle violations; (2) used the plan before, (3) has been adjudged a youthful offender during the past five years; (four) has been charged with certain drug offenses and is eligible for the pretrial drug teaching plan or has had it invoked twice before; (5) has been charged with a family violence law-breaking and is eligible for the pretrial family instruction program or has had that program invoked in his favor earlier; or (half dozen) has been charged with sure serious offenses.

The pretrial drug educational activity programme is for people charged with possession of drugs or drug paraphernalia. A person is ineligible if he previously participated in the programme 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 non eligible. But past participants in the drug education programme can participate. The plan can be a pretrial diversion, role of any sentence of provisional discharge, or a condition of probation.

Courts are also authorized nether a separate statutory programme to order offenders who are drug-or-alcohol-dependent into treatment in lieu of prosecution or incarceration. The pretrial diversion aspect of the programme covers all drug sale and possession crimes. A person charged with driving under the influence, set on in the second degree with a motor vehicle, or a form 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 plan covered by before versions of this constabulary is not eligible. Just the court may waive these eligibility rules.

The pretrial alcohol didactics 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 caste with a motor vehicle, or driving while nether the influence; or

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

A person is as well ineligible if the alleged drunk driving violation acquired serious physical injury to some other, unless he can show good cause.

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

ane. is charged with a class A, B, or C felony, an unclassified felony that carries more than a 10 year judgement, or, unless skilful crusade is shown, a form 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 accustomed accelerated rehabilitation for, a family violence crime committed after October 1, 1986.

The school violence diversion plan 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 holding or at a school-sponsored activity. There is a similar program for children under 16 accused of delinquent acts involving the use or threatened apply of violence in or on school belongings or at a schoolhouse-sponsored activity. To exist eligible for the plan, 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 non possess whatsoever firearms, dangerous weapons, drugs, or other belongings or materials, which are illegal for them to possess.

The youthful offender program is an alternative style to handle people aged 16 or 17 who are charged with a crime. A person is not eligible for this program if he: (one) is charged with a class A felony or sure other serious offenses; (two) has previously been (a) bedevilled 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;

iii. is charged with a class C felony, unless skilful crusade is shown;

4. is charged with:

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

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

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

d. assail in the second caste with a motor vehicle (CGS � 53a-60d);

eastward. sexual attack in the first caste (CGS � 53a-70);

f. aggravated sexual assail in the offset degree (CGS � 53a-70a);

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

h. sexual set on in the second degree (CGS � 53a-71);

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

j. sexual assault in the 3rd degree with a firearm (CGS � 53a-72b);

five. has a previous conviction of a crime;

half dozen. has a previous record of a violation of :

a. diverse motor vehicle document of title offenses (CGS � 14-196),

b. operating a motor vehicle with a suspended license for boozer driving and drunk driving related offenses resulting in decease 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 offense (CGS � 46b-38a ) and is eligible for the pretrial family violence education plan or has had that program invoked on his behalf before;

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

9. has used the AR plan earlier (CGS �� 54-56e (b) and (c)).

AR plan participants waive their right to a speedy trial. The courtroom places them under the supervision of the Part 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 Wellness 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 plan or the pretrial community service labor programme. The courtroom may approve the awarding after considering the prosecutor ' s recommendations. Eligible applicants must pay a $350 nonrefundable fee, which the courtroom must waive for indigency. The court must seal the records of any applicant who states nether oath that he has not previously participated in the programme.

One time 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 bond commissioner thinks information technology appropriate, ane that has standards at least like to the contract provider'southward 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 exercise non apply for dismissal, the court may dismiss the charges on its ain motion if the program was successfully completed. Upon the participant's motion and a showing of good cause, the courtroom may extend the placement for any reasonable period needed to complete information technology (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 by participants in the drug education program can participate, equally long equally they have non twice previously been placed in it. The program tin can exist a pretrial diversion for those who take not previously been in it, or a condition of probation. The plan is within the Office of Developed Probation (OAP), established by the director of that office, and subject to the approval of the main court ambassador. The program includes unpaid labor for government such as picking upwards 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 append prosecution and place him in it. If he satisfactorily completes the program, the court must dismiss the charges against him. If the plan provider certifies to the court that he did not successfully complete it, or is no longer acquiescent to participation in information technology, the court must identify the instance 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 2nd violation involving a guilty plea and conviction (CGS � 53a-39c).

Treatment OF DRUG OR ALCOHOL DEPENDENT OFFENDERS IN LIEU OF PROSECUTION

Courts are authorized nether a separate statutory program to order offenders who are drug or booze dependent into treatment in lieu of prosecution or incarceration (CGS � 17a-692 to 17a-701). The pretrial diversion aspect of the plan 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 grade A, B, or C felony is not eligible for suspended prosecution and treatment. In addition, anyone who was previously ordered treated under this plan or nether 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 non eligible. But, the courtroom may waive these eligibility rules (CGS � 17a-696).

Handling Evaluation

The court, on its own motion or that of the state's attorney, or a person charged with or convicted (but non yet sentenced) of a crime, may order an examination to make up one's mind if a person is alcohol- or drug-dependent and eligible for treatment. A probation officer may also guild such exam every bit part of a presentence investigation.

The constabulary 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 law-breaking. If the examiner determines that the person was dependent, the examiner must look at the person's history and design of dependency and whether he needs and would benefit from treatment. The examiner must study his recommendations to the courtroom, the OAP, the country ' s chaser, and defence 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 volition be available in a treatment program. The date cannot be more than 45 days from the date of the examination report.

A "treatment plan" is ane operated by the DMHAS or canonical by the commissioner of that department or Md for the treatment of the concrete and psychological effects of booze or drug-dependency. Information technology does not include a program that provides only detoxification services.

Suspended Prosecution

An eligible person may brand a motion for suspended prosecution and handling after the court receives the test report. The court may social club prosecution suspended and handling for an eligible person if information technology finds that: (1) the person was alcohol-or drug-dependent at the fourth dimension of the criminal offense, (two) he needs and is probable to do good from handling, and (3) pause of prosecution would advance the interest of justice.

Prosecution may be suspended for up to ii years. During the suspension, the person is placed in the custody of OAP for substance abuse handling. The court or OAP may crave that he comply with sure conditions of probation and exist tested for alcohol or drugs.

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

Completion Of Program

Upon completing treatment, the person may exist discharged by the handling plan ' southward manager. The managing 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 xxx days before the end of the break menstruum. It must too indicate whether it recommends dismissal of the accuse.

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

The court may modify or terminate the conditions of the suspension if it finds that a person has: (one) committed a tearing deed at the handling facility, (2) threatened to commit such an act, (3) committed a serious rule violation, (4) committed repeated violations of the programme ' south rules that inhibit his ability to function in the programme, (five) refused continually to participate, (six) asked to be removed from the plan, or (7) been unable to participate considering of a medical or psychosocial condition non appropriately treated by the program. The managing director has the burden of establishing the facts. If the intermission is terminated, the person may be prosecuted.

If the person is discharged before completing handling, the director must requite the OAP 4 days notice. Simply the person can be discharged without four days notice, with the agreement of OAP, if it is necessary to protect the wellness 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 cease the suspension and continue with prosecution after a hearing.

PRETRIAL ALCOHOL Educational activity PROGRAM

The pretrial alcohol education programme is for defendants charged with their first drunk driving offense. An alleged offender tin participate in the organization if he has not been previously convicted certain other offenses, including second-degree manslaughter or assault with a motor vehicle or offenses like to these in other states. The court must continue the court files of applicants and participants confidential if they have paid the $50 awarding fee (unless waived) and stated under oath that they accept 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 non successfully complete the plan, the court must order its files unsealed, enter a plea of not guilty on the defendant's behalf, and identify the example on the trial listing (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 tin can enquire the court to place him in the program. If placed in the program, the defendant is released to the custody of a family unit violence intervention unit for upwardly 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:

i. the offense charged is non a form A, B, or C felony, an unclassified felony that carries more than a 10 year sentence, or, unless good crusade is shown, a class D felony, or an unclassified felony conveying a penalty of at least five years.

2. he has non previously taken the program.

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

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

SCHOOL VIOLENCE PREVENTION Program (CGS � 54-56j)

The school violence prevention programme 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 schoolhouse property or at a schoolhouse-sponsored action. There is a similar programme for children under 16 defendant of delinquent acts involving the use or threatened utilise of violence in or on school property or at a schoolhouse-sponsored action. Each program consists of at to the lowest degree 8 group counseling sessions in anger management and nonviolent disharmonize resolution.

The student's parent or guardian must pay for the programme 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 Function of Culling Sanctions (OAS) must contract with service providers for the criminal diversion program, develop standards, and oversee appropriate programs.

Criminal Diversion Program

Eligibility Weather. To be eligible for the program, the student and his parent or guardian, must certify under penalty of false statement, that to the all-time of their cognition 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 besides hold to: (ane) the tolling of the statute of limitations for the crime; (2) a waiver of his right to a speedy trial; and (iii) participate in, and successfully complete, a school violence prevention program offered by a provider that has contracted with the OAS .

Application for Pretrial Diversion Plan. The court must gild the file sealed if the applicant states nether adjuration, in open court, under penalties of perjury that he has never been referred to the program before or been convicted of a fierce criminal offence at school or at a schoolhouse outcome in Connecticut or elsewhere. The court, later on 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 bidder's eligibility. The act allows the Bail Commission to rely on the applicant's sworn in-courtroom representations.

If the Bail Commission confirms the student'southward eligibility, he must be referred to OAS for evaluation and placement in an advisable school violence prevention plan for i 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 non successfully complete the plan, the court must unseal the file, enter a not guilty plea on the pupil's behalf, and immediately identify the instance on the trial listing.

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

Delinquency Diversion Program

Eligibility. To be eligible for the school violence prevention plan for juveniles in delinquency proceedings, the child must agree to satisfactorily complete a program of anger direction and irenic disharmonize resolution consisting of at to the lowest degree 8 group counseling sessions and comply with any court guild. The parents or guardians, as a condition of eligibility, must certify under penalty of false statement that, to the all-time of their cognition and conventionalities, neither they nor the kid possess whatever firearms, dangerous weapons, controlled substances, or other property or materials which are illegal for them to possess.

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

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

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

At any time before the program period ends, but no later than 1 calendar month before the finish of the program menstruation, the juvenile probation officer must notify the court of the program's impending decision for the pupil and report on whether the child has satisfactorily completed the plan and otherwise complied with all other courtroom ordered conditions.

The courtroom may dismiss the charges if it finds the child has done then. If the court determines the child has not washed then, information technology may stop the suspension of the delinquency proceedings, and the delinquency proceedings may continue.

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

Eligibility Standards

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

ane. is charged with a class A felony;

2. is charged with a violation of:

a. risk of injury to a minor involving sexual practice (CGS � 53-21 (ii)),

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

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

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

e. sexual set on in the second caste (CGS � 53a-71),

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

g. sexual assault in the 3rd 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 programme.

Trial to Determine Youthful Offender Status

If the defendant pleads non guilty, or if the courtroom on its own movement directs that such a plea be accustomed, the defendant must be tried by the court without a jury to decide whether he should exist 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, information technology 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 xvi for a term up to the maximum ane authorized for the crime he was accused of;

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

3. impose a judgement of conditional or unconditional belch;

iv. impose a sentence of community service;

5. impose a prison sentence upwardly to the term authorized by law for the law-breaking he was defendant of;

six. suspend any sentence imposed entirely or afterwards a period set by the court;

vii. order drug or booze treatment; or

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

GC:ts

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Source: https://www.cga.ct.gov/2002/rpt/2002-R-0291.htm

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