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Summary

Ohio June 2001 Draft:
Constitutional Amendment for Treatment of Substance-Abusing Offenders

Campaign for New Drug Policies

Based on its success with Proposition 36 in California, the Campaign for New Drug Policies is launching petition drives for similar initiatives in Ohio, Michigan, and Florida. National Families in Action provides the full text of the Ohio petition below. Watch this page for further developments as to funding, proponents, opponents, and other relevant information in the Ohio drive.

ARTICLE IV. Section 24

(INTENTS AND PURPOSES - LANGUAGE TO COME)

(A) TREATMENT MOTION AND HEARING

(1) If an offender is charged with illegal possession or use of a controlled substance, the offender may request treatment. The request shall include a waiver of the defendant's right to a speedy trial, the preliminary hearing, the time period within which the grand jury may consider an indictment against the offender, and arraignment, unless the hearing, indictment, or arraignment has already occurred. The court shall conduct a hearing to determine whether the offender is eligible under this section for treatment and shall stay all criminal proceedings related to the illegal possession or use of a controlled substance charge pending the outcome of the hearing. The court shall order an assessment of the offender by a qualified treatment professional for the purpose of determining the offender's suitability to one or more forms of treatment and recommending an appropriate treatment plan.

(2) At the conclusion of a hearing held pursuant to division (A)(1) of this section, the court shall enter its determination as to whether the offender is eligible for treatment. If the court finds under division (B) of this section that the offender is eligible for treatment, the court shall accept the offender's waiver of the right to a speedy trial, the preliminary hearing, the time period within which the grand jury may consider an indictment against the offender, and arraignment, unless the hearing, indictment, or arraignment has already occurred. In addition, the court shall stay all criminal proceedings related to the illegal possession or use of a controlled substance charge, and order the offender to comply with all terms and conditions imposed by the court pursuant to division (C) of this section. If the court finds that the offender is not eligible or if the offender does not consent to the terms and conditions imposed by the court pursuant to division (C) of this section, the criminal proceedings against the offender may proceed as if the offender's request for treatment had not been made.

(B) ELIGIBILITY FOR TREATMENT

(1) A first or second time offender is eligible for treatment if the court finds all of the following:

(a) The offender is charged with illegal possession or use of a controlled substance;

(b) The offender has not been convicted of or been imprisoned for a violent felony, within five years of committing the current offense; and,

(c) The offender has not been sentenced to a term of incarceration that would interfere with the offender's participation in the treatment plan;

(2) A repeat offender is eligible for treatment if the court finds all of the following:

(a) The offender is charged with illegal possession or use of a controlled substance;

(b) The offender has not been convicted of or been imprisoned for a violent felony, within five years of committing the current offense;

(c) The offender has not been sentenced to a term of incarceration that would interfere with the offender's participation in the treatment plan; and,

(d) The requested treatment is in the best interests of the offender and the public.

(3) If an offender found to be ineligible for treatment is convicted of the charge of illegal possession or use of a controlled substance, the offender may be sentenced on the charge of illegal possession or use of a controlled substance to a maximum of ninety days of incarceration.

(4) For any defendant who qualifies for treatment under this article, the court may amend and reclassify any felony charge or conviction for illegal possession or use of a controlled substance to a misdemeanor if the court finds it is in the interest of justice to do so.

(C) TREATMENT PLAN

If the court grants an offender's request for treatment:

(1) The qualified treatment professional designated by the court under division (A)(I) of this section, after conducting an assessment of the offender, shall determine the type and duration of the treatment program or programs that the offender shall receive, the methods of monitoring the offender's progress while in treatment, and a list of treatment providers capable of administering the proposed treatment program or programs. The qualified treatment professional shall prepare and submit this treatment plan to the court. The court shall review this treatment plan and shall adopt the treatment plan as submitted, if the court finds that the plan complies with this section. If the treatment plan as submitted is found not to comply with section, the court shall do one of the following:

(a) Request the designated qualified treatment professional to reconsider and resubmit a treatment plan to the court; or,

(b) Make necessary amendments to the treatment plan and adopt the treatment plan as amended, provided that defense counsel registers no objection to the amended plan.

(2) The court shall designate and appoint an appropriate treatment provider to administer the treatment plan adopted by the court from the list of treatment providers included in the qualified treatment professional's treatment plan. The qualified treatment professional who submitted the treatment plan shall not be appointed as the treatment provider unless no other treatment provider is available to administer the treatment plan.

(3) The offender shall be required to participate in and cooperate with the treatment program of the designated treatment provider for a period of time designated in the treatment plan, not to exceed 12 months.

(4) The court may require an offender who is reasonably able to do so to pay all or a portion of the cost of the offender's participation in a treatment plan. However, such payment requirement shall not be so burdensome as to make participation in a treatment plan inaccessible, nor shall such payment requirement be excessive or punitive in nature.

(5) The offender shall not be required to waive confidentiality of medical or treatment information as a condition for participating in a treatment plan.

(6) The offender may be required to submit to random testing for drug and alcohol use as part of the treatment plan, provided that such testing shall be conducted by the designated treatment providers and that the results of such testing shall be used for treatment purposes only.

(D) SUCCESSFUL COMPLETION OF PROGRAM

(1) If the court grants an offender's request for treatment and the treatment provider notifies the court that the offender has successfully completed the treatment plan for the offender, the court shall dismiss the proceedings against the offender.

(2) Successful completion of the treatment plan under this section shall be without adjudication of guilt and is not a criminal conviction for purposes of any disqualification or disability imposed by law and upon conviction of a crime. Upon successful completion of the treatment plan, the court shall order the sealing of records related to the offense in question, except that law enforcement agencies may keep records of offenders' arrests, convictions and treatments for illegal possession or use of a controlled substance.

(3) If an offender has already been convicted of the illegal possession or use of a controlled substance charge that gave rise to the request for treatment, such conviction shall be expunged upon successful completion of the treatment plan.

(4) The successful completion of the treatment plan or the expungement of a conviction under this section does not relieve an offender of the obligation to disclose the arrest and any expunged conviction in response to any direct question contained in any questionnaire or application for public office, for a position as a law enforcement officer, or for purposes of serving on a jury.

(E) FUNDING FOR TREATMENT

(Language re funding mechanism to be inserted here)
Must cover such issues as:
- Amount and duration of fixed appropriation
- agencies (state/local) handling/receiving funds
- types of programs eligible for funds
- permissible ratios of treatment/non-treatment expenses
- annual audits/long-term evaluation procedures

(F) MODIFICATION OF TREATMENT PLAN

If at any point during the course of treatment the treatment provider notifies the court or one of its agents that the offender is unsuited to the treatment being provided, but may be amenable to other treatments or related programs, the court, after notice and an opportunity for hearing, may modify the terms of the treatment plan to ensure that the offender receives the alternative treatment or program. If at any point during the course of treatment the treatment provider notifies the court or one of its agents that it is impracticable for the treatment provider to continue to administer the treatment plan, the court, after notice and an opportunity for hearing, may designate a new treatment provider to ensure that the offender continues to receive appropriate treatment pursuant to the treatment plan.

(G) REMOVAL FROM TREATMENT PLAN

(1) Consequences of Removal

(a) If an offender who has not been convicted of the illegal possession or use of a controlled substance charge that gave rise to the request for treatment is removed from a treatment plan pursuant to the provisions of this subdivision, the offender may be tried, and if convicted may be sentenced to up to ninety days in county jail.

(b) If an offender who has been convicted of the illegal possession or use of a controlled substance charge that gave rise to the request for treatment is removed from a treatment plan pursuant to the provisions of this subdivision, the offender may be sentenced to up to ninety days in county jail.

(2) Non-Drug Related Violations. Where an offender participates in a treatment plan, and violates the terms of that treatment plan either by committing an offense that is not an illegal possession or use of a controlled substance offense, or by violating a non-drug-related condition of the treatment plan, and the state moves to remove the offender from the treatment plan, the court shall conduct a hearing to determine whether the offender shall be removed from the treatment plan. If the offender is convicted of a new offense that is not illegal possession or use of a controlled substance, the court may remove the offender from the treatment plan. If the alleged violation of a non-drug-related condition of the treatment plan is provided by clear and convincing evidence, the court may remove the offender from the treatment plan.

(3) Drug Related Violations.

(a) Where an offender participates in a treatment plan, and commits multiple or severe drug-related violations of that plan, the state may petition the court to consider removal of the offender from treatment. Upon receiving such petition, if the court determines that the alleged violation or violations indicate a serious disruption of the treatment plan, the court shall hold a hearing to consider evidence of the violation or violations and removal of the offender from treatment. If the court does not deem the alleged violation or violations to indicate a serious disruption of the treatment plan, the court shall not hold an evidentiary hearing on the state's petition.

(b) If, at a hearing on a petition to consider removal of the offender from treatment, the court finds by clear and convincing evidence that an offender's alleged drug-related violation or violations did occur, and did indicate a serious disruption of the treatment plan, the court shall proceed as follows:

(i) If the court has not previously found the offender to have committed a serious disruption of the treatment plan during the current course of treatment, the court shall consider evidence that the offender poses a danger to the safety of others. If the court so finds by clear and convincing evidence, the court may remove the offender from treatment. If the court does not find that the offender poses a danger to the safety of others, the court may amend the offender's treatment plan to modify or intensify the form of treatment

(ii) If the court has once previously found the offender to have committed a serious disruption of the treatment plan during the current course of treatment, the court shall consider evidence that the offender is unamenable to treatment. If the court so finds by clear and convincing evidence, the court may remove the offender from treatment. If the court does not find that the offender is unamenable to treatment, the court may amend the offender's treatment plan to modify or intensify the form of treatment.

(iii) If the court has more than once previously found the offender to have committed a serious disruption of the treatment plan during the current course of treatment, the court may remove the offender from treatment. If the court does not remove the offender from treatment, the court may amend the offender's treatment plan to modify or intensify the form of treatment.

(4) Withdrawal by Treatment Provider. If at any point during the course of treatment the treatment provider notifies the court that the offender's conduct has made it impracticable for the treatment provider to continue to administer any treatment plan for the offender, the court shall permit the treatment provider to cease administering a treatment plan for the offender. Upon such a withdrawal by a treatment provider, the court shall conduct a hearing to determine whether the offender shall be removed from the treatment plan. At the hearing, if the state proves by a preponderance of the evidence that there is no treatment program that the offender could reasonably expect to complete successfully, the court may remove the offender from the treatment plan. Otherwise, the court shall designate a new treatment provider and may amend the offender's treatment plan to modify or intensify the form of treatment.

(H) LIMITED SCOPE OF TREATMENT RIGHT

Nothing in this section prohibits the general assembly from authorizing treatment or treatment in lieu of conviction for persons not otherwise eligible under this section.

(I) DEFINITIONS. As used in this section.

(1) "Illegal possession or use of a controlled substance" includes drug possession or use and other non-violent illegal acts incidental to drug possession or use, such as possession of drug paraphernalia or the purchase of a controlled substance. A person may not be deemed to have committed such an offense and to be eligible for the programs outlined in this article if, in the same proceeding, the person has committed:

(a) any felony other than an illegal possession or use offense, or any misdemeanor involving theft, violence or the treat of violence;

(b) an offense of trafficking, sale or manufacture of controlled substances;

(c) an offense of possession of drugs for the purpose of trafficking, sale or manufacture of controlled substances; or,

(d) an offense of operating a motor vehicle under the influence of alcohol or a controlled substance.

(2) "Treatment program" or "treatment" mean a state-approved treatment and/or rehabilitation treatment program, or set of programs, designed to reduce or eliminate substance abuse or drug dependency and to increase employability. Such program or programs may include outpatient treatment, half-way house treatment, narcotic replacement therapy, drug education or prevention courses and/or limited inpatient or residential drug treatment as needed to address special detoxification or relapse situations or severe dependence. Such program or programs may also include, as deemed appropriate, access to vocational training, literacy training, family counseling, mental health services, or similar support services. The terms "treatment program" or "treatment" shall not include programs offered in a prison or jail facility.

(3) "Treatment provider" means an appropriately licensed provider, certified facility, or licensed and credentialed professional that provides a "treatment program."

(4) "Qualified treatment professional" means an individual with specialized knowledge, skill, experience, training, or education in the areas of psychology, psychiatry or addiction therapy who has the expertise needed to conduct the addiction and life skills assessments necessary to determine an offender's suitability to one or more forms of treatment and to recommend an appropriate treatment plan.

(5) "Violent felony" means any felony that includes as one or more elements of the offense proof that the offender has caused any injury, illness, or other physiological impairment to any person, regardless of its gravity.

(6) "Repeat offender" means an offender who commits an offense of illegal possession or use of a controlled substance and:

(a) Has had two or more prior convictions for illegal possession or use of a controlled substance after the enactment of this section; or,

(b) Has participated in two or more prior treatments in lieu of conviction under this section.

(7) "First or second time offender" means an offender who commits an offense of illegal possession or use and is not a repeat offender.

(8) "Unamenable to treatment" means that an offender;

(a) has repeatedly committed serious violations of treatment program rules that inhibit the offender's ability to function in the treatment program.

(b) has continually refused to participate in the treatment program, or

(c) has asked to be removed from the treatment program.