SENATE BILL 321

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Richard C. Martinez and Antonio "Moe" Maestas

FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE

AN ACT

RELATING TO CONTROLLED SUBSTANCES; ENACTING THE SUBSTANCE ABUSE AND CRIME PREVENTION ACT; PROVIDING SUBSTANCE ABUSE TREATMENT FOR PERSONS CHARGED WITH CERTAIN VIOLATIONS OF THE CONTROLLED SUBSTANCES ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. SHORT TITLE.--This act may be cited as the "Substance Abuse and Crime Prevention Act".

     SECTION 2. DEFINITIONS.--As used in the Substance Abuse and Crime Prevention Act:

          A. "qualified treatment professional" means a person with specialized knowledge, skill, experience, training or education in the area of psychology, psychiatry or addiction therapy who has the expertise to conduct the addiction and life skills assessment necessary to determine a person's suitability to one or more forms of treatment, including medication-assisted therapy, and to recommend an appropriate treatment plan; and

          B. "substance abuse treatment program" means a licensed or certified community substance abuse treatment program, including an outpatient treatment program, halfway house treatment program, day treatment program, veterans treatment program, medication-assisted therapy program, drug education course, drug prevention course, limited inpatient treatment program or residential drug treatment program. "Substance abuse treatment program" does not include drug treatment programs offered in prison or jail facilities.

     SECTION 3. STAY OF CRIMINAL PROCEEDINGS--SUBSTANCE ABUSE TREATMENT OPTION.--

          A. If a defendant is charged with a misdemeanor in magistrate or metropolitan court or a felony in district court for a violation of Subsection A, B, C or D of Section 30-31-23 NMSA 1978, the court may, after a hearing, with input from the state and after the defendant signs a written statement waiving the time limits for commencement of trial pursuant to court rules, stay all further proceedings with respect to the charge and order an assessment of the defendant by a qualified treatment professional for the purpose of determining the defendant's addiction severity and need for treatment and the types of drug treatment and social services that might be appropriate for the defendant. The assessment shall also include recommendations for an appropriate treatment plan. After receipt of the assessment, the court may refer the defendant to a substance abuse treatment program upon such reasonable conditions, consistent with the treatment plan, as the court may prescribe, including court-ordered monitoring of the defendant. The period of treatment shall not exceed eighteen months, and the court shall not order incarceration of the defendant as a condition of participation in a substance abuse treatment program. This subsection does not apply to a defendant entering a drug court program.

          B. Upon violation of the terms and conditions of participation in a substance abuse treatment program, the court may allow reinstatement of the criminal proceedings against the defendant and the state may proceed as otherwise provided.

          C. If the defendant successfully completes the substance abuse treatment program, the court shall dismiss with prejudice the proceedings against the defendant. The court may, in its discretion, dismiss the proceedings against the defendant before the expiration of the maximum period prescribed for the defendant's participation in the substance abuse treatment program.

          D. Upon dismissal of the proceedings against the defendant pursuant to this section, the defendant may apply to the court for an order to seal the records relating to the criminal complaint, information or indictment and dismissal pursuant to this section. If the court determines, after a hearing, that the proceedings against the defendant were dismissed, it shall enter the order sealing the records; provided that the order is consistent with federal law. The effect of the order shall be to restore the defendant, in the contemplation of the law, to the status the defendant occupied before the criminal complaint, information or indictment.

          E. A person on whose behalf an order sealing the records has been entered shall not subsequently be found guilty of perjury or giving a false statement in response to any inquiry made for any purpose due to the person's failure to acknowledge the arrest, information or indictment arising from an alleged violation of Subsection A, B, C or D of Section 30-31-23 NMSA 1978.

          F. Nothing in this section shall prohibit the district attorneys from maintaining their internal records and files or from accessing the sealed court records.

     SECTION 4. PROBATION AND PAROLE VIOLATIONS--SUBSTANCE ABUSE TREATMENT OPTION.--If a person is charged with a violation of the conditions of probation or parole due to the possession or use of a controlled substance, the court or the parole board may stay the probation or parole revocation proceeding and order an assessment and referral in accordance with Section 3 of the Substance Abuse and Crime Prevention Act.

     SECTION 5. LIMITATION.--No person is eligible to participate more than twice in the substance abuse treatment option pursuant to the Substance Abuse and Crime Prevention Act.

     SECTION 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.

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