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REFERENCE TITLE: pretrial diversion program; primary caregiver |
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State of Arizona Senate Fifty-fifth Legislature First Regular Session 2021
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SB 1542 |
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Introduced by Senator Quezada
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AN ACT
amending title 13, chapter 38, Arizona Revised Statutes, by adding article 15; relating to pretrial diversion programs.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 13, chapter 38, Arizona Revised Statutes, is amended by adding article 15, to read:
ARTICLE 15. PRETRIAL DIVERSION PROGRAMS
13-4001. Primary caregiver pretrial diversion program; requirements; sealed records
A. The presiding judge of the superior court, or a judge designated by the presiding judge, in consultation with the presiding juvenile court judge and criminal court judges, and together with the prosecuting attorney and the public defender or the contracted criminal defense office that provides the services of a public defender, may agree in writing to establish and conduct a pretrial diversion program for primary caregivers. While a defendant is in the primary caregiver diversion program Criminal proceedings are suspended without a plea of guilty for a period of not less than six months and not more than twenty-four months. the juvenile and criminal courts may not duplicate efforts If the defendant is also participating in juvenile court proceedings.
B. The primary caregiver diversion program may include all of the following components:
1. Parenting classes.
2. Family and individual counseling.
3. Mental health screening, education and treatment.
4. Family case management services.
5. Drug and alcohol treatment.
6. Domestic violence education and prevention.
7. Physical and sexual abuse counseling.
8. Anger management.
9. Vocational and educational services.
10. Job training and placement.
11. Affordable and safe housing assistance.
12. Financial literacy courses.
c. The defendant may be referred to supportive services and classes in already existing diversion programs. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant and the dependent child or children and the interests of the community. The programming may be procured using public or private monies. A referral may be made to a county agency or assisted outpatient treatment or services, if the entity agrees to provide the required programming.
D. After considering the positions of the defense and prosecution the court may grant pretrial diversion to a defendant who is charged with a misdemeanor or felony offense if all of the following apply:
1. The defendant is a custodial parent or legal guardian of a minor child, presently resides in the same household as that minor child and presently provides care or financial support for that minor child either alone or with the assistance of other household members, and the defendant's absence in the minor child's life would be detrimental to the minor child.
2. The defendant is advised of and waives the right to a speedy trial and a speedy preliminary hearing.
3. The defendant is informed of and agrees to comply with the program requirements.
4. The court is satisfied that the defendant does not pose an unreasonable risk of danger to public safety or to the minor child in the defendant's custody if allowed to remain in the community. The court may consider the positions of the prosecuting attorney and defense counsel, the defendant's violence and criminal history, the recency of the defendant's criminal history, the defendant's history of behavior towards minors, the risk of the dependent minor's exposure to or involvement in criminal activity, the current charged offense, child welfare history involving the defendant and any other factors that the court deems appropriate.
5. The defendant is not charged with a serious offense or a violent or aggravated felony as defined in section 13-706.
6. The defendant is not charged with a crime that is alleged to have been committed against a person for whom the defendant is the primary caregiver.
E. If it appears to the prosecuting attorney, the court, pretrial services or the probation department that the defendant is performing unsatisfactorily in the assigned program or if after entering the program the defendant is convicted of a felony or any offense that reflects a propensity for violence, the prosecuting attorney or the probation department may file a motion to reinstate criminal proceedings. The court may also reinstate criminal proceedings on its own motion. If a motion to reinstate criminal proceedings is filed, After the defendant is notified, the court shall hold a hearing to determine whether to reinstate criminal proceedings. If the court finds that the defendant is not performing satisfactorily in the assigned program or the court finds that the defendant has been convicted of a crime, the court may terminate the diversion program and order criminal proceedings to resume.
f. If the defendant has performed satisfactorily the court shall dismiss the defendant's criminal charges At the end of the diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion and has avoided significant new violations of law. If the court dismisses the charges, the clerk of the court shall notify the Department of public safety of the dismissal, the arrest that the diversion was based on shall be deemed never to have occurred and the court shall order access to the record of the arrest restricted. A defendant who successfully completes diversion may indicate in response to any question concerning the defendant's prior criminal record that the person was not arrested or diverted for the offense, except The defendant shall be advised that, regardless of the defendant's completion of diversion, both of the following apply:
1. The Department of public safety may disclose the arrest that the diversion was based on to any peace officer application request and that the defendant is not relieved of the obligation to disclose the arrest in response to any direct question that is contained in any questionnaire or application for a position as a peace officer.
2. An order to seal records pertaining to an arrest that is dismissed pursuant to this section does not affect a criminal justice agency's ability to access and use those sealed records and information regarding sealed arrests.
G. A record pertaining to an arrest that resulted in the defendant's successful completion of diversion or any record generated as a result of the defendant's application for or participation in diversion may not be used in any way, without the defendant's consent, that could result in the denial of any employment, benefit, license or certificate.