Bill Text: NC H494 | 2011-2012 | Regular Session | Amended
Bill Title: Continuous Alcohol Monitoring Law Changes
Spectrum: Slight Partisan Bill (Republican 8-5)
Status: (Passed) 2012-07-12 - Ch. SL 2012-146 [H494 Detail]
Download: North_Carolina-2011-H494-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
H 1
HOUSE BILL 494
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Short Title: Continuous Alcohol Monitoring Law Changes. |
(Public) |
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Sponsors: |
Representatives M. Alexander, Guice, T. Moore, and Stam (Primary Sponsors). For a complete list of Sponsors, see Bill Information on the NCGA Web Site. |
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Referred to: |
Judiciary Subcommittee B, if favorable, Finance. |
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March 29, 2011
A BILL TO BE ENTITLED
AN ACT to allow the use of CONTINUOUS alcohol monitoring systems as a condition of probation, to meet requirements for the RESTORATION of a revoked drivers license; to mitigate punishments for impaired driving offenses; and to ensure COMPLIANCE with child custody and visitation orders.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 15A‑534.1(a)(2) reads as rewritten:
"(2) A judge may impose the following conditions on pretrial release:
a. That the defendant stay away from the home, school,
business or place of employment of the alleged victim;victim.
b. That the defendant refrain from assaulting,
beating, molesting, or wounding the alleged victim;victim.
c. That the defendant refrain from removing, damaging
or injuring specifically identified property;property.
d. That the defendant may visit his or her child or children at times and places provided by the terms of any existing order entered by a judge.
e. That the defendant abstain from alcohol consumption, as verified by the use of an approved continuous alcohol monitoring system.
The conditions set forth above may be imposed in addition to requiring that the defendant execute a secured appearance bond."
SECTION 2. G.S. 15A‑1340.11(6) reads as rewritten:
"(6) Intermediate punishment. – A sentence in a criminal case that places an offender on supervised probation and includes at least one of the following conditions:
a. Special probation as defined in G.S. 15A‑1351(a).
b. Assignment to a residential program.
c. House arrest with electronic monitoring.
d. Intensive probation.
e. Assignment to a day‑reporting center.
f. Assignment to a drug treatment court program.
g. Abstinence from alcohol consumption and compliance with recommended treatment, as verified by a continuous alcohol monitoring system approved by the Department of Correction when alcohol dependency or chronic abuse has been identified by a substance abuse assessment."
SECTION 3. G.S. 15A‑1343(b) reads as rewritten:
"(b) Regular Conditions. – As regular conditions of probation, a defendant must:
(1) Commit no criminal offense in any jurisdiction.
(2) Remain within the jurisdiction of the court unless granted written permission to leave by the court or his probation officer.
(3) Report as directed by the court or his probation officer to the officer at reasonable times and places and in a reasonable manner, permit the officer to visit him at reasonable times, answer all reasonable inquiries by the officer and obtain prior approval from the officer for, and notify the officer of, any change in address or employment.
(4) Satisfy child support and other family obligations as required by the court. If the court requires the payment of child support, the amount of the payments shall be determined as provided in G.S. 50‑13.4(c).
(5) Possess no firearm, explosive device or other deadly weapon listed in G.S. 14‑269 without the written permission of the court.
(6) Pay a supervision fee as specified in subsection (c1).
(7) Remain gainfully and suitably employed or faithfully pursue a course of study or of vocational training that will equip him for suitable employment. A defendant pursuing a course of study or of vocational training shall abide by all of the rules of the institution providing the education or training, and the probation officer shall forward a copy of the probation judgment to that institution and request to be notified of any violations of institutional rules by the defendant.
(8) Notify the probation officer if he fails to obtain or retain satisfactory employment.
(9) Pay the costs of court, any fine ordered by the court, and make restitution or reparation as provided in subsection (d).
(10) Pay the State of North Carolina for the costs of appointed counsel, public defender, or appellate defender to represent him in the case(s) for which he was placed on probation.
(11) At a time to be designated by his probation officer, visit with his probation officer a facility maintained by the Division of Prisons.
(12) Attend and complete an abuser treatment program if (i) the court finds the defendant is responsible for acts of domestic violence and (ii) there is a program, approved by the Domestic Violence Commission, reasonably available to the defendant, unless the court finds that such would not be in the best interests of justice.
A defendant shall not pay costs associated with a
substance abuse monitoring program or any other special condition of probation
in lieu of, or prior to, the payments required by this subsection.
In addition to these regular conditions of probation, a defendant required to serve an active term of imprisonment as a condition of special probation pursuant to G.S. 15A‑1344(e) or G.S. 15A‑1351(a) shall, as additional regular conditions of probation, obey the rules and regulations of the Department of Correction governing the conduct of inmates while imprisoned and report to a probation officer in the State of North Carolina within 72 hours of his discharge from the active term of imprisonment.
Regular conditions of probation apply to each defendant placed on supervised probation unless the presiding judge specifically exempts the defendant from one or more of the conditions in open court and in the judgment of the court. It is not necessary for the presiding judge to state each regular condition of probation in open court, but the conditions must be set forth in the judgment of the court.
Defendants placed on unsupervised probation are subject to the provisions of this subsection, except that defendants placed on unsupervised probation are not subject to the regular conditions contained in subdivisions (2), (3), (6), (8), and (11)."
SECTION 4. G.S. 15A‑1343(b1) is amended by adding a new subdivision to read:
"(b1) Special Conditions. – In addition to the regular conditions of probation specified in subsection (b), the court may, as a condition of probation, require that during the probation the defendant comply with one or more of the following special conditions:
…
(2c) Abstain from alcohol consumption and submit to continuous alcohol monitoring when alcohol dependency or chronic abuse has been identified by a substance abuse assessment.
…."
SECTION 5. G.S. 15A‑1343.2(f) is amended by adding a new subdivision to read:
"(f) Delegation to Probation Officer in Intermediate Punishments. – Unless the presiding judge specifically finds in the judgment of the court that delegation is not appropriate, the Division of Community Corrections in the Department of Correction may require an offender sentenced to intermediate punishment to:
(1) Perform up to 50 hours of community service, and
pay the fee prescribed by law for this supervision;supervision.
(2) Submit to a curfew which requires the offender to
remain in a specified place for a specified period each day and wear a device
that permits the offender's compliance with the condition to be monitored electronically;electronically.
(3) Submit to substance abuse assessment, monitoring or
treatment; ortreatment, including continuous alcohol monitoring when
abstinence from alcohol consumption has been specified as a term of probation.
(4) Participate in an educational or vocational skills development program.
(5) Submit to satellite‑based monitoring pursuant to Part 5 of Article 27A of Chapter 14 of the General Statutes, if the defendant is described by G.S. 14‑208.40(a)(2).
If the Division imposes any of the above requirements, then it may subsequently reduce or remove those same requirements.
If the probation officer exercises authority delegated to him or her by the court pursuant to this subsection, the offender may file a motion with the court to review the action taken by the probation officer. The offender shall be given notice of the right to seek such a court review. The Division may exercise any authority delegated to it under this subsection only if it first determines that the offender has failed to comply with one or more of the conditions of probation imposed by the court."
SECTION 6. Article 82 of Chapter 15A of the General Statutes is amended by adding a new section to read:
"§ 15A‑1343.4. Discretionary use of continuous alcohol monitoring systems in DWI and drug courts.
Discretionary use of continuous alcohol monitoring systems for offenders who are not required by law as a condition of pretrial release or probation to abstain from the use of alcohol for a specified period of time shall be permitted and may be imposed in a matter before a Drug Treatment Program Court in the sole discretion of the judge presiding."
SECTION 7. G.S. 20‑28(a) reads as rewritten:
"(a) Driving While License Revoked. – Except as provided in subsection (a1) of this section, any person whose drivers license has been revoked who drives any motor vehicle upon the highways of the State while the license is revoked is guilty of a Class 1 misdemeanor. Upon conviction, the person's license shall be revoked for an additional period of one year for the first offense, two years for the second offense, and permanently for a third or subsequent offense.
In cases involving revocation as a result of convictions under G.S. 20‑138.1, the judge may order the offender to abstain from alcohol consumption and verify compliance by continuous alcohol monitoring for a minimum period of 90 days instead of incarceration.
The restoree of a revoked drivers license who operates a motor vehicle upon the highways of the State without maintaining financial responsibility as provided by law shall be punished as for driving without a license."
SECTION 8. G.S. 20‑179 reads as rewritten:
"§ 20‑179. Sentencing hearing after conviction for impaired driving; determination of grossly aggravating and aggravating and mitigating factors; punishments.
…
(g) Level One Punishment. – A defendant subject to Level One punishment may be fined up to four thousand dollars ($4,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than 30 days and a maximum term of not more than 24 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 30 days. A judge may also require as a condition of special probation after the 30day term of imprisonment required by this subsection is served that a defendant be monitored by a continuous alcohol monitoring system approved by the Department of Correction for a period of not less than 120 days. The minimum term of imprisonment may be reduced to a term of not less than 10 days if the condition of special probation of continuous alcohol monitoring, by a continuous alcohol monitoring system approved by the Department of Correction for a period of not less than 120 days, is imposed by the judge. If the defendant is monitored on an approved continuous alcohol monitoring system during the pretrial period, up to 60 days of pretrial monitoring may be credited against the 120day monitoring requirement for probation. If the defendant is placed on probation, the judge shall impose a requirement that the defendant obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6 for the restoration of a drivers license and as a condition of probation. The judge may impose any other lawful condition of probation.
(h) Level Two Punishment. – A defendant subject to
Level Two punishment may be fined up to two thousand dollars ($2,000) and shall
be sentenced to a term of imprisonment that includes a minimum term of not less
than seven days and a maximum term of not more than 12 months. The term of
imprisonment may be suspended only if a condition of special probation is
imposed to require the defendant to serve a term of imprisonment of at least
seven days. days or if the defendant has abstained from consuming alcohol
for at least 90 consecutive days, as verified by a continuous alcohol
monitoring system approved by the Department of Correction. If the defendant is
monitored on an approved continuous alcohol monitoring system during the
pretrial period, up to 60 days of pretrial monitoring may be credited against
the 120day monitoring requirement for probation. If the defendant is
placed on probation, the judge shall impose a requirement that the defendant
obtain a substance abuse assessment and the education or treatment required by G.S. 20‑17.6
for the restoration of a drivers license and as a condition of probation. The
judge may impose any other lawful condition of probation.
(h1) The judge may impose, as a condition of
probation for defendants subject to Level One or Level Two punishments, that
the defendant abstain from alcohol consumption for a minimum of 30 days, to a
maximum of 60 days, as verified by a continuous alcohol monitoring system. The
total cost to the defendant for the continuous alcohol monitoring system may
not exceed one thousand dollars ($1,000). The defendant's abstinence from
alcohol shall be verified by a continuous alcohol monitoring system of a type
approved by the Department of Correction.
(h2) Notwithstanding the provisions of
subsection (h1), if the court finds, upon good cause shown, that the defendant
should not be required to pay the costs of the continuous alcohol monitoring
system, the court shall not impose the use of a continuous alcohol monitoring
system unless the local governmental entity responsible for the incarceration
of the defendant in the local confinement facility agrees to pay the costs of
the system.
(h3) Any fees or costs paid pursuant to
subsections (h1) or (h2) of this section shall be paid to the clerk of court
for the county in which the judgment was entered or the deferred prosecution
agreement was filed. Fees or costs collected under this subsection shall be
transmitted to the entity providing the continuous alcohol monitoring system.
…
(k2) Probationary Requirement for Abstinence and Use of Continuous Alcohol Monitoring. – The judge may order that as a condition of special probation for any level of offense under G.S. 20‑179 the defendant abstain from alcohol consumption, as verified by a continuous alcohol monitoring system of a type approved by the Department of Correction.
(k3) Probation officers may with a judge's authorization, require defendants to submit to continuous alcohol monitoring for assessment purposes if the defendant has been required to abstain from alcohol consumption during the term of probation and the probation officer believes the defendant is consuming alcohol. The defendant shall bear the costs of the continuous alcohol monitoring system if the use of the system has been authorized by a judge in accordance with this subsection.
(k4) Notwithstanding the provisions of subsections (g), (h), (k2), and (k3) of this section, if the court finds, upon good cause shown, that the defendant should not be required to pay the costs of the continuous alcohol monitoring system, the court shall not impose the use of a continuous alcohol monitoring system unless the local governmental entity responsible for the incarceration of the defendant in the local confinement facility agrees to pay the costs of the system.
…."
SECTION 9. G.S. 50‑13.2 is amended by adding a new subsection to read:
"(b2) Any order for custody, including visitation, may, as a condition of such custody or visitation, require either or both parents, or any other person seeking custody or visitation, to abstain from consuming alcohol and may require submission to an approved continuous alcohol monitoring system to verify compliance with this condition of custody or visitation. Failure to comply with this condition shall be grounds for civil or criminal contempt."
SECTION 10. This act becomes effective December 1, 2011, and applies to offenses committed, sentences imposed, or any custody and visitation orders issued on or after that date.
