§706-622.9  Sentencing for first-time
property offenders; expungement.  (1)  Notwithstanding section 706-620(3),
a person convicted for the first time of any class C felony property offense
under chapter 708 who has not previously been sentenced under section
706-606.5, section 706-622.5, or this section is eligible to be sentenced to
probation under subsection (2) if the person meets the following criteria:



(a) The court has determined that the person is
nonviolent after reviewing the person's criminal history, the factual
circumstances of the offense for which the person is being sentenced, and any
other relevant information;



(b) The person has been assessed by a certified
substance abuse counselor to be in need of substance abuse treatment due to
dependency or abuse under the applicable Diagnostic and Statistical Manual and
Addiction Severity Index;



(c) The court has determined that the offense for
which the person is being sentenced is related to the person's substance abuse
dependency or addiction;



(d) The court has determined that the person is
genuinely motivated to obtain and maintain substance abuse treatment, based
upon consideration of the person's history, including whether substance abuse
treatment has previously been afforded to the person, and an appraisal of the
person's current circumstances and attitude; and



(e) Except for those persons directed to substance
abuse treatment under the supervision of the drug court, the person presents a
proposal to receive substance abuse treatment in accordance with the treatment
plan prepared by a certified substance abuse counselor through a substance
abuse treatment program that includes an identified source of payment for the
treatment program.



(2)  A person eligible under subsection (1) may
be sentenced to probation to undergo and complete a substance abuse treatment
program if the court determines that the person can benefit from substance
abuse treatment and, notwithstanding that the person would be subject to
sentencing as a repeat offender under section 706-606.5, the person should not
be incarcerated to protect the public.  If the person fails to complete the
substance abuse treatment program and the court determines that the person
cannot benefit from any other suitable substance abuse treatment program, the
person shall be sentenced as provided in this part.  As a condition of
probation under this subsection, the court may direct the person to undergo and
complete substance abuse treatment under the supervision of the drug court if
the person has a history or relapse in treatment programs.  The court may
require other terms and conditions of probation, including requiring that the
person contribute to the cost of the substance abuse treatment program, comply
with deadlines for entering into the substance abuse treatment program, and
reside in a secure drug treatment facility.



(3)  The court, upon written application from a
person sentenced under this part, shall issue a court order to expunge the
record of conviction for that particular offense; provided that a person has
successfully completed the substance abuse treatment program and complied with
other terms and conditions of probation.  A person sentenced to probation under
this section shall be eligible for expungement under this subsection only if
the person has not been previously convicted of a felony offense in this or
another jurisdiction.



(4)  Nothing in this section shall be construed
to give rise to a cause of action against the State, a state employee, or a
treatment provider.



(5)  For the purposes of this section,
"substance abuse treatment program" means drug or substance abuse
treatment services provided outside a correctional facility by a public,
private, or nonprofit entity that specializes in treating persons who are
diagnosed with having substance abuse or dependency and preferably employs
licensed professionals or certified substance abuse counselors. [L 2006, c 230,
§1; am L Sp 2009, c 4, §4]



 



COMMENTARY ON §706-622.9



 



  Act 230, Session Laws 2006, added §706-622.9, to provide
guidelines for the sentencing of first-time property offenders and the
expungement of records.  House Standing Committee Report No. 665-06.



  Act 4, Special Session Laws 2009, amended subsection (2)
authorizing the placement of certain drug offenders in secure drug treatment
facilities, to promote the rehabilitation of convicted drug offenders through
alternatives to incarceration.  The legislature found that providing convicted
drug offenders with drug rehabilitation programs in a secure drug treatment facility
would reduce the offenders' rate of recidivism upon release and help the
offenders develop an important and meaningful role in society.  Senate Standing
Committee Report No. 1285, Conference Committee Report No. 25.