RÉSUMÉ DIGEST
SB 145 2021 Regular Session Ward
Present law provides that every person arrested for a violation of the Uniform Controlled
Dangerous Substances Law or a crime of violence as defined by present law must submit to
a pretrial drug test for the presence of certain controlled substances in accordance with
present law and rules of court governing such testing.
Proposed law would retain present law and add the following:
(1)Drug testing to determine the presence of a controlled dangerous substance should
occur within 24 hours of the booking of the person.
(2)A person testing positive is to be clinically screened for the purposes of determining
whether the person suffers from a substance use disorder and is suitable for a drug
or specialty court program.
(3)A person who tested positive and is considered suitable for a drug or specialty court
program is subject to additional provisions of proposed law relative to mandatory
assessment.
(4)Information and records relative to drug testing or screening are confidential and
cannot be disclosed to any person who is not connected with the district attorney,
counsel for the person tested or screened, a treatment professional, or the court,
without the consent of the person tested or screened, and such information is not
admissible in any civil or criminal proceeding except for the purposes of determining
the person's suitability or eligibility for a drug or specialty court program.
(5)The costs and expenses of the drug testing and screening required by proposed law
are eligible for reimbursement from the Drug and Specialty Court Fund created by
proposed law.
Proposed law would provide that proposed law relative to mandatory drug testing and
screening is to be enforced to the extent that sufficient monies exist in the Drug and Specialty
Court Fund to reimburse costs and expenses. Proposed law would further provide that if the
administrator of the fund certifies that sufficient monies do not exist for reimbursement,
those testing and screening provisions will cease to be mandatory, but may still be enforced
at the discretion of the governing authority.
Present law provides that, when it appears that the best interest of the public and of the
defendant will be served, after a fourth conviction of a noncapital felony or third or fourth
conviction of DWI, the court may suspend the imposition or execution of sentence when the
defendant's sentences for his first, second, or third convictions of a noncapital felony were
not suspended prior to his fourth conviction of DWI, and the following conditions exist:
(1)The district attorney consents to the suspension of the sentence.
(2)The court orders the defendant to complete any of the following:
(a)A program provided by the drug division of the district court.
(b)An established DWI court or sobriety court program.
(c)A mental health court program established by present law.
(d)A Veterans Court program established by present law.
(e)A reentry court program established by present law.
(f)Reside for at least one year in a facility that conforms to the Judicial Agency
Referral Residential Facility Regulatory Act established by present law.
(g)The Swift and Certain Probation Pilot Program established by present law. Proposed law would retain present law and add that present law applies only if the defendant
does not meet the eligibility criteria for participation in a drug or specialty court program.
Present law provides that when suspension of sentence is allowed after a fourth conviction
of a noncapital felony or third or fourth conviction of DWI, the defendant is to be placed on
probation under the supervision of the division of probation and parole. Present law further
provides that the period of probation cannot be more than three years except as otherwise
provided in present law.
Proposed law would retain present law and add that the defendant may be placed on
probation under the supervision of a probation office, agency, or officer designated by the
court in lieu of supervision by the division of probation and parole.
Proposed law would provide that, when it appears that the best interest of the public and of
the defendant will be served, after the conviction of a defendant considered suitable for a
drug or specialty court program, the court may suspend, in whole or in part, the imposition
or execution of the sentence when all of the following conditions are met:
(1)The district attorney consents to the suspension of sentence.
(2)There is an available drug or specialty court program recognized by the La. Supreme
Court.
(3)The court orders the defendant to enter and complete any drug or specialty court
program recognized by the La. Supreme Court.
Proposed law would provide that if the district attorney does not consent to the suspension
of the sentence, he must file his objection with written reasons into the record. Proposed law
would further provide that if the district attorney files an objection, or if the court determines
that a specialty court program is not available, the court may sentence the defendant to any
sentence provided by present law.
Proposed law would provide that, when suspension of sentence is allowed pursuant to
proposed law, the defendant may be placed on probation, for not more than three years
except as provided by present law, under the supervision of the division of probation and
parole, or a probation office, agency, or officer designated by the court.
Proposed law would provide that, upon motion of the defendant, if the court finds that
probation has been satisfactory, the court may set the conviction aside and dismiss the
prosecution, which will have the same effect as an acquittal; however, the conviction may
be considered a prior offense for purposes of the Habitual Offender Law or any other present
law relative to cumulation of offenses. Proposed law would further provide that a dismissal
pursuant to proposed law can occur only once with respect to any person.
Proposed law would provide that a defendant is to be assessed for suitability for participation
in a drug or specialty court program if all of the following criteria are met:
(1)The defendant meets present law eligibility requirements.
(2)There is a relationship between the use of alcohol or drugs and the offense.
(3)The defendant has tested positive on a drug test and has been screened and
determined suitable for a drug or specialty court program pursuant to proposed law,
or upon request of the defendant or order of the court.
Proposed law would provide that a defendant who meets these criteria is to be assessed by
a licensed treatment professional designated by the court. Proposed law would provide that
treatment professionals must possess sufficient experience in working with clients who have
alcohol or drug abuse or addiction issues or mental illness, and must be credentialed or
licensed by the state of Louisiana. Proposed law would further provide that the designated
treatment professional is to perform an assessment of the defendant to determine whether he
is suitable for a treatment program, and must report to the court, the district attorney, the
defendant, and counsel for the defendant the results of the assessment, along with a
recommendation as to whether the defendant is suitable. Proposed law would provide that the court must inform the defendant that the designated
treatment professional may request that the defendant provide the following information to
the court regarding prior criminal charges, education, work experience, family history,
medical and mental health history, and any other information reasonably related to the
success of the treatment program.
Proposed law would provide that information provided by the defendant to the designated
treatment professional is confidential and cannot be disclosed to any person who is not
connected with the treatment professional, treatment facility, district attorney, counsel for
defendant, or the court, without the consent of the defendant; however, these records and
information may be used for the purposes of research or evaluation of the mandatory
screening procedures or the effectiveness of any drug or specialty court program, provided
that the information or records are not published with any identifying information. Proposed
law would further provide that information obtained from the defendant is not admissible in
any civil or criminal proceeding, except to determine the defendant's suitability or eligibility
for a drug or specialty court program.
Present law provides that the court must advise the defendant that if he requests treatment
and is accepted, he will be placed under the supervision of the drug division probation
program for a period of at least 12 months.
Proposed law would provide that the court is to determine the length of supervision of the
defendant rather than a mandatory 12 months, except that for a defendant convicted of a first,
second, or third offense DWI, the period must be at least 12 months.
Proposed law otherwise retains present law.
Proposed law would create the Drug and Specialty Court Fund in the state treasury. Proposed
law would provide that all monies received by the state from any judgment, settlement, or
otherwise collected from any responsible person, to cover monies expended or anticipated
to be expended by the state, or damages incurred by the state, in connection with the
manufacturing, marketing, distribution, or sale of opioids are to be deposited into the fund.
Proposed law would provide that monies in the fund are to be invested by the state treasurer
in the same manner as monies in the state general fund, and interest earned is to be credited
to the fund. Proposed law would further provide that all unexpended and unencumbered
monies in the fund at the end of the fiscal year are to remain in the fund.
Proposed law would provide that the office of the attorney general is the administrator of the
fund, and monies in the fund are to be appropriated to administer the fund in accordance with
proposed law. Proposed law further provides that monies in the fund are to be disbursed by
the administrator to eligible applicants for the purpose of drug testing and screening through
the award of grants. Proposed law further provides that these grants are to be awarded only
as considered appropriate by the administrator, based upon the individual needs of each
entity with respect to compliance with proposed law.
Proposed law would provide that monies in the fund may be used for the following:
(1)Expenses related to any drug or specialty court within the district courts of this state,
including expenses incurred by the district courts, district attorneys' offices, public
defenders, parish and local governing authorities, and sheriffs' offices related to
participants or potential participants in any drug or specialty court in this state,
including expenses incurred for the purpose of supervising participants.
(2)Expenses related to administering mandatory drug testing and clinical drug screening
by law enforcement agencies, including sheriffs' offices, in accordance with new law.
(3)Expenses related to drug screening and testing of participants or potential participants
in any drug or specialty court program in this state.
(4)Expenses related to the services provided by drug or specialty court programs or
services received by participants or potential participants in any drug or specialty
court program in this state. (5)Expenses related to the creation, maintenance, operation, expansion, or improvement
of any drug or alcohol treatment facilities, programs, or services for individuals in the
custody of the Dept. of Public Safety and Corrections or any parish or local
correctional facility in this state.
(6)Any other expenses directly related to or incurred due to compliance with proposed
law.
Proposed law would provide that any monies disbursed by the administrator that remain
unexpended or unencumbered at the end of the fiscal year are available for use in the
subsequent fiscal year by the entity, subject to the provisions of the grant agreement.
Proposed law would provide that the administrator of the fund is to submit an annual report
to the Joint Legislative Committee on the Budget no later than August first of each year,
which is to include information from the previous fiscal year relative to the number of grant
applications received, recipients of the grants, and amounts of the grants awarded.
Proposed law would provide that the administrator is to submit a notice of the exhaustion or
anticipated exhaustion of all monies received or to be received by the fund, no later than
three years prior to the exhaustion or anticipated exhaustion, to the Joint Legislative
Committee on the Budget, the president of the Senate, the speaker of the House of
Representatives, and the governor. Proposed law would further provide that if the amount
of monies in the fund is determined at any time to be insufficient to satisfy the costs of
compliance with proposed law, the administrator is to certify the existence of this
insufficiency and provide notice of this certification to these same parties. Proposed law
further provides that, upon certification and notice of the insufficiency of funds, compliance
with proposed law relative to funding drug and specialty courts will cease to be mandatory,
but may continue to be enforced at the discretion of the governing authority.
Proposed law relative to the creation and operation of the Drug and Specialty Court Fund
would have become effective August 1, 2021.
Proposed law relative to mandatory drug testing and screening and drug and specialty courts
would take effect one year from the date on which the balance of monies in the Drug and
Specialty Court Fund reaches $10,000,000.
(Proposed to amend C.Cr.P. Art. 320(D) and (E)(1) and 893(A)(1)(a), (B)(2), (F), (G), and
(H) and R.S. 13:5304(B)(3)(b); add C.Cr.P. Art. 893(B)(1)(c) and (I) and 904 and R.S.
39:100.171 and 100.172)
VETO MESSAGE: "Please be advised that I have vetoed Senate Bill 145 of the 2021
Regular Session.
This bill purports to enhance access to drug and specialty courts throughout the state
through a dedicated funding stream derived from proceeds recovered by the State from any
settlement against opioid manufacturers. Although a worthwhile cause, this bill falls
woefully short of accomplishing the intended purpose.
Senate Bill 145 would require 'all monies received by the state,' outside of what is
constitutionally required to go through the bond security and redemption fund, to be
deposited into the Drug and Specialty Court Fund. The plain language of the bill would give
the administrator of the fund (designated as the Office of the Attorney General) sole
discretion in making a determination as to what is 'considered appropriate' in awarding grants
to 'eligible applicants,' contrary to testimony by the Attorney General in Senate Committee
that the role of the Office of the Attorney General would be purely administrative and would
only act to disperse money from the fund to the Louisiana Commission on Law Enforcement
and the Louisiana Supreme Court Drug and Specialty Court Office. The legislation fails,
however, to define 'eligible applicant' or what is 'appropriate.' Furthermore, while the bill
provides for acceptable uses of the money, it does not provide that the acceptable uses are
limited to those contained in the bill, meaning the acceptable uses of the money in the fund
are without limitation. Practically, the bill requires the legislature to appropriate all of the
money in the fund to the Office of the Attorney General and grants sole authority to the
office to determine how much and to whom the money is to be dispersed without limitation. Further, it provides for no safeguards or checks that the money will be spent to enhance
access to drug and specialty courts throughout the state.
In addition to the fatal defects discussed above, the bill creates confusion between
whether costs and expenses of local law enforcement agencies to conduct mandatory drug
testing are reimbursable through the fund or may be paid for through a grant from the fund.
Reimbursement would require the responsible agency to pay for the expense out of their own
operating budget and then seek reimbursement. The same cost-prohibitive problem that
exists today for law enforcement agencies to conduct drug testing continues to exist under
this reimbursement model. Because the bill fails to define 'eligible applicant,' it is unclear
whether or not a law enforcement agency would be able to apply for a grant through the fund.
Even more confusing is that a person who tests positive is required to be screened for a
substance use disorder and also for whether the person is a suitable candidate for
participation in a drug court or specialty program, and if the person is determined suitable
for the program, then they have to be reassessed to determine whether or not they are
suitable, one of the criteria being that they were already determined suitable in the first
screening. Except for the twenty-four-hour period after booking within which the mandatory
testing has to occur, there is no timeline established for any of the steps along the way. There
are too many unknowns and uncertainties for this to be implemented by each jurisdiction
equally across the board.
It is important to note that the Louisiana Supreme Court Drug and Specialty Court
Office runs an extremely successful program. It works now with federal and state partners
to ensure accountability, promote best practices in existing specialty court programs, assists
with planning efforts of jurisdictions establishing new specialty court programs, awards
funds annually to programs around the state, and monitors each program's operations
throughout the year. Certainly, the office, which has been charged with these tasks for more
than two decades, is in the best position to determine the needs of each jurisdiction when it
comes to enhancing access to drug and specialty courts throughout the state. For this reason,
and the many others discussed above, I have vetoed Senate Bill 145."