§ 13:5304 — The drug division probation program

Louisiana § 13:5304

• Jurisdiction: Louisiana
• Title 13: Courts and Judicial Procedure

Text

§5304. The drug division probation program
A. Each district court by rule may designate as a drug division one or more divisions
to which alcohol- or drug-related offenses are assigned and may establish a probation
program to be administered by the presiding judge or judges thereof or by an employee
designated by the court.
B. Participation in probation programs shall be subject to the following provisions:
(1) The district attorney may propose to the court that an individual defendant be
screened for eligibility as a participant in the drug division probation program if all of the
following criteria are satisfied:
(a) The individual is charged with a violation of a statute of this state relating to the
use and possession of or possession with intent to distribute any narcotic drugs, coca leaves,
marijuana, stimulants, depressants, or hallucinogenic drugs, or where there is a significant
relationship between the use of alcohol or drugs, or both, and the crime before the court.
(b) The district attorney has reason to believe that the individual who is charged
suffers from alcohol or drug abuse or addiction.
(c) It is in the best interest of the community and in the interest of justice to provide
the defendant with treatment as opposed to incarceration or other sanctions.
(2) Upon receipt of the proposal provided for in Paragraph (1) of this Subsection, the
court shall advise the defendant that he or she may be eligible for enrollment in a court-authorized treatment program through the drug division probation program.
(3) The court shall inform the defendant that the drug division program or district
attorney may request that the defendant provide the following information to the court to
determine eligibility and suitability for program admission:
(a) Information regarding prior criminal charges.
(b) Education, work experience, and training.
(c) Family history, including residence in the community.
(d) Medical and mental history, including any psychiatric or psychological treatment
or counseling.
(e) Any other information reasonably related to the success of the treatment program.
(4) The defendant shall undergo a program screening by a staff member of the drug
division probation program that is knowledgeable in specialty court clinical suitability. The
clinical screening tool shall be validated, evidence based, and include risk and need
components. The findings of the screening shall be reported to the court, the district attorney,
and the defendant's counsel.
(5) The defendant shall meet the suitability requirements as defined by best practice
standards developed for the drug division probation program and adopted by the Louisiana
Supreme Court.
(6) Upon a determination that the defendant meets the eligibility and suitability
criteria, the court may offer a defendant the opportunity to participate in the program and
undergo treatment. The court shall advise and the defendant shall be subject to the
following:
(a) If the defendant is accepted into the drug division probation program, then the
defendant shall waive the right to a trial. The defendant shall enter a plea of guilty to the
charge, with the stipulation that sentencing be deferred or that sentence be imposed but
suspended and the defendant be placed on supervised probation under the usual conditions
of probation and under certain special conditions of probation related to the completion of
such substance abuse treatment programs as are ordered by the court.
(b) Upon acceptance of the guilty plea, the defendant's case shall be transferred to
the drug court division, where the defendant shall be under the supervision of the drug
division probation program for a period of not less than twelve months.
(c) During drug division probation program supervision, the defendant may be
required to receive long-term residential treatment, inpatient treatment, or community-based
outpatient treatment based on a clinical assessment recommendation and approval by the
drug division probation program judge.
(d) The court may impose any conditions reasonably related to the complete
rehabilitation of the defendant.
(e) The defendant shall be required to participate in an alcohol and drug testing
program at his own expense, unless the court determines that the defendant is indigent.
(f) If the defendant successfully completes all requirements of the drug division
probation program and all other requirements of his court-ordered probation, the judge may,
on motion of the district attorney or the defendant, order the setting aside of the conviction
and dismissal of prosecution within the provisions of Code of Criminal Procedure Article
893 or 894.
(g) If the defendant does not successfully complete the drug division probation
program, the judge may revoke the probation and impose sentence, or the judge may revoke
the probation and order the defendant to serve the sentence previously imposed and
suspended.
(7) The defendant has the right to be represented by counsel at all stages of a criminal
prosecution and in any court hearing relating to the drug division probation program. The
defendant shall be represented by counsel during the determination of eligibility and
suitability to participate in the drug division probation program at the time of the execution
of the sentencing agreement and at any subsequent probation revocation hearing to discharge
him, unless the court finds and the record shows that the defendant has knowingly and
intelligently waived his right to counsel.
(8) The designated program shall recommend to the court a level of care for the
defendant.
(9) The defendant shall agree to participation in the drug division probation program. (10) Besides the eligibility and suitability reports submitted by the examiner, the
judge and district attorney shall consider the following factors in determining whether drug
court probation would be in the interests of justice and of benefit to the defendant and the
community:
(a) The nature of the crime charged and the circumstances surrounding the crime.
(b) Any special characteristics or circumstances of the defendant.
(c) Whether the defendant is a first-time offender of an alcohol- or drug-related
offense, and, if the defendant has previously participated in this or a similar program, the
degree of success attained.
(d) Whether there is a probability that the defendant will cooperate with and benefit
from probation and treatment through the drug division probation program.
(e) Whether the available drug division probation program is appropriate to meet the
needs of the defendant.
(f) The impact of the defendant's probation and treatment upon the community.
(g) Recommendations, if any, of the involved law enforcement agency.
(h) Recommendations, if any, of the victim.
(i) Provisions for and the likelihood of obtaining restitution from the defendant over
the course of his probation.
(j) Any mitigating circumstances.
(k) Any other circumstances reasonably related to the individual defendant's case.
(10.1) Repealed by Acts 2024, No. 572, §2.
(11) In order to be eligible for the drug division probation program, the defendant
shall satisfy each of the following criteria:
(a) The defendant cannot have any prior felony conviction for any offense defined
as a homicide in R.S. 14:29.
(b) The crime before the court cannot be a crime of violence as defined in R.S.
14:2(B), except a first conviction of an offense with a maximum prison sentence of ten years
or less that was not committed against a family member or household member as defined by
R.S. 14:35.3, or against a dating partner as defined by R.S. 46:2151, or an offense of
domestic abuse battery that is punishable by imprisonment at hard labor as provided in R.S.
14:35.3.
(c) Other criminal proceedings alleging commission of a crime of violence as defined
in R.S. 14:2(B) cannot be pending against the defendant.
(d) The crime before the court cannot be a charge of driving under the influence of
alcohol or any other drug or drugs that resulted in the death of a person.
(12) A defendant previously convicted or adjudicated a delinquent for the offense
of simple battery shall not be deemed ineligible for the drug division probation program on
the sole basis of such status.
(13)(a) The judge shall make the final determination of eligibility. If, based on the
examiner's report and the recommendations of the district attorney and the defense counsel,
the judge determines that the defendant should be enrolled in the drug division probation
program, the court shall accept the defendant's guilty plea and suspend or defer the
imposition of sentence and place the defendant on probation under the terms and conditions
of the drug division probation program. The court also may impose sentence and suspend
the execution thereof, placing the defendant on probation under the terms and conditions of
the drug division probation program.
(b) If it is determined after screening that the defendant is not qualified for
enrollment in the drug division probation program, reasons for that determination shall be
provided to the defendant and made part of the record in his case.
(c) The office of probation and parole or the district attorney may petition the court
for immediate discharge of any individual who fails to comply with treatment program rules
and treatment expectations or who refuses to constructively engage in the treatment process.
C.(1) The terms of each probation agreement shall be decided by the judge. The
defendant must agree to enter the program and sign a probation agreement stating the terms
and conditions of his program. The defendant must plead guilty to the charge in order to be
eligible for the drug division probation program.
(2) Any probation agreement entered into pursuant to this Section shall include the
following:
(a) The terms of the agreement, which shall provide that if the defendant fulfills the
obligations of the agreement, as determined by the court, then the criminal charges may be
dismissed and the prosecution set aside in accordance with the provisions of Code of
Criminal Procedure Articles 893 and 894, or, if the defendant has been sentenced following
the plea of guilty, then the successful completion of the drug division probation program may
result in the discharge of the defendant from continued supervision.
(b) A waiver by the defendant of the right to trial by jury under the laws and
constitution of Louisiana and the United States.
(c) The defendant's full name.
(d) The defendant's full name at the time the complaint was filed, if different from
the defendant's current name.
(e) The defendant's sex and date of birth.
(f) The crime before the court.
(g) The date the complaint was filed.
(h) The court in which the agreement was filed.
(i) A stipulation of the facts upon which the charge was based, as agreed to by the
defendant and the district attorney.
(j) A provision that the defendant will be required to pay a probation supervision fee.
(k) A provision in cases where applicable that the defendant will be required to pay
restitution to the victim.
(l) A provision that once the defendant is receiving treatment as an outpatient or
living in a halfway house he will participate in appropriate job training or schooling or seek
gainful employment.
(m) A copy of the plea agreement.
(3) A defendant who is placed under the supervision of the drug division probation
program shall pay the cost of the treatment program to which he is assigned and the cost of
any additional supervision that may be required, to the extent of his financial resources, as
determined by the drug division.
(4) If the probationer does not have the financial resources to pay all the related costs
of the probation program:
(a) The court, to the extent practicable, shall arrange for the probationer to be
assigned to a treatment program funded by the state or federal government.
(b) The court, with the recommendation of the treatment program, may order the
probationer to perform supervised work for the benefit of the community in lieu of paying
all or a part of the costs relating to his treatment and supervision. The work must be
performed for and under the supervising authority of a parish, municipality, or other political
subdivision or agency of the state of Louisiana or a charitable organization that renders
service to the community or its residents.
D.(1) When appropriate, the imposition or execution of sentence shall be postponed
while the defendant is enrolled in the treatment program. As long as the probationer follows
the conditions of his agreement, he or she shall remain on probation. At the conclusion of
the period of probation, the district attorney, on advice of the person providing the
probationer's treatment and the probation officer, may recommend that the drug division take
one of the following courses of action:
(a) That the probationer's probation be revoked and the probationer be sentenced
because the probationer has not successfully completed the treatment and has violated one
or more conditions of probation; or, if already sentenced, that the probation be revoked and
the probationer be remanded to the appropriate custodian for service of that sentence.
(b) That the period of probation be extended so that the probationer may continue
the program.
(c) That the probationer's conviction be set aside and the prosecution dismissed
because the probationer has successfully completed all the conditions of his or her probation
and treatment agreement.
(2) The district attorney shall make the final determination on whether to request
revocation, extension, or dismissal.
(3)(a) If an individual who has enrolled in a program violates any of the conditions
of probation or the treatment agreement or appears to be performing unsatisfactorily in the
assigned program, or if it appears that the probationer is not benefitting from education,
treatment, or rehabilitation, the treatment supervisor, probation officer, or the district attorney
may move the court for a hearing to determine if the probationer has violated a condition of
probation, whether the probationer should remain in the program, or whether the probation
should be revoked and the probationer removed from the program and sentenced or ordered
to serve any sentence previously imposed. If at the hearing the moving party can show
sufficient proof that the probationer has violated probation or the treatment agreement and
has not shown a willingness to submit to rehabilitation, the probationer may be reprimanded,
sanctioned for the violation, removed from the program or the treatment agreement may be
changed to meet the probationer's specific needs.
(b) If the court finds that the probationer has violated a condition of probation or a
provision of the probation agreement and that the probationer should be removed from the
probation program, then the court may revoke the probation and sentence the individual in
accordance with the guilty plea or, if the individual has been sentenced and the sentence
suspended, order the individual to begin serving the sentence.
(c) At any time and for any appropriate reason, the probationer, his probation officer,
the district attorney, or his treatment provider may petition the court to reconsider, suspend,
or modify its order for rehabilitation or treatment concerning that probationer.
(d) The burden of proof at all such hearings shall be the burden of proof required to
revoke probation as provided by law.
E. The appropriate alcohol and drug treatment professional shall report the following
changes or conditions to the district attorney at any periodic reporting period specified by the
court:
(1) The probationer is changed from an inpatient to an outpatient.
(2) The probationer is transferred to another treatment center or program.
(3) The probationer fails to comply with program rules and treatment expectations.
(4) The probationer refuses to engage constructively in the treatment process.
(5) The probationer terminates his or her participation in the treatment program.
(6) The probationer is rehabilitated or obtains the maximum benefits of rehabilitation
or treatment.
F. Upon successful completion of the drug division probation program and its terms
and conditions, the judge, after receiving the recommendation from the district attorney, may
vacate the judgment of conviction and dismiss the criminal proceedings against the
probationer or may discharge the defendant from probation in accordance with the provisions
of Code of Criminal Procedure Article 893 or 894.
G. Discharge and dismissal under this Chapter, as provided in Code of Criminal
Procedure Articles 893 and 894, shall have the same effect as acquittal, except that the
conviction may be considered in order to provide the basis for subsequent prosecution of the
party as a multiple offender and shall be considered as an offense for the purposes of any
other law or laws relating to cumulation of offenses. Dismissal under this Chapter shall
occur only once with respect to any person. Nothing herein shall be construed as a basis for
the destruction of records of the arrest and prosecution of the person.
H. Nothing contained in this Chapter shall confer a right or an expectation of a right
to treatment for a defendant or offender within the criminal justice system.
I. Each defendant shall contribute to the cost of substance abuse treatment received
in the drug treatment program based upon guidelines developed by the drug division.
J. Each judicial district that establishes a drug division shall adopt written policies
and guidelines for the implementation of a probation program in accordance with this
Chapter. The policies and guidelines shall include provisions concerning the following:
(1) How to screen the defendant initially to determine if the defendant is suitable for
enrollment.
(2) How to advise the defendant of the program if the court has reason to believe the
defendant may suffer from alcohol or drug abuse or addiction.
(3) What drug division probation program staff are certified by the court.
K. Each drug division shall implement process and outcome measures promulgated
by the Louisiana Supreme Court Drug and Specialty Court Office for assessing program
effectiveness. Reports of progress and outcome measures shall be transmitted annually to
the judicial administrator of the Supreme Court of Louisiana.
L.(1) Except as otherwise provided for by law, the registration and other records of
a treatment facility are confidential and shall not be disclosed to any person not connected
with the treatment facility or the drug division and district attorney without the consent of
the patient.
(2) The provisions of Paragraph (1) of this Subsection shall not restrict the use of
patients' records for the purpose of research into the cause and treatment of alcoholism and
drug abuse or addiction, provided that such information shall not be published in a way that
discloses the patient's name and identifying information.
M. No statement, or any information procured therefrom, with respect to the specific
offenses with which the defendant is charged, which is made to any probation officer or
alcohol and drug treatment worker subsequent to the granting of probation, shall be
admissible in any civil or criminal action or proceeding, except a drug division probation
revocation proceeding.
N. A record of the fact that an individual has participated in a drug division
probation program shall be maintained by the Supreme Court and shall be made available
upon request to any district attorney for the purpose of determining if an individual has
previously participated in a drug division probation program.
O.(1) The provisions of Code of Criminal Procedure Article 893(A) and (D) which
prohibit the court from suspending or deferring the imposition of sentences for violations of
the Uniform Controlled Dangerous Substances Law or for violations of R.S. 40:966(A),
967(A), 968(A), 969(A), or 970(A) shall not apply to prosecutions in drug division probation
programs as authorized by this Chapter.
(2) The minimum mandatory sentence provided for in R.S. 14:98(D)(1) and (E)(1),
which shall otherwise be imposed without benefit of probation, parole, or suspension of
sentence, may be suspended if the offender is prosecuted in a drug division probation
program pursuant to the provisions of this Chapter.

Legislative History

Acts 1997, No. 1376, §1; Acts 2003, No. 1053, §1; Acts 2009, No. 182, §1; Acts 2013, No. 388, §1, eff. June 18, 2013; Acts 2013, No. 389, §§3, 5; Acts 2014, No. 337, §1; Acts 2014, No. 604, §1; Acts 2016, No. 509, §2; Acts 2016, No. 609, §1; Acts 2017, No. 280, §2, eff. Nov. 1, 2017; Acts 2022, No. 615, §1; Acts 2024, 2 nd Ex. Sess., No. 4, §2, eff. July 1, 2024; Acts 2024, No. 572, §§ 1,2.