REFERENCE TITLE: intensive probation; community supervision; search
State of Arizona
House of Representatives
First Regular Session
amending sections 13‑914 and 41‑1604.07, Arizona Revised Statutes; relating to search and seizure.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-914, Arizona Revised Statutes, is amended to read:
13-914. Intensive probation; evaluation; sentence; criteria; limit; conditions
A. An adult probation officer shall prepare a presentence report for every offender who has either:
1. Been convicted of a felony and for whom the granting of probation is not prohibited by law.
2. Violated probation by commission of a technical violation that was not chargeable or indictable as a criminal offense.
B. The adult probation officer shall evaluate the needs of the offender and the offender's risk to the community, including the nature of the offense and criminal history of the offender. If the nature of the offense and the prior criminal history of the offender indicate that the offender should be included in an intensive probation program pursuant to supreme court guidelines for intensive probation, the adult probation officer may recommend to the court that the offender be granted intensive probation.
C. The court may suspend the imposition or execution of the sentence and grant the offender a period of intensive probation in accordance with this chapter. Except for sentences that are imposed pursuant to section 13‑3601, the sentence is tentative to the extent that it may be altered or revoked pursuant to this chapter, but for all other purposes it is a final judgment of conviction. This subsection does not preclude the court from imposing a term of intensive probation pursuant to section 13‑3601.
D. When granting intensive probation the court shall set forth on the record the factual and legal reasons in support of the sentence.
E. Intensive probation shall be conditioned on the offender:
1. Maintaining employment or maintaining full‑time student status at a school subject to title 15 or title 32, chapter 30 and making progress deemed satisfactory to the probation officer, or both, or being involved in supervised job searches and community restitution work at least six days a week throughout the offender's term of intensive probation.
2. Paying restitution and probation fees of not less than seventy-five dollars unless, after determining the inability of the offender to pay the fee, the court assesses a lesser fee. Probation fees shall be deposited in the adult probation services fund established by section 12‑267. Any amount assessed pursuant to this paragraph shall be used to supplement monies used for the salaries of adult probation and surveillance officers and for support of programs and services of the superior court adult probation departments.
3. Establishing a residence at a place approved by the intensive probation team and not changing the offender's residence without the team's prior approval.
4. Remaining at the offender's place of residence at all times except to go to work, to attend school, to perform community restitution and as specifically allowed in each instance by the adult probation officer.
5. Allowing administration of drug and alcohol tests if requested by a member of the intensive probation team.
6. Performing not less than forty hours of community restitution each month. Full‑time students may be exempted or required to perform fewer hours of community restitution. For good cause, the court may reduce the number of community restitution hours performed to not less than twenty hours each month.
7. Meeting any other conditions imposed by the court to meet the needs of the offender and limit the risks to the community, including participation in a program of community punishment authorized in title 12, chapter 2, article 11.
8. Agreeing in writing to allow a certified peace officer, with or without a warrant, to conduct a search of the person based on reasonable suspicion at any time of the day or night. This paragraph does not authorize a peace officer to conduct a search for the sole purpose of harassment.
Sec. 2. Section 41-1604.07, Arizona Revised Statutes, is amended to read:
41-1604.07. Earned release credits; forfeiture; restoration
A. Pursuant to rules adopted by the director, each prisoner who is in the eligible earned release credit class shall be allowed an earned release credit of one day for every six days served, including time served in county jails, except for those prisoners who are sentenced to serve the full term of imprisonment imposed by the court.
B. Release credits earned by a prisoner pursuant to subsection A of this section shall not reduce the term of imprisonment imposed by the court on the prisoner.
C. On reclassification of a prisoner resulting from the prisoner's failure to adhere to the rules of the department or failure to demonstrate a continual willingness to volunteer for or successfully participate in a work, educational, treatment or training program, the director may declare all release credits earned by the prisoner forfeited. In the discretion of the director forfeited release credits may subsequently be restored. The director shall maintain an account of release credits earned by each prisoner.
D. A prisoner who has reached the prisoner's earned release date or sentence expiration date shall be released to begin the prisoner's term of community supervision imposed by the court or term of probation if the court waived community supervision pursuant to section 13‑603, except that the director may deny or delay the prisoner's release to community supervision or probation if the director believes the prisoner may be a sexually violent person as defined in section 36‑3701 until the screening process is complete and the director determines that the prisoner will not be referred to the county attorney pursuant to section 36‑3702. If the term of community supervision is waived, the state department of corrections shall provide reasonable notice to the probation department of the scheduled release of the prisoner from confinement by the department. If the court waives community supervision, the director shall issue the prisoner an absolute discharge on the prisoner's earned release credit date. A prisoner who is released on the earned release credit date to serve a term of probation is not under the control of the state department of corrections when community supervision has been waived and the state department of corrections is not required to provide parole services.
E. Notwithstanding subsection D of this section, a prisoner who fails to achieve functional literacy at an eighth grade literacy level shall not be released to begin the prisoner's term of community supervision until either the prisoner achieves an eighth grade functional literacy level as measured by standardized assessment testing or the prisoner serves the full term of imprisonment imposed by the court, whichever first occurs. This subsection does not apply to inmates who either:
1. Are unable to meet the functional literacy standard required by section 31‑229.02, subsection A, due to a medical, developmental or learning disability as described in section 31‑229, subsection C.
2. Are classified as level five offenders.
3. Are foreign nationals.
4. Have less than six months incarceration to serve on commitment to the department.
F. The department shall establish conditions of community supervision it deems appropriate in order to ensure that the best interests of the prisoner and the citizens of this state are served. As a condition of community supervision the director may order a released prisoner to participate in an appropriate drug treatment or education program that is administered by a qualified agency, organization or individual approved by the department of health services and that provides treatment or education to persons who abuse controlled substances. Each person who is enrolled in a drug treatment or education program shall pay for the cost of participation in the program to the extent of the person's financial ability. Additional conditions may include participation in a rehabilitation program or counseling and performance of community restitution work, except that if the prisoner was convicted of a violation of sexual conduct with a minor under fifteen years of age or molestation of a child under fifteen years of age, the department shall impose as a condition of community supervision a prohibition on residing within four hundred forty feet of a school or its accompanying grounds. If a prisoner who reaches the prisoner's earned release credit date refuses to sign and agree to abide by the conditions of supervision before release on community supervision, the prisoner shall not be released. When the prisoner reaches the sentence expiration date, the prisoner shall be released to begin the term of community supervision. If the prisoner refuses to sign and agree to abide by the conditions of release, the prisoner shall not be released on the sentence expiration date and shall serve the term of community supervision in prison. The department is required to supervise any prisoner on community supervision until the period of community supervision expires. The department may bring a prisoner who is in violation of the prisoner's terms and conditions before the board of executive clemency. For the purposes of this subsection, "school" means any public, charter or private school where children attend classes.
G. The director pursuant to rules adopted by the department shall authorize the release of any prisoner on the prisoner's earned release credit date to serve any consecutive term imposed on the prisoner. The release shall be for the sentence completed only. The prisoner shall remain under the custody and control of the department. The director may authorize the rescission of the release to any consecutive term if the prisoner fails to adhere to the rules of the department.
H. If a prisoner absconds from community supervision, any time spent before the prisoner is returned to custody is excluded in calculating the remaining period of community supervision.
I. A prisoner shall forfeit five days of the prisoner's earned release credits:
1. If the court finds or a disciplinary hearing held after a review by and recommendations from the attorney general's office determines that the prisoner does any of the following:
(a) Brings a claim without substantial justification.
(b) Unreasonably expands or delays a proceeding.
(c) Testifies falsely or otherwise presents false information or material to the court.
(d) Submits a claim that is intended solely to harass the party it is filed against.
2. For each time the prisoner tests positive for any prohibited drugs during the period of time the prisoner is incarcerated.
J. If the prisoner does not have five days of earned release credits, the prisoner shall forfeit the prisoner's existing earned release credits and shall be ineligible from accruing earned release credits until the number of earned release credits the prisoner would have otherwise accrued equals the difference between five days and the number of existing earned release credit days the prisoner forfeits pursuant to this section.
K. The director may authorize temporary release on inmate status of eligible inmates pursuant to rules adopted by the director within ninety days of any other authorized release date. The release authorization applies to any inmate who has been convicted of a drug offense, who has been determined to be eligible for participation in the transition program pursuant to section 31‑281 and who has agreed to participate in the transition program.
L. Before a prisoner is released to begin the prisoner's term of community supervision, the director shall require the prisoner to agree in writing as a condition of community supervision to allow a certified peace officer, with or without a warrant, to conduct a search of the person based on reasonable suspicion at any time of the day or night. This subsection does not authorize a peace officer to conduct a search for the sole purpose of harassment.