Section 12-23-5

Request to enroll in program in lieu of drug prosecution; guidelines; conditions.

Any person arrested or charged with the violation of a controlled substance offense as set forth in Sections 13A-12-212, 13A-12-213 or 13A-12-214 may file a request with the district attorney having jurisdiction over the offense to enroll in a drug abuse treatment program in lieu of undergoing prosecution. Admission to such treatment program and deferral of prosecution may be granted at the discretion of the district attorney. The Office of Prosecution Services shall establish guidelines, which shall be used by the prosecutor in evaluating the request for diversion from the criminal justice system into rehabilitation. If prosecution has been initiated by the filing of a complaint, information or indictment, prior approval and dismissal of the case must be obtained from the judge presiding over the case. Admission to such treatment or rehabilitation program and deferral of prosecution is subject to the following conditions:

(1) The defendant must have no prior felony convictions for controlled substance offenses or other pending felony charges.

(2) Where the person arrested or charged is in violation of a controlled substance offense as set forth in Sections 13A-12-212, 13A-12-213 or 13A-12-214, they may request diversion. The amount of controlled substances involved, however, must not exceed the amounts below.

a. 113.2 grams or four ounces of cannabis;

b. Five grams of cocaine HCL or of any mixture containing cocaine, as described in Section 20-2-25(1);

c. 500 milligrams of cocaine base;

d. One gram of any morphine, opium or any salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 20-2-23(2) or Section 20-2-25(1)a, or one gram of any mixture containing any such substance;

e. Ten pills or capsules of methaqualone, as described in Section 20-2-1, et seq.;

f. Ten pills or capsules of barbiturate or benzodiazepine as described in Section 20-2-1, et seq.;

g. Five pills or capsules of hydromorphone, meperidine, pentazocine, hydrocodone, oxycodone, propoxyphene as described in Sections 20-2-1, et seq.;

h. One gram of 3, 4-methylenedioxy amphetamine, or of any mixture containing 3, 4-methylenedioxy amphetamine;

i. One gram of 5-methoxy-3, 4-methylenedioxy amphetamine, or any mixture containing 5-methoxy-3, 4-methylenedioxy amphetamine;

j. Fifty milligrams of phencyclidine, or any mixture containing phencyclidine;

k. Fifty milligrams of lysergic acid diethylamide or one gram of any mixture containing lysergic acid diethylamide;

l. Twenty pills or tablets of 3, 4-methylenedioxy methamphetamine; 3,4 methylenedioxy ethylamphetamine.

(3) If diversion to treatment is allowed, the offender shall:

a. Provide information needed to conduct an assessment of his treatment needs;

b. Complete the recommended treatment;

c. Complete a drug or alcohol testing program;

d. Pay restitution to his victim;

e. Unless indigent, pay for his assessment, treatment, and monitoring.

(4) If the defendant fails to complete treatment and pay the required costs, the prosecutor shall initiate charges against the defendant.

(Acts 1990, No. 90-390, p. 537, §5.)