37-2738. Sentencing criteria in drug cases. (1) Any person who pleads guilty to, is found guilty of or has a judgment of conviction entered upon a violation of the provisions of subsection (a), (b), (c) or (e) of section 37-2732, Idaho Code, shall be sentenced according to the criteria set forth herein.
(2) Prior to sentencing for a violation enumerated in subsection (1) of this section, the defendant shall undergo, at his own expense (or at county expense through the procedures set forth in chapters 34 and 35, title 31, Idaho Code), a substance abuse evaluation at a facility approved by the Idaho department of health and welfare. Provided however, if the defendant has no prior or pending charges under the provisions of subsection (a), (b), (c) or (e) of section 37-2732, Idaho Code, and the court does not have any reason to believe that the defendant regularly abuses drugs and is in need of treatment, the court may, in its discretion, waive the evaluation with respect to sentencing for a violation of subsection (b), (c)(3), or (e) of section 37-2732, Idaho Code, and proceed to sentence the defendant. The court may also, in its discretion, waive the requirement of a substance abuse evaluation with respect to a defendant’s violation of the provisions of subsection (a), (b), (c) or (e) of section 37-2732, Idaho Code, and proceed to sentence the defendant if the court has a presentence investigation report, substance abuse assessment, criminogenic risk assessment, or similar assessment which has evaluated the defendant’s need for substance abuse treatment conducted within twelve (12) months preceding the date of the defendant’s sentencing.
(3) In the event a substance abuse evaluation indicates the need for substance abuse treatment, the evaluation shall recommend an appropriate treatment program, together with the estimated costs thereof, and recommendations for other suitable alternative treatment programs, together with the estimated costs thereof. The person shall request that a copy of the completed evaluation be forwarded to the court. The court shall take the evaluation into consideration to determine an appropriate sentence. If a copy of the completed evaluation has not been provided to the court, the court may proceed to sentence the defendant; however, in such event it shall be presumed that substance abuse treatment is needed unless it is shown by a preponderance of evidence that treatment is not required. If the defendant has not made a good faith effort to provide the completed copy of the evaluation to the court, the court may consider the failure of the defendant to provide or report an aggravating circumstance in determining an appropriate sentence. If treatment is ordered, the person or facility performing the evaluation shall not be the person or facility that provides the treatment, unless this requirement is waived by the sentencing court, and with the exception of federally recognized Indian tribes or federal military installations where diagnoses and treatment are appropriate and available. Nothing herein contained shall preclude the use of funds authorized pursuant to the provisions of chapter 3, title 39, Idaho Code, for court ordered substance abuse treatment for indigent defendants.
(4) When sentencing an individual for the crimes enumerated in subsection (1) of this section, the court shall not enter a withheld judgment unless it finds by a preponderance of the evidence that:
(a) The defendant has no prior finding of guilt for any felony, any violation of chapter 80, title 18, Idaho Code, or subsection (a), (b), (c) or (e) of section 37-2732, Idaho Code, whatsoever; and
(b) The sentencing court has an abiding conviction that the defendant will successfully complete the terms of probation; and
(c) The defendant has satisfactorily cooperated with law enforcement authorities in the prosecution of drug related crimes of which the defendant has previously had involvement.
The requirements for the granting of a withheld judgment pursuant to this subsection shall not apply to a defendant who has been admitted to a problem solving court program approved by the drug court and mental health court coordinating committee and is participating in, or about to begin participating in, such a program, or who participated in such a problem solving court program in connection with the pending case and who successfully graduated from such a program prior to sentencing.
(5) Any person who pleads guilty to or is found guilty of a violation of the provisions of the Idaho Code identified in subsection (1) of this section shall, when granted a probationary period of any sort whatsoever, be required by the court to complete a period of not less than one hundred (100) hours of community service work.
[37-2738, added 1989, ch. 174, sec. 2, p. 423; am. 2003, ch. 285, sec. 1, p. 770; am. 2004, ch. 22, sec. 1, p. 24; am. 2016, ch. 161, sec. 1, p. 444.]