Miami-Dade County Drug Court was set up in the summer of 1989 by administrative order of the chief judge of Florida’s 11th Judicial Circuit. The Drug Court places defendants in a Treatment Program, monitors their progress, and decides whether they have recovered sufficiently to have their case dismissed. In essence, it is a treatment program overseen by a court.
Not every arrestee charged with a drug offense gets the chance to participate in Drug Court. Program eligibility is governed by Florida Statute 948.08(6)(a). To qualify, generally, a defendant must be charged with possessing or purchasing drugs, tampering with evidence (added 2001), solicitation for purchase (2001), obtaining a prescription by fraud (2001) and the state attorney must agree to diversion. Defendants who have a history of violent crime, have been arrested for drug sale or trafficking, or have more than two previous non-drug felony convictions (Administrative Order), are typically ineligible.
The program lasts for a minimum of twelve months, as per statutory requirement. Its main features are early identification of appropriate candidates, diversion from the ordinary course of prosecution, and keeping the case pending for a minimum of 12 months while the defendant rehabilitates him/herself from his/her drug addiction. This is done with frequent treatment, frequent court staff contact, relatively frequent court appearances for close monitoring by the judge, no prosecutorial use of tests, assessments, and written/oral admissions of drug usage, disinterest in the details of the pending charges, and use of incentives and sanctions, all leading to dismissal of charges earned by successful completion of treatment.
The central understanding needed is that once a defendant/client has actually signed up in open court to enter the program, there is a “paradigm shift” in courtroom procedures. This usually entails the quieting of Assistant State Attorney and criminal defense lawyers’ arguments, except when necessary. A non-adversarial approach is used and the Drug Court team is educated on the use of best therapeutic practices when working with the defendants. The client is supposed to perceive a “warm glow of care” and support from all court and treatment personnel, even in the course of some sanction procedures. Zealous advocacy continues, but within this unique procedural framework. This means that a criminal defense attorney will talk with the Drug Court staff and prosecutor extensively to work out whatever is needed prior to court.
At first consideration, one might feel that there is no need to try to talk a person without a “real” drug problem into Drug Court because the 12 month minimum of rehabilitation (the initial months of counseling being several times per week) will be a waste of time and money. The program is for “drug users.”
However, when does a client have a “real” drug problem? Proper screening and assessment is done to determine the appropriate treatment needs of each client. It is very important not to be so naive as to take at face value the sincere-sounding protestations of a client that he or she is not really a user, but was just going to try the drug this once or twice. One should probe more deeply and take the time necessary to have a real conversation regarding this crucial point. Without unduly scaring the client, he/she will be informed of the two future alternatives: diversion into Drug Court versus potential indictment, probable plea bargain offers given the particular criminal history and current case facts, and jury trial procedures and outcomes. The effects of each decision is discussed and its impact on the future years (applying for jobs, school , military, etc).
Also discussed will be the amount of effort involved and the daily or weekly schedule of rehabilitative counseling disrupting existing or hoped-for work schedules, the therapy sessions, the relationship that the client will have with the criminal defense attorney, judge, and the use of sanctions imposed for non-compliant events. The client will be informed that positive urine screens, just like admissions of relapse made to the treatment provider, the Drug Court staff, or in open court, including the State, will not be used against the client in any prosecution.
In short, the client will be made aware by the criminal defense attorney, while it is their case, their life, and ultimately their decision, the diversion into Drug Court, while requiring high effort, is relatively risk-free legally and that, with few exceptions, most clients should opt in. All court personnel will work for the client’s success. Clear communication with treatment personnel, court staff, and the Judge are key elements of the program in order to assist the client in recovery. If the client fails the program, he/she is put back to the stage of prosecution at which he/she entered Drug Court.
Weeding out the ineligible applicants, squeezing in the others.
Become familiar with the statutory limitations on admission into Drug Court. Be honest in your discussions with the Court for choosing the Drug Program. A client should not choose the program if his/her only motivation is his/her desire to have the record sealed for employment or immigration purposes only. This is a program for drug rehabilitation and questionable motivation will be impossible to sustain through the full year (at a minimum) program. If there are specific placement factors to be considered, such as co-occurring disorders (mental health and substance abuse concerns) the Court should be informed so that appropriate treatment settings can be found.
Weeding out (or not) the client whose attitude increases the chance of failure.
Should a criminal defense attorney try to be faithful to the program and its overall success by not encouraging otherwise eligible clients with the “wrong” attitude to apply if the attorney or others in the screening process believe that their attitude will only result in their eventual failure? (The “wrong” attitude here refers to the desire to avoid prosecution rather than the desire to get off drugs.)
No! Address the problem directly. The client should be informed by the criminal defense attorney why many people, including some with Drug Court roles, believe that this attitude is the wrong one. Ask the Client to alter attitudes in the sense that the client should see the other benefits of the program, so that he/she may increase his/her chances at success, thereby achieving his/her initial goal of avoiding prosecution. Get the client to see that this attitude is one of priority, and that there is nothing wrong with having the dismissal as a high priority, as long as he/she understands that he/she will earn the dismissal through his/her efforts, and that a large benefit to the client personally and to society is the stopping or reducing of rearrests. This is an opportunity for the client to achieve long term recovery.
Realistically, the client must recognize that what he/she is agreeing to will take much effort on his/her part. No client be able to “slide” through this program. The experience of the treatment program personnel and the court in dealing with addicts will preclude a free ride to graduation from the program. The sanctions for noncompliance (such as skipping therapy appointments and court dates, or submitting dirty urine) will most likely result in more time in jail if the case were transferred out and adjudicated.
Often, the client will begin to see the overall benefits of the program. The client should be open to this broadening of perspective. In summary, the wrong attitude will only result in delayed success or eventual failure. But altering this attitude to include a rehabilitative goal, could lead to a success in this treatment program.
It goes completely against any criminal defense attorney’s grain not to argue to the court that the client should not receive a sanction (community service hours, jail time, etc) after he/she has been non-compliant with treatment. The purpose of small but swift and sure sanctions is to encourage the client’s adjustment back to compliance and to avoid his/her being terminated from Drug Court altogether.
The criminal defense attorney should discuss with the client whether the sanction proposed by the Drug Court staff is appropriate or whether the client wants his/her attorney to argue against it. If the Drug Court staff is recommending termination, the client will often want their criminal defense attorney to argue for a sanction instead. A defendant might withdraw rather than contest termination due to the severity of the non-compliance and their gauging of the futility of “asking to remain in the program.” Except in that situation, however, it is worth asking for the sanction in lieu of termination, as the Court is, properly, reluctant to terminate if it sees some hope of the client making a correction and completing the program.
Drug Program Description
The Court exercises a great deal of discretion in tailoring the program to meet the needs of each individual client. The Court will assess the needs of each client and refer to the appropriate services. A memorandum of Understanding exists between the Court and several treatment providers.
The County funds an outpatient substance abuse treatment program, know as the Diversion and Treatment Program (DATP). This program offers substance abuse services to adults eighteen (18) and over.
Clients are expected to comply with all services successfully and the client’s progress, or lack of, is reported to the Court. A minimum of two urinalysis per week is required and attendance to Twelve step Fellowship meetings may also be required. Individual counseling, group counseling, acupuncture, and a relapse prevention component are also offered.
Like other substance abusers in the early stages of recovery, many clients lapse into occasional drug use without necessarily reverting to regular daily use. When a client’s urine tests positive, or a client volunteers information about slips, the counselor reviews the events that preceded the lapse to help the person recognize the feelings or events that seemed to trigger renewed drug use. A relapse prevention component has been developed to assist clients through this difficult time when he/she relapses.
Only as a last resort, and very rarely, does the Court remove a client from the program. The judge makes every effort to find a way for treatment to work and to avoid prosecution. Rather than expel them from the program, treatment responses or program sanctions may be imposed when dealing with uncooperative clients if the judge feels the client is capable of recovery but is simply not trying hard enough to stay drug-free.
Benefits of the program
If the program is arduous and demanding, and the probable result of failure in the program is greater sanctions than would most often be encountered by defendants who opt out of the program, why should any client be counseled to choose Drug Court?
There are three primary benefits to the Drug Court program. First, upon successful completion of the program, for first time offenders, the case will be nolle prosequi. For other offenders, the case may be dismissed, or the case can have adjudication withheld.
Second, for first time offenders, upon successful completion of the program, their records can be sealed. They still must state that they have been arrested, but they have no convictions. This places the fate of a first time offender more squarely in his/her own control than it would if he/she took his/her chances on going to trial and possibly being found guilty. If he/she chooses the Drug Program, and makes a serious effort at changing his/her life and getting off drugs, then the client can be assured of no conviction being on his/her record. This has obvious benefits to future employment and career opportunities.
Finally, the program offers the chance to get off drugs and to change one’s life in a positive direction. Thousands of individuals have taken that chance to date in the Miami-Dade County Drug Court and succeeded. This program has proven itself one of the most successful in the country. Clients should be encouraged to take the program to avoid further problems with the law.
Contact Pagan & Stroleny, P.L. for your Miami and Broward county criminal defense needs. Former state prosecutors and experienced criminal defense attorneys Christopher Pagan and Julian Stroleny can help you during the entire legal process and can ensure that your rights are protected. Call us today at 305-615-1285 to schedule a free consultation and see how Pagan & Stroleny, P.L. can assist you with your case. For more information on how our law firm can help you, visit us online at http://www.pslaw.org.