Doing the Due: Constitutional Issues in Drug Courts

Doing the Due: Constitutional Issues in Drug Courts

Judge William G. Meyer (ret.) Sr. Fellow Nat. Drug Ct. Institute Judicial Arbiter Group, Inc. 1601 Blake Street, Suite 400 Denver, Colorado 80202 List every 4th, 5th and 6th Amendment issue 4th Search and Seizure 5th Right against Self-Incrimination 6th Right to Counsel

Juvenile proceedings must be in conformity with the essentials of due process and fair treatment as guaranteed by the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States. In re Gault,

387 U.S. 1, 30, 87 S.Ct. 1428, 1445 (1967); IN RE R.W.S., 2007 ND 37 March 5, 2007. (1977). "[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone." In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Nicholas v. People, 973 P.2d 1213 (Colo. 1999); IN RE CT, 2006 WY 101, 140 P.3d 643 (2006) [email protected] 1. Drug Courts should not refer participants to AA and NA, because

such programs require that the participant, among other things: (a) appeal to God to address shortcomings (Step 5) and (b) by prayer, make contact with God (Step 7), which are violations of the Establishment Clause of the First Amendment. 1.TRUE 2. FALSE Working the twelve steps requires: Confess to God the nature of our wrongs

(Step 5); Appeal to God to remove our short comings (Step 7); By prayer and meditation to make contact with God to achieve the knowledge of his will (Step 11).

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . U.S. Constitution Amendment I applied to the states by the XIV Amendment of the U.S. Constitution. See also Lee v. Weisman, 505 U.S. 577, 587 (1992). Kerr v. Ferry, 95 F.3d 472, 479-80 (7th Cir. 1996) (prison violated Establishment Clause by requiring attendance at Narcotics Anonymous meetings which used God in its treatment approach);

Griffin v. Coughlin, 88 N.Y. 2d 674 (1996) cert. denied 519 U.S. 1054 (1997) (conditioning desirable privilege family visitation on prisoners participation in program that incorporated Alcoholics Anonymous doctrine was unconstitutional as violation of the Establishment Clause); Inouye v. Kemna, 504 F.3d 705 (9th Cir. 9-7-2007, amended on 10/3/07) )(Parole officer lost qualified immunity by forcing AA on Buddhist). Hanas v. Inner City Christian Outreach, 542 F. Supp. 2d 683 (E.D. Mich. 2008) (Drug Court program manager and drug court consultant held liable for actions related to referral to

faith based program, where they knew of participants objections while in the program and when the program denied the participant the opportunity to practice his chosen faith Catholicism) Voluntary program= Mandate AA okay? Morrissey v. Brewercondition due process (other constitutional rights) on privilege vs. right analysis rejected

OConner v. California, 855 F. Supp. 303, 308 (C. D. Calif.) (no Establishment Clause violation where DUI probationer had choice over program, including selfhelp programs that are not premised or monotheistic deity) In Re Restraint of Garcia, 24 P.3d 1091 (Wash. App. 2001) (same) Americans United v. Prison Fellowship,___F.3d ____ (8th

Cir. 12/3/07) (state supported non-coercive, nonrewarding faith based program unconstitutional First Amend. establishment clause violation, where alternative not available) LifeRing Recovery Rational Recovery Secular Organizations for Sobriety (SOS) 2. Conditions of Drug Court requiring that a person refrain from going to certain locales (area restrictions) such as any place that sells,

distributes, or possesses liquor violate the freedom of association rights in the First Amendment. 1. TRUE 2. FALSE Who uses place and area restrictions? Reasonable when narrowly drawn: 1) Whether the defendant has a compelling need to go through/to the area;

2) A mechanism for supervised entry into the area; 3) The geographic size of the area restricted, and 4) The relatedness between the restriction and the rehabilitation needs of the offender. See People v. Rizzo, 362 Ill. App. 3d 444 (2005). 3. A Drug Court should refrain from

ordering drug court participants from having association with a person with a prior conviction or arrest for a drug offense (association restriction) because: (1) it violates the First Amendment Freedom of Association Clause and (2) such an order is too vague, unless the defendant actually knows that the person has such a record. 1. TRUE 2. FALSE Watch who you hang out with

Not necessarily know that they are druggies or felons, look at what associates are doing and where they are Jones v. State, 41 P.3d 1247 (Wyo. 2001) (persons of disreputable character); State v. Hearn, ___ P.3d ___ (Wash. App. 2/6/06) (prohibition against associating with drug users or dealers constitutional); Birzon v. King, 469 F.2d 1241, 1242 (2nd. Cir. 1972); Commonwealth v. LaPointe, 759 N.E.2d 294 (Mass. 2001). 4. For all participants in your drug court, you require that they agree that they can be stopped, without any cause, and searched at any time

both personally, as well as their residence. Because this is a consent search, it is permitted under the Fourth Amendment. 1. TRUE 2. FALSE Probation and parolees---Not probable cause but reasonable suspicion Why? Reduced expectation of privacy and special need to control recidivism

Griffin v. Wisconsin, 483 U.S. 868 (1987); U.S. v. Knights, 534 U.S. 112 (2001). In parole case, mandatory search waiver constitutional and totally suspicionless search is upheld. Like Knights, but goes further because does not make a finding of reasonableness, but notes cannot be harassment

Compare State v. Ullring, 741 A.2d 1065 (Me. 1999) (search waiver as condition of bond constitutional); and In Re York, 9 Cal. 4th 1133 (Calif. 1995) (same) with Terry v. Superior Court, 73 Cal. App. 4th 661 (Cal. App. 1999) (4th Amendment waiver improper condition in diversion case, without statutory authority) and U.S. v. Scott, 450 F.3d 863 (9th Cir. 2006) (search waiver probably improper when person on bond).

5. You institute a drug court readiness program and as a condition of bond you require any person who has been arrested for drug possession or use to not use alcohol This requirement is impermissible if you order it in every case. 1. TRUE 2. FALSE . . Empirical evidence shows that there is a nexus between drug use and alcohol consumption. It is well documented that the use of alcohol lessens self-control and thus may create

a situation where the user has reduced ability to stay away from drugs. People v. Beal, 60 Ca. App. 4th 84 (Calif. App. 1997). People v. Watkins, No. 10CA0579, Court of Appeals of Colorado, February 2, 2012 (constitutional authorization to use medical marijuana did not trump statutory condition of probation prohibiting commission of crime including federal crime which includes use of marijuana) Beinor v. ICAO, 262 P.3d 970 (Colo. App.2011) (constitutional authorization to use medical marijuana did not trump employers prohibition against drug usage and firing w/o unemployment compensation benefits upheld) People v. Ray Earl Webb, No. D056735 (Court of Appeals of California, Fourth District, Division One, March 15, 2011) UNPUBLISHED (defendant not denied due process or other constitutional rights when he was rejected for drug court because he was taking strong narcotic medicines which would interfere with his ability to participate in the drug court program)

People v. Beaty, 181 Cal.App.4th 644, 105 Cal.Rptr.3d 76 (2010) (the authorized use of medical marijuana does not by itself make a nonviolent drug offender unamenable to the treatment mandated by Prop. 36) U. S. v. Small, ___F. Supp. 3d ___,Cause No. CR-10-91-BLG-RFC (D. Mont. 2010) (defendant on pre trial release not entitled to use medical marijuana even with a prescription and even though Montana Supreme Court permitted state probationers to do so. The court noted: The right to use marijuana, however, is not a fundamental right and the authority of the United States to prohibit the use of marijuana has already been decided. Gonzales v. Raich, 545 U.S. 1 (2005); Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007)) 6. You run a drug court, Nancy NonCompliant has been given 47 chances to comply with the program requirements she has not and the team feels, in the interest of program integrity, Nancy should be terminated. During a scheduled review hearing, the judge

tells Nancy tells her she has washed out of drug court. The termination process meets due process requirements. 1.TRUE 2. FALSE Procedural protections are due under the due process clause when the defendant will potentially suffer a loss to a recognized liberty or property right under the 14th Amendment. If due process applies, the question

remains what process is due. Fuentes v. Shevin, 407 U.S. 67 (1972). Morrissey v. Brewer, 408 U.S. 471 (1972). Wilkinson v. State, 641 S.E.2d 189 (Ga. App. 12/20/06) (As part of her drug court contract the defendant waived her ability to contest a search and move for recusal of the drug court judge). State v. Jones, 131 Wash. App. 1021 (unpub.) (Wash. App. 2006) (search waiver). Latxon v. State, 99 Ark. App. 1 (Ark. Cr. App. 2007) (holding that drug court participant was not entitled to sanction jail time as credit when drug court revoked and defendant sentenced because such credit not included in contract.).

STATE v. JEANTY, A136225 (Or. App. 10-14-2009) Jury trial waiver) What is required? P/C determination Written Notice Right to Appear Cross-Exam and call witnesses Independent magistrate

Written findings-reasons Gagnon v. Scarpelli, 411 U.S. 778, 781782 (1973). (probation) What about right to counsel? Revocation=Termination People v. Anderson, 833 N.E.2d 390 (Ill. App. 2005); State v.

Cassill-Skilton, 122 Wash. App. 652 (Wash. App. 2004); Hagar v. State, 990 P.2d 894 (Ok. 1999). In Re Miguel, 63 P.3d 1065, 1074 (Ariz. App. 2003) (juvenile). Due process concerns are therefore sufficiently allayed through the contract-based means commonly used to remedy breaches of agreements between the State and a defendant. By this opinion we do not wish to dissuade a judge from following termination procedures in drug court akin to those employed in a probation revocation process. To the contrary, in order to eliminate uncertainty

and the appearance of unfairness, we encourage courts to do so. What is recommended is not, however, the equivalent of what is required. As of January 2006, Idaho had forty-four drug courts in operation spread out over approximately twentythree counties and at differing levels of the judicial system within some counties. From the above discussion, it must be assumed that each drug court in Idaho operates uniquely and, therefore, the analysis in this case might not be applicable to any other particular drug court program in the state.

Not even mention the contract analysis Key was diversionary program where guilty plea entered Batista v. State, 951 So.3d 1008 (Fla. 4th Cir. 3/21/07) Pre-plea/diversion/ deferred prosecution terminationno right to a hearingstatutory program and contract not provide for a hearing. In

conflict with State v. Gorayeb, 510 So. 2d 1168 (Fla 3rd Cir. 1987) People v. Kimmel, 6/16/09---New York County Court-2009 N.Y. Slip 29259 Contract in MH Court/Drug Court no hearing but right to make unsworn statement and have counsel argue Defendant failed to appear for 8.5 months Relying on Torres v. Berbary, 340 F. 3d 63 (2nd Cir. 2003)

HARRIS v. COMMONWEALTH, 279 Va. 541 (2010) Consequently, because Harris had no opportunity to participate in the termination decision, when deciding whether to revoke Harris' liberty and impose the terms of the plea agreement deprived Harris of the opportunity to be heard regarding the propriety of the revocation of his liberty interest. GOSHA v. STATE, Gosha v. State, 927 N.E.2d 942 (Ind. Ct. App. 2010) In termination from drug court, due process rights include: written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and present evidence, the right to confront and crossexamine witnesses, and a neutral and detached hearing body

HUNT v. COMMONWEALTH, 326 S.W.3d 437 (Ky. 2010) summary probation revocation proceeding when defendant sentenced to probation with drug court as a condition of probation, where no evidence presented, but simple conclusory statements made and counsel appointed immediately prior to hearing violated due process) State v. Shambley, 281 Neb. 317 (2011) (Drug court program participants are entitled to the same due process protections as persons facing termination of parole or probation.) State v. LaPlaca, 27 A.3d 719 (New Hampshire, June 28, 2011) (Even where program manual provided: Any violation of the terms

and conditions of the [Program] shall result in the imposition of sanctions, without hearing, by the court as deemed fair and appropriate, consistent with statutory authority and the descriptions as outlined in the [Program] policy manual. The defendant waives any right(s) to any and all hearings. Termination of participation in the [Program] shall result in the imposition of the suspended prison sentences and fines without hearing. The defendant shall affirmatively waive any and all rights to a hearing, waiver pre-notice of allegations was not enforceable. Court relied upon Staley v. State, 851 So.2d 805 (Fla. Dist. Ct. App. 2003) Failure to provide the participant a pre termination hearing was a violation of due process in the context of removal from drug court and imposition of a suspended sentence.) See also Gross v. State of Maine, Superior Court case # CR-11-4805 (2/26/13

People v. Freeman not selected Calif. Ct Appeals 4th Dist. 2nd Div. 1/23/12--contra Urine instrumented immunoassay thin layer chromatography GC/MS non-instrumented cups sticks

Hair Patch SCRAM Saliva

People v. Dorcent, 29 Misc.3d 1165, 909 N.Y.S.2d 618 (2010) (SCRAM meets the Frye test of scientific reliability for admission in court) Berry v. Natl Med. Servs., 205 P.3d 745, 745 (Kan. App. Apr. 3, 2009) (Etg testing) Johnson v. State Med. Bd., 147 Ohio Misc.2d 121 (2008) (Etg testing, cutoff levels questioned) In re E. M., 728 N.W.2d 853 (Iowa App. 2007) (sweat patch reliable, unless evidence of environmental contamination)

Perez-Rocha v, Commonwealth, 933 A.2d 1102 (Pa. Commw. Ct. 2007) (Etg testing, cutoff levels questioned) 7. Non-Compliant asks that you recuse as the judge making the termination and sentencing decision because it would violate her due process rights to not have an impartial arbiter of her fate. The public defender and prosecutor think you should be the

determiner of the sentence because you know most about Nancy and, if you recuse, the case will be transferred to Judge Harry Hang-em. It is a due process violation to not recuse. 1. TRUE 2. FALSE Test: U.S. v. Ayala, 289 F.3d 16, 27 (1st Cir. 2002) (would the facts, as asserted, lead an objective reasonable observer to question the judges

impartiality) Appearance of Partiality Personal Knowledge extrajudicial source Canons Of Judicial Conduct Due Process

Requiring the District Court to act as Drug Court team member, evaluator, monitor and final adjudicator in a termination proceeding could compromise the impartiality of a district court judge assigned the responsibility of administering a Drug Court participants program. Therefore, in the future, if an application to terminate a Drug Court participant is filed, and the defendant objects to the Drug Court team judge hearing the matter by filing a Motion to Recuse, the defendants application for recusal should be granted

State v. Belyea, 160 N.H. 298, 999 A.2d 1080 (N.H. 2010) Defendant failed to show that a reasonable person would entertain significant concern about whether Judge Vaughan prejudged the facts or abandoned or compromised his impartiality in his judicial role on the drug court team. Also, Court did not have extrajudicial facts. Mary E. FORD v. Kentucky, and William E. Flener, v. Kentucky (Ky. Appellate April 30, 2010) Having same judge preside over drug court and revocation hearing is not a denial of right to impartial hearing/due process STATE v. STEWART, W2009-00980-CCA-R3-CD ***(Tenn. Crim. App. 8-18-2010)(not selected for publication) (drug court judge should not be judicial officer who determines revocation when judge previously observed violations, acted as team member, engaged in the drug court therapeutic process received ex parte communications in staffing because to do so would violate due process) Grayson v. Kentucky, No. 2011-CA-000399-MR. Court of Appeals of Kentucky UNPUBLISHED ( June 29, 2012) (defendant not denied due process in drug court termination hearing because she received notice of the evidence against her and

judge not required to recuse.) Arizona v. Tatlow, No. 1 CA-CR 11-0593, Court of Appeals of Arizona, Division One, Department C. (December 4, 2012) (no due process violation for judge to hear drug court termination and probation revocation) IN RE: M.W. and Mi. W. Minor Children, 2012 Ohio 5075 (2012) (no due process violation to have dependency/neglect trial court judge also preside over drug court, where respondent is in both courts) Arizona v. Perez Cano, No. 1 CA-CR 11-0473 Court of Appeals of Arizona (September 20, 2012) UNPUBLISHED (Judge was not required to recuse for drug court termination hearing.) Turner v. Arkansas, 2012 Ark. 357 (2012) (The fact that prosecutor and judge both received grant funding for drug court did not facially give rise to sufficient facts for recusal)

8. You have decided to keep Nancy NonCompliant in the program. She is now before you on alleged violation #48. The violation is one in which the team recommends jail. Nancy denies the substance of the alleged violation. It is a denial of due process for the court to refuse to give Nancy a hearing when the drug court participant disputes the conduct for which she is being sanctioned. 1. TRUE 2.FALSE

Hearing vs. non hearing Will defendant potentially suffer a loss to a recognized liberty or property right under the 14th Amendment. Gagnon v. Scarpelli, 411 U.S. 778, 781-782 (1973);Wolff v. McDonnell, 418 U.S. 539, 557 (1974) overruled on other grounds Sandlin v. Conner, 515 U.S. 472 (1995) In Re Miguel, 63 P.3d 1065, 1074 (Ariz. App. 2003). (juvenile entitled to hearing).

Thorne claims that, during the "sanctions" hearings that followed his failure to adhere to the drug court's rules, the allegations against him, the testimony of witnesses, and the presentation of evidence violated his Sixth Amendment rights. Id. at 57. Testimony, he asserts, was "made in secrete [sic] between the Drug Court and RACSB administrators, {Defendants Kelly Hale, Judith Alston and Sharon Gillian}," the RACSB, the Commonwealth's Attorney, and the state court judge, "to include whispered testimony to the presiding Judge at the bench, so as to exclude Plaintiff . . . from all measures of defense and redress commensurate with Due and Compulsory Process of Law."

Having reviewed the record, we are additionally troubled by the four or five occasions where the defendant in this case was "sanctioned" to significant jail time by the drug court team during the two years he participated in the program. Regardless, the net effect of these sanctions appears to be that approximately a half-year has been tacked onto the overall defendant's sentence. In other words, as things stand now, the defendant is appreciably worse off from a punitive perspective than if he had chosen not to participate in the drug court program at all and had simply elected to serve his suspended sentence in full from the outset

Leaving aside (as we must) the obvious due process concerns attendant to any additional deprivation of the defendant's liberty that has been imposed through a collaborative, non-adversarial, and at times ex parte process rather than through a traditional adversarial evidentiary hearing, there is considerable tension between this outcome and the general guidelines under which drug courts should operate. The drug court program explicitly recognizes that alcohol and drug addition "is a chronic, relapsing condition," that "many participants [will] exhibit a pattern of positive urine tests," and expressly contemplates that many participants will experience periods of relapse "[e]ven after a period of sustained abstinence."

The record below does not reveal to us whether the drug court in this case tried some of the more measured sanctions provided for in the guidelines viz., admonishment from the bench, program demotion, increased testing and court appearances, courtroom confinement, increased monitoring, fines, and community service without success prior to incarcerating the defendant for significant periods. See id. Even assuming it did so, however, the approximately six months, in all, imposed in this case would appear to be in plain tension with the idea that drug courts should adopt a therapeutic, collaborative, and measured response to a participant's noncompliant behavior. In the future, we trust that judges will do their best to ease this tension by ensuring that the drug court program focuses on drug addiction therapy and treatment, and recognizing that, for good reason,

punishment with substantial periods of incarceration is bailiwick of the traditional criminal justice system. When necessary, truly recalcitrant participants may be swiftly returned to the traditional system via the drug court expulsion process. We understand that similar to the ACDCP, many diversionary programs are informal in nature, and we do not want to unnecessarily impede the functioning of diversionary programs. The principles articulated in this opinion apply only when a participant in a diversionary program is facing termination from the program because that is when the participant faces a loss of liberty. Intermediate

sanctions imposed in these programs do not implicate the same due process concerns, and continued use of informal hearings and sanctions need not meet the procedural requirements articulated here. Under these circumstances, if a sentencing court chooses to find a defendant in contempt for violating conditions of probation as opposed to revoking or modifying the conditions of probation, the defendant must be afforded certain due process rights, including a hearing. Pace, supra at 395. There is no evidence from the record presented to us that any hearings were held or that the trial court made a finding of contempt

at any time during the course of Nicely's probation. To the contrary, each time Nicely was incarcerated, the court order clearly recited violations of the terms and conditions of the Drug Court Program. If the record were silent, we would remand this matter back to the trial court for an appropriate evidentiary hearing consistent with the holding in Cooke, supra. But, since the court previously found that Nicely violated the conditions of Drug Court, we believe the trial court abused its discretion when, nunc pro tunc, it found him in contempt as well. State v. LaPlaca, ___A.2d ___, Supreme Court of New Hampshire, (Opinion Issued: June 28, 2011)

Failure to provide the participant a pre termination hearing was a violation of due process in the context of removal from drug court and imposition of a suspended sentence. The court left for another day whether such pre hearing waiver was valid for the drug court sanctioning process IN RE INTEREST OF TYLER T., 279 Neb. 806 (2010) Given the therapeutic component of problem-solvingcourt programs, we are not prepared to say that each and every action taken in such a proceeding must be a matter of record. But we have no difficulty in concluding that when a judge of a problem-solving court conducts a hearing and

enters an order affecting the terms of the juvenile's probation, the proceeding must be on the record. We agree with other courts which have held that where a liberty interest is implicated in problemsolving-court proceedings, an individual's due process rights must be respected. 9. Calvin Cocaine is arrested in Polk County for possession. The DA is insisting on a felony plea or trial. In the adjacent county, Monroe County, there is a drug court where, Calvin could get a dismissal of the charges, upon successful completion of the drug

court. It is a equal protection violation, to not offer a drug court alternative. 1. True 2. False Discretionary entry or exclusion Suspect class or fundamental right-strict scrutiny Semi-suspect class / liberty interest-intermediate

scrutiny No suspect class--rational relationship to legitimate governmental interest State v. Harner , 103 P. 3d 738 (Wash. 2005) In Re Miguel, 63 P.3d 1065, 1074 (Ariz. App. 2003). Lomont v. State, 852 N.E.2d 1002 (Ind. App. 2006)

State of New Jersey v. Anthony SAXON, (N.J Sup Appellate Div. March 23, 2010) State of New York, Respondent, v. Jeffrey J. FORKEY, Appellant. April 8, 2010. Darrell W. PHILLIPS, Appellant v. STATE of Mississippi, Appellee. Court of Appeals of Mississippi. Jan. 12, 2010

State v. Woodard, No. A-5980-09T1., Superior Court of New Jersey, Appellate Division, Not selected for Publication, (September 23, 2011) (the standard is high to overturn a prosecutor's rejection of an applicant for the Drug Court program, in this case, the Drug Court judge had an ample basis to conclude that the standard had been met and that there was no reliable evidence that defendant was a gang member who posed a substantial threat to the community, thus entry into drug Court approved)

EVANS v. STATE, 293 Ga. App. 371 (2008) (Ga. App. 8/22/08) Defendant excluded from drug courtwas HIV positive equal protectionmeds ADA--major life activity PEOPLE v. WILLIAM ANDREW HENRY, C067258, Court of Appeals of California (July 17, 2012) UNPUBLISHED, (Although statute requires assessment of fees, termination of drug court cannot be sustained for non-payment without finding that defendant had ability to pay) State v. Shelton, 204 W. Va. 311, 512 S.E.2d 568 (1998) (Where defendant denied in home detention because he could not afford the monitor, and, thus, was remanded to jail to do his sentence, was a violation of equal protection to deny home detention based on indigency)

10. While Jack Joint is in drug court he is arrested for DUI. Before the DA can file charges, Jack is sanctioned for drinking and driving- 4 days work crew and referral to day treatment center. When the DA brings charges, Jack moves to dismissdouble jeopardy. The motion is well taken. 1. True 2. False

No multiple Criminal Prosecutions for same offense No multiple punishments for same offense UA revocation==deferred and probation violation consequence for not following original sentence. Witte v. U.S., 515 U.S. 398, 405 (1995) People v. Lopez, 97 P. 3d 223, affirmed other issues 113 P. 3d 713 (Colo. 2005) (sentencing for deferred judgment violations including positive UA tests not violate double jeopardy); see also

Doyle v. State, CA CR 08-530 (Ark. App. 2-18-2009) Vehicle forfeiture and license forfeiture not criminal penalties Curfew and mistreating animalssanctioned in drug court 53 days later DA filed new charges double jeopardy1. sanction in JDC like probation revo 2. Prob. Revo. not a stage of criminal proceeding not guilt or innocence but compliance with terms of supervision so no double jeopardy DiMeglio v. State, 2783 (Md. App. 9-29-2011)

(imposition of sanction for drinking and driving in DUI Court did not bar subsequent prosecution for DUI offense on double jeopardy grounds) Tennessee v. Michelle Lee, No. M2011-01669CCA-R3-CD. Court of Criminal Appeals of Tennessee, at Nashville. (Opinion Filed November 15, 2012) (recognizing in the termination of drug court and probation, the need to treat drug court participant who is engaged but still relapses more lenient than a participant who is not engaged.) In re the matter of R.A., 2012 OK CIV APP 65 (2012) (Based upon our review of the record, this Court finds the three ISPs

entered in this case failed to adequately address the actual "condition" Mother needs to correct her mental illness. Mother's substance abuse clearly follows and flows directly from her mental health condition. Matter of C.R.T., , 66 P.3d at 1010. Mother's history of significant trauma leading her to need to self-medicate is a condition that the psychological evaluation and Ms. Wilburn both conceded could not be corrected "solely through the efforts of Mother" without "medical, psychiatric, and psychological intervention." Id., 66 P.3d at 1009. As such, termination of Mother's parental rights based upon a failure to correct conditions where Mother's mental health condition was not correctly identified and/or addressed by DHS constitutes a violation of Mother's substantive due process rights.

State v. Sykes, ____ P. 3d ____ (Wash. 12/18/14) (Adult drug courts are philosophically, functionally, and intentionally different from ordinary criminal courts. Based on their unique characteristics, we hold that adult drug court staff meetings are not subject to the open courts provision of article I, section 10 of the Washington State Constitution. Whether adult drug court staff meetings are presumptively open or closed is left to the discretion of the individual drug courts.)

The end

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