Drug testing results must be sufficiently reliable to meet due process standards
Cases pt. 1
People v. Bowden
People v. Bowden (Mich: Court of Appeals 2022)
Holding that expert drug recognition evaluator (DRE) could not opine defendant operated her vehicle under the influence of marijuana to a degree that rendered her unsafe to drive because conclusion regarding the degree to which a person’s driving ability was diminished by the use of marijuana are not reliable.
State v. Sampson
State v. Sampson, 6 P. 3d 543 – Or: Court of Appeals 2000
Holding that expert drug recognition evaluator (DRE) testimony is scientifically reliable and admissible.
See also State v. Brewer (Tenn Crim. App. 2020) (collecting cases admitting DRE testimony as scientific: Mace v. State, 944 S.W.2d 839 (Ark. 1997); State v. Daly, 775 N.W.2d 47, 58-59 (Neb. 2009) (citing U.S. v. Everett, 972 F. Supp, 1313 (D. Nev. 1997)); Williams v. State, 710 So. 2d 24 (Fla. App. 1998); State v. Kanamu, 112 P.3d 754 (Haw. App. 2005); State v. Klawitter, 518 N.W.2d 577 (Minn. 1994); State v. Aleman, 194 P.3d 110 (N.M. App. 2008); State v. Sampson, 6 P.3d 543 (Or. App. 2000); Wooten v. State, 267 S.W.3d 289 (Tex. App. 2008); State v. Baity, 991 P.2d 1151 (Wash. 2000); State v. Chitwood, 879 N.W.2d 786, 799 (Wis. Ct. App. 2016)).
Cases Pt. 2
State v. Cox
State v. Cox, Neb: Court of Appeals, 2021 (not published)
Although drug court participant is entitled to same procedural protections in a drug court termination hearing afforded to a probationer at a probation revocation hearing, no due process violations here.
State v. Seaman
State v. Seaman, 947 NW 2d 589 – Neb: Court of Appeals 2020
Defendant accorded full due process rights at termination hearing.
Gaither v. State
Gaither v. State, 296 So. 3d 553 (Fla. 5th DCA 2020)
A defendant participating in drug court pursuant to a plea agreement is entitled to the same due process as a probationer, before being terminated from the drug court program—citing the NDCI Judicial Benchbook and other authority.
State v. Wolf
State v. Wolf, Unpublished, (Wash: Court of Appeals, 3rd Div. 2/11/2020)
Appellate court rejects a host of claimed due process errors, including staffing issues.
Holsapple v. State
Holsapple v. State, 148 N.E.3d 1035 (Ind: Court of Appeals 5/6/2020)
Upon termination from drug court/mental health court, trial court the trial court was not obligated to impose the sanction stated in a strict liability plea agreement between the State and Holsapple upon finding a violation. The court could impose any consequence permitted by law.
State v. Cantrell
State v. Cantrell, 2019 Ohio 4718 (Ohio: Court of Appeals, 3rd Appellate Dist. 2019)
Court was authorized to revoke defendant’s probation because defendant’s conduct in providing drugs to other drug court participants was not mere technical violation.
Cases Pt. 3
State v. Noonan
State v. Noonan, 2019 Ohio 2960 (Ohio: Court of Appeals, 12th Appellate Dist. 2019)
Termination from community corrections sentence and sentence to incarceration improper, where defendant’s noncompliance due to medical condition beyond her control, thus involuntary.
State v. Echols
State v. Echols, Wash: Court of Appeals, (1st Div. 2020 Not selected)
Indictment alone insufficient to establish violation of drug court rules by a preponderance of the evidence.
Bass v. State
Bass v. State, 2019 Ark. App. 407 (Ark: Court of Appeals, 4th Div. 2019)
Defendant had full opportunity to litigate the three strikes which formed the basis of his revocation, thus no due process violation.
Meeks v. State
Meeks v. State, (Ind: Court of Appeals 3/29/2019)
Defendant’s due process rights were not violated in termination from drug court when she was given notice that she had violated drug court rules generally and her counsel had sufficient information about the evidence against the client, as demonstrated by the record.
Cripe v. State
Cripe v. State, Ind: Court of Appeals 9/7/2018(not selected)
Defendants due process rights not violated when he was terminated from drug court.
State v. Cabe
State v. Cabe, (Wash: Court of Appeals, 2nd Div. 2018)
When defendant is terminated from drug court and sentenced, the refusal to consider a sentencing alternative is an abuse of discretion. As stated in State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005)”where a defendant has requested a sentencing alternative authorized by statute, the categorical refusal to consider the sentence, or the refusal to consider it for a class of offenders, is effectively a failure to exercise discretion and is subject to reversal.”
Cases Pt. 4
Superior Court of New Jersey
IN THE MATTER OF WEAPONS SEIZED PURSUANT TO PREVENTION OF DOMESTIC VIOLENCE ACT FROM JS, (NJ: Appellate Div. 2018) (court could not take judicial notice that total abstinence was the policy of drug courts particularly when notice not given to parties of intent to take judicial notice)
People v. Dowd
People v. Dowd, Cal: Court of Appeal, (4th Appellate Dist., 2nd Div. 2018)
Not selected for publication (pre hearing waiver of probation revocation hearing upon entry into drug court did not violate due process if waiver was knowing, voluntary and intelligently given.
The Practitioner’s Guide to Due Process Issues in Veterans Treatment Courts
Tsai, Evan C. (2017) “The Practitioner’s Guide to Due Process Issues in Veterans Treatment Courts,” Mitchell Hamline Law Review: Vol.43 : Iss. 3 , Article 4.
State v. Estes
State v. Estes, Not Selected for Publication, ___ P. 3d ___, (Idaho Court of Appeals 12/14/17)
Because defendant was on regular probation, not a diversionary after plea, he did not have the same due process rights on termination from mental health court, but did have full due process rights on petition to revoke probation. His liberty interest was in remaining on probation, not remaining in drug court.
Washington v. Commonwealth
Washington v. Commonwealth, (Va. Court of Appeals 11/14/2017)
Appellant did not prove a Fourteenth Amendment due process violation that occurred in the drug treatment court and entitled him to relief in the circuit court revocation proceeding. Additionally, the appellant received his due process rights to notice and a hearing in the circuit court revocation proceeding regarding his earlier termination from the drug treatment court program. Finally, to the extent that the appellant may have been able to assert an entitlement to more process in the circuit court revocation proceeding, he failed to make a contemporaneous objection that the level of process he received in that proceeding was insufficient.
State v. Barraza
State v. Barraza, ____ P.3d ___ (NM Court of Appeals 2017)
Defendant received sufficient due process protections in her termination from drug court and the judge was not required to recuse.
Cases Pt. 5
Neal v. State
Neal v. State, 2016 Ark. 287 (Ark. Sup. Ct. 6/30/16)
Citing Laplaca and Staley, infra , Ark. Sup. Ct. holds: “[T]he right to minimum due process before a defendant can be expelled from a drug-court program is so fundamental that it cannot be waived by the defendant in advance of the allegations prompting the removal from the program.”
Idaho v. Keene
Idaho v. Keene, 2016 Unpublished Opinion 595 (Ida. App 7/13/16)
Much like probation revocation, it is appropriate for the drug court to consider a multitude of factors in making its discharge determination; thus, it was appropriate to consider Keene’s lack of progress and honesty issues in deciding to discharge Keene from drug court. See Upton, 127 Idaho at 275, 899 P.2d at 985. As such, there was no due process violation that occurred in Keene’s discharge from drug court.
People v. Shipp
People v. Shipp, 2016 NY Slip Op 3304 (NY: Appellate Div., 4th Dept. 2016)
Inasmuch as defendant’s failure to appear in court after his termination from drug treatment “constituted a proper basis for the court’s finding of noncompliance, it was unnecessary for the court to inquire into defendant’s complaints about the suitability of the [treatment] program and the circumstances of his termination.
State v. Kelifa
State v. Kelifa, Not Selected for Publication (Wash. App., 2015)
Court rejects arguments that closed drug court staffing meetings preceding his termination violated constitutional rights to a public trial and to be present at all critical stages of a prosecution citing State v. Sykes, 182 Wn.2d 168, 339 P.3d 972 (2014)
State v. Mayfield
State v. Mayfield (Iowa App., 2015)
Defendant’s assertion that counsel’s failure to require record stated an ineffective assistance claim under Strickland.
Parsons v. McCann
Parsons v. McCann, (D. Neb. 2015)
Court denies in part 42 U.S.C. § 1983 action stemming from plaintiff Dakota Parsons’ 29-week stay in the Douglas County Corrections Center while he was a participant in Young Adult Court, allegedly without a probable cause hearing, without being charged with an offense, and without the opportunity to be released on bond.
Cases Pt. 6
State v. LeClech
State v. LeClech, Washington Court of Appeals, NOT SELECTED (6/15/15)
Where defendant asserted due process violation for not being permitted to be present at staffing, Appellate court rejected assertion finding he had waived right to be present and further noted: The Washington and United States Constitution guarantee a criminal defendant’s `fundamental right to be present at all critical stages of a trial.’” Washington courts analyze alleged violations of a defendant’s right to be present by applying federal due process jurisprudence. This court reviews de novo a claimed violation of the right to be present.
A defendant’s right to be present at a proceeding is required “whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.’” However, this right is not absolute. “`[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence.” Thus, the right is not triggered when a defendant’s “`presence would be useless, or the benefit but a shadow.’….Just as closed staffings are critical to the success of drug court in the context of public trial rights, the presence of the defendant at staffings would frustrate the collaborative purpose of drug court. In this setting, LeClech does not establish a violation of his right to be present.
State v. Snow
State v. Snow, Not Selected for Publication, 32144-4-III (Wash. App. 12-9-2014)
Defendant’s due process rights were not violated during termination procedure, including relying on reports reflecting dilute drug samples, particularly where he did not contest testing result.
Tate v. State
Tate v. State, 2013 OK CR 18, 313 P.3d 274 (2013)
We find that this due process guarantee is also applicable to mental health court termination proceedings. Therefore, a mental health court participant must be sufficiently apprised as to the evidence and the grounds upon which his or her participation in the mental health court is terminated. See Hogar, 1999 OK CR 35, 990 P.2d at 899 (applying this same rule to drug court termination proceedings.
Sonnier v. State
Sonnier v. State, 334 P. 3d 948 (Okla. Court of Criminal Appeals 2014)
This Court has held that a defendant who is terminated from participating in a diversionary program is entitled to due process.
State v. Kong
State v. Kong, 315 P.3d 720 (Haw. 2013)
Defendant’s self-termination from drug court was voluntary.
State v. Workman
State v. Workman, 22 Neb. App. 223 (2014)
The minimal due process to which a parolee or probationer is entitled also applies to participants in the drug court program. This minimal due process includes (1) written notice of the time and place of the hearing; (2) disclosure of evidence; (3) a neutral fact finding body or person, who should not be the officer directly involved in making recommendations; (4) opportunity to be heard in person and to present witnesses and documentary evidence; (5) the right to cross-examine adverse witnesses, unless the hearing officer determines that an informant would be subjected to risk of harm if his or her identity were disclosed or unless the officer otherwise specifically finds good cause for not allowing confrontation; and (6) a written statement by the fact finder as to the evidence relied on and the reasons for revoking the conditional liberty. The standard of proof for termination from drug court participation is preponderance of the evidence.
Cases Pt. 7
State v. Bishop
State v. Bishop, 429 N.J. Super. 533 (2013), affirmed, per curiam , 10/21/15
Recognizing that both drug court and traditional court defendants should be similarly treated upon probation revocation, the court said: “The carrot-and-stick approach is integral to the Drug Court concept. Prison-bound offenders are given an opportunity to be diverted from a state prison sentence if they are willing to avail themselves of the rehabilitative opportunities available in Drug Court in an effort to free themselves from the recurring cycle of drug dependency and criminal activity. The legislative history of the 1999 amendments includes the Report to the Governor by the Attorney General on the Need to Update the Comprehensive Drug Reform Act of 1987, December 9, 1996. That document “call[ed] for new ways to support drug court programs. One way is to provide judges with new legal tools with which to ‘leverage’ addicts into treatment.” Id. at 18 (emphasis added). The legislation that followed created special probation, as distinguished from regular probation, and established the new resentencing provision applicable upon revocation of special probation……. The ultimate motivation or leverage, a tool needed to enable Drug Courts to operate effectively, is the threat of the substantial sentence that would have been imposed originally if the defendant were not admitted to Drug Court through special probation.”
Tennessee v. Creech
Tennessee v. Creech, Court of Criminal Appeals of Tennessee, at Nashville. Filed April 26, 2013.
Any unilateral termination from drug court was harmless in light of full blown evidentiary hearing on probation revocation.
Gibson v. Kentucky
Gibson v. Kentucky, No. 2011-CA-001368-MR.,Court of Appeals of Kentucky, Rendered: January 18, 2013.
Finding that the defendant was accorded due process in his termination form drug court, the appellate court observed the following to be a proper trial court consideration in termination: “Gibson’s unwillingness or inability to adopt basic tenants of Drug Court, such as honesty, constituted continued “addict thinking” and reflected negatively on Gibson’s ability to remain compliant and crime-free within the community.
Gross v. State of Maine
Gross v. State of Maine, Superior Court case # CR-11-4805 (2/26/13)
Drug court procedures relating to termination violative of due process and, therefore, unconstitutional. Drug Court participant entitled to: notice of the termination allegations and the evidence against him, right to call and x-examine witnesses, a hearing at which he is present, a neutral magistrate, written factual findings and the right to counsel. Here, the drug court team discussed the termination decision during the termination hearing, without defendant’s presence or that of his counsel. That procedure coupled by the fact the Superior Court felt that the drug court judge should have recused, resulted in a finding of constitutional infirmity. Moreover, the appellate court ruled the defendant did not, arguably could not prospectively waive his rights, citing LaPlaca and Staley.
People v. Woodall
People v. Woodall, D062005 (Cal. App. 6-3-2013)
Defendant not per se entitled to an arrest warrant/sworn affidavit for a probation violation-the touchstone being reasonableness, nor is defendant entitled to a PC determination on a probation revocation proceeding unless he will be incarcerated for some lengthy time before a hearing.
Arizona v. Tatlow
Arizona v. Tatlow, No. 1 CA-CR 11-0593, Court of Appeals of Arizona, Division One, Department C. (December 4, 2012)
No Federal Confidentiality Law, 42 CFR, part 2 violation for judge to take judicial notice of violations of treatment obligations at probation revocation hearing.
Cases Pt. 8
Arizona v. Perez Cano
Arizona v. Perez Cano, No. 1 CA-CR 11-0473 Court of Appeals of Arizona (September 20, 2012) UNPUBLISHED
Defendant did not prove drug court termination hearing violated Federal Confidentiality Law and judge was not required to recuse.
Grayson v. Kentucky
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.
Tornavacca v. State
Tornavacca v. State, 2012 Ark. 224 (2012)
Although the majority finds that defendant’s due process rights were not violated during his drug court termination hearing, the dissent finds that status hearing where the initial decision was made to remove defendant from drug court violated his due process rights because he did not get to contest the allegations then although he was represented by counsel and a termination hearing 4 months later did not cure the due process violation.
People v. Freeman
People v. Freeman, No. E052780, Court of Appeals of California, Fourth District, Division Two, UNPUBLISHED (1/23/12)
Defendant surrendered his right to a drug court termination hearing in his drug court contract and waived his right to have a record of drug court proceedings and the presumption of proper proceedings was not overcome, therefore defendants termination and sentence was upheld.
State v. LaPlaca
State v. LaPlaca, 27 A.3d 719 (New Hampshire 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. The court left for another day whether such pre hearing waiver was valid for the drug court sanctioning process)
People v. Sharrieff
People v. Sharrieff, No. E052552.Court of Appeals of California, Fourth District, Division Two. Filed April 30, 2013. NOT SELECTED FOR PUBLICATION
Defendant may prospectively waive right to probation revocation hearing.
State v. Shambley
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.
Bonn v. Commonwealth
Bonn v. Commonwealth, No. 2009-CA-002304-MR. (Court of Appeals of Kentucky, May 6, 2011) UNPUBLISHED
Defendant not entitled to continuance of drug court termination hearing to obtain an expert who could testify that defendant’s 3 positive drug tests were due to sexual contact with cocaine users and sweat from barbershop customers.
Cases Pt. 9
People v. Fiammegta
People v. Fiammegta, 14 N.Y.3d 90, 923 N.E.2d 1123 (2010)
Where defendant was under suspended sentence on condition of completion of treatment program and he is discharged based upon alleged criminal activity, the court “was not required to conduct an evidentiary hearing in this case, or to determine by a preponderance of the evidence that defendant was guilty of the thefts of which he was accused. But the judge should have considered defendant’s argument that he was kicked out of the program based on thin evidence of wrongdoing after inadequate investigation; and he should have allowed defendant to submit letters and testimony or affidavits from his mother and girlfriend about the money they claimed to have sent him.”
Gosha v. State
Gosha v. State, 927 N.E.2d 942, 942 (Ind. Ct. App. 2010)
Court explained that termination from drug court requires the written notice of the claimed violations, the disclosure of the evidence against the defendant, the opportunity to be heard and present evidence, the right to confront and cross-examine witnesses, and a neutral and detached judicial officer.
Harris v. Commonwealth
Harris v. Commonwealth, 689 S.E.2d 713 (Va. 2010)
Participation in drug court implicates a due process liberty interest and at termination and ultimate sentencing defendant has a right to be heard.
People v. Kimmel
People v. Kimmel, 24 Misc.3d 1052, 882 N.Y.S.2d 895 (2009)
Holding that defendant not entitled to a hearing per se, but was entitled to make a statement and have counsel present– relying upon Torres v. Berbary, 340 F. 3d 63, 63 (2d Cir. 2003).
State v. Perkins
State v. Perkins, 661 S.E. 2d 366, 366 (S.C. Ct. App. 2008)
Holding that termination decision not reviewable, but defendant entitled to notice and hearing on whether defendant violated conditions of his suspended sentence by being terminated from drug court.
Lawson v. State
Lawson v. State, 969 So.2d 222, 222 (Fla. 2007)
Holding that the right to receive adequate notice of the conditions of probation is in part realized through the requirement that a violation be substantial and willful, however, the court need not define how many violations it will take to constitute a willful violation.
State v. Rogers
State v. Rogers, 170 P. 3d 881, 881 (Idaho 2007)
Holding that termination hearings required in drug courts, at least where defendant pled guilty and sentence deferred, reversing Court of Appeals decision that held that due process concerns were met by terms of drug court contract.
Cases Pt. 10
State v. Varnell
State v. Varnell, 155 P.3d 971, 971 (Wash. Ct. App. 2007)
Defendant had unilateral right to terminate from drug court by contract, so no hearing required when defendant requests to terminate other than his request before the court to terminate.
People v. Anderson
People v. Anderson, 833 N.E.2d 390, 390 (Ill. App. Ct. 2005)
Holding that drug court termination in a diversion court requires a hearing.
State v. Cassill-Skilton
State v. Cassill-Skilton, 94 P.3d 407, 410 (Wash. Ct. App. 2004)
Defendant entitled to a hearing when state moves to terminate.
Staley v. State
Staley v. State, 851 So.2d 805 (Fla. Dist. Ct. App. 2003)
Purported waiver of right to adversarial hearing at termination in drug court contract violated due process.
People v. Woods
People v. Woods, 748 N.Y.S.2d 222, 222 (2002)
Holding that the defendant was not entitled to a hearing, but noting every review was a hearing in which the defendant had an opportunity to participate.
Hagar v. State
Hagar v. State, 990 P.2d 894, 899 (Okla. Crim. App. 1999)
Defendant was statutorily entitled to notice of the grounds for termination.