Supreme Judicial Court of Massachusetts, Middlesex
Heard: October 2, 2017.
received and sworn to in the Concord Division of the District
Court Department on June 13, 2016. A proceeding on violation
of probation was heard by Sabita Singh, J., and a question of
law was reported by her.
Supreme Judicial Court granted an application for direct
M. Newman-Polk (Benjamin H. Keehn, Committee for Public
Counsel Services, also present) for the defendant.
Granik, Assistant Attorney General, for the Commonwealth.
Belger for Massachusetts Medical Society & others.
M. Coakley & Rachel C. Hutchinson for National
Association of Drug Court Professionals.
Fitzgerald, pro se.
Matthew R. Segal & Adriana Lafaille for American Civil
Liberties Union of Massachusetts, Inc., & others.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
a probation violation hearing, a judge in the District Court
found that the defendant, Julie A. Eldred, had tested
positive for fentanyl, in violation of a condition of her
probation requiring her to abstain from using illegal drugs.
The judge ordered that the conditions of her probation be
modified to require her to submit to inpatient treatment for
drug addiction. The defendant appeals from that finding and
disposition. The judge also reported a question drafted by
the defendant concerning whether the imposition of a
"drug free" condition of probation, such as
appeared in the original terms of defendant's probation,
is permissible for an individual who is addicted to drugs and
whether that person can be subject to probation violation
proceedings for subsequently testing positive for illegal
conclude that, in appropriate circumstances, a judge may
order a defendant who is addicted to drugs to remain drug
free as a condition of probation, and that a defendant may be
found to be in violation of his or her probation by
subsequently testing positive for an illegal
drug. Accordingly, we affirm the finding that
the defendant violated her probation and the order requiring
her to submit to inpatient treatment for her addiction.
and prior proceedings.
18, 2016, the defendant was arraigned on a felony charge of
larceny for stealing jewelry valued over $250 from the home
of an individual for whom the defendant provided dog-walking
services. The defendant admitted to the police that she had
stolen the jewelry and had sold it to obtain money to support
her heroin addiction. On August 22, 2016, the defendant
admitted to sufficient facts to warrant a finding of guilt. A
judge in the District Court continued the defendant's
case without a finding, and imposed a one-year term of
probation with special conditions related to her substance
abuse that included requiring her to remain drug free, submit
to random drug screens, and attend outpatient substance abuse
treatment three times each week. Prior to accepting the terms
of her probation, the defendant did not object to the
condition that she remain drug free, or otherwise express
that her diagnosis of substance use disorder (SUD) rendered
her incapable of remaining drug free.
August 29, 2016, the defendant began outpatient addiction
treatment at a hospital. As a component of her treatment, an
addiction specialist prescribed the defendant a medication
that is used to treat symptoms of withdrawal and addiction to
September 2, 2016, only eleven days after the case had been
continued without a finding and the probation had been
imposed, the defendant tested positive for fentanyl,
following a random drug test administered by her probation
officer. The probation officer encouraged the defendant to
enter inpatient treatment, but the defendant allegedly
refused. The probation officer then filed a "Notice of
Probation Detention Hearing"with the District Court. The
detention hearing was conducted on the same day as the
defendant's positive drug test because, as her probation
officer testified, the defendant's parents were out of
town and "it was the Friday before Labor Day and [the
probation officer] felt that [the probation officer]
couldn't have [the defendant] leave [the probation
officer's] office testing positive for Fentanyl."
on the evidence presented at the hearing, the judge, who was
the same judge who had accepted the defendant's plea and
imposed the conditions of probation, determined that there
was probable cause to believe the defendant had violated the
"drug free" condition of her probation by using
fentanyl. Because defense counsel was not able to secure a
placement for the defendant at an inpatient treatment
facility, the judge ordered that the defendant be held in
custody until a placement became available. The defendant was
released into an inpatient treatment facility after ten days
November 22, 2016, a different District Court judge presided
over the defendant's probation violation hearing. Despite
conceding that she had used fentanyl, the defendant contested
that she had violated the terms of her probation. The
defendant argued, for the first time, that she had been
diagnosed with SUD, which rendered her incapable of remaining
drug free. In the defendant's view, her use of drugs
could not constitute a wilful violation of her probationary
condition to remain drug free. She submitted several
affidavits from experts in support of her claim; however, no
expert testimony was offered at the hearing to opine on SUD
or its potential effects on the brain.
judge determined that the defendant had violated the drug
free condition of her probation by testing positive for
fentanyl. The defendant filed a motion to vacate the
condition of probation requiring her to stay drug free,
arguing that the condition violated various State and Federal
constitutional rights. That motion was denied. The judge then
modified the conditions of the defendant's probation by
adding the condition that she continue inpatient treatment.
The judge also allowed the defendant's motion to report
to the Appeals Court the question concerning the imposition
of the condition of probation that the defendant remain drug
free. We granted the defendant's motion for direct