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Commonwealth v. Eldred

Supreme Judicial Court of Massachusetts, Middlesex

July 16, 2018


          Heard: October 2, 2017.

         Complaint 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.

         The Supreme Judicial Court granted an application for direct appellate review.

          Lisa M. Newman-Polk (Benjamin H. Keehn, Committee for Public Counsel Services, also present) for the defendant.

          Maria Granik, Assistant Attorney General, for the Commonwealth.

          Amy M. Belger for Massachusetts Medical Society & others.

          Martha M. Coakley & Rachel C. Hutchinson for National Association of Drug Court Professionals.

          Steven 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.

          LOWY, J.

         Following a probation violation hearing, a judge in the District Court found that the defendant, Julie A. Eldred, [1]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 drugs.

         We 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.[2] Accordingly, we affirm the finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.

         Background and prior proceedings.

         On July 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.[3] 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.

         On 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 opiates.

         On 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"[4]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."

         Based 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 in custody.

         On 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.

         The 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 appellate review.[5]

         D ...

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