Different County, Different Policies Regarding Drug/ DUI Charges

By Myles B. Schlam, J.D.,CAP/CCJAP/ICADC

Drug/ DUI Charges

Drug/ DUI Charges, as a Criminal Justice Addiction Professional in the State of Florida, I have had experience with multiple counties and their individual court systems. Interestingly there are major differences between some of the counties courts I have worked regarding the way they handle and process substance abuse cases, including DUI’s. Here are some facts: Dade County started one of the first Drug Court diversion programs in the country, followed by Broward County in 1991. Most of the other counties all have some form of Drug Court presently.

Broward County is the only county I know of having a Misdemeanor Drug Court division run by a county court judge. Instead of 1 year of treatment required, it is only 6 months, and then the case will be dismissed upon successful completion. The Broward Misdemeanor Judge has recently informed me that the court would also be accepting defendants who had other drug-related misdemeanor offenses such as Prostitution and Petit Theft. Palm Beach County is a bit more rigid in some respects than its counterparts in Broward or Dade. For example, if you are attending Drug Court in Palm Beach County, you must reside in Palm Beach County. In Broward, it is totally permissible for a client who lives in another county or even state to reside in their home residence and attend treatment in their resident county/state. In these cases, the treatment provider must still be approved by the Court and meet all requirements of Drug Court treatment providers. The client does not even have to be present at monthly status hearings so long as monthly reports are provided to the court. Also, In Palm Beach County, clients must call in to Pre-trial Supervision daily and if their “color” is called, they must provide a UA sample that day.

In Palm Beach Drug Court, there are 4 phases each client must complete. In Broward there are only 3. In both counties, treatment must be for the duration of at least one year and a maximum of 18 months. We had a recent case in Palm Beach County which was automatically filed into Drug Court. The client met the requirements of being a first time offender with no prior convictions. However, on our first Drug Court appearance, he was told by the court that he was disqualified from Drug Court due to the fact that he also had been charged with a DUI which was incidental to the drug charge. So in essence, a misdemeanor DUI disqualified an otherwise eligible and willing participant in Drug Court from getting treatment and the opportunity to have his case dismissed upon completion of Drug Court.

This would not have happened in Broward, as there the DUI count would have either been severed and sent to a misdemeanor court or a plea would be taken on the DUI, but in no case would a defendant have been disqualified from participating in Drug Court due to a concurrent DUI. It is my opinion that a DUI if anything is a strong indicator of probable substance abuse and especially when occurring incidental to a drug charge. When questioned about this policy, the Palm Beach Drug Court Administrator told me that they were working on getting a policy whereby Drug Offenders with a concurrent DUI would be eligible for Drug Court. Presently though, the DUI is considered an “aggravating factor” in Palm Beach County when concurrent with a Drug Possession charge, thereby disqualifying a person from the option of Drug Court. In contrast, the very same week I had another female client with no prior record at all who was charged with simple Drug Possession in Palm Beach County and the case was not filed directly to Drug Court. Instead it went to a regular felony division and now we will have to file a motion to have the case transferred to Drug Court.

Another example of Intra-county inconsistency involves DUI diversion programs. Dade County was the first in South Florida to implement such a program where first-time DUI offenders could have their case diverted and eventually dismissed after 6 months and completion of all requirements (DUI classes, Victim Impact classes, payment of fines, etc). Palm Beach county has just recently started their own DUI diversion program whereby the case will not be dismissed like Dade, but it can be reduced to a Reckless Driving. Reckless Driving is also a Misdemeanor and the same points are carried as with a DUI. The fine is also the same as is all the counseling and educational requirements. Orange County (Orlando area) also has a 1st time DUI diversion program.

The only significant differences are the Drivers License Suspension which is mandatory in a DUI, but not for a Reckless. Also Probation is rarely given in a Reckless Driving, but often is for a DUI. Most importantly, a defendant may be granted a “Withhold of Adjudication” on a Reckless Driving, but never for a DUI. The reason for this is because Florida State Statutes provide that all DUI’s must be adjudicated. A “Withhold of Adjudication” is very important because in that case a client may be eligible to have their criminal record Sealed. Because ASI has a special unit for Sealing and Expungement of criminal records, we always stress the importance of getting that Withhold of Adjudication. A conviction of any crime (Misdemeanor or Felony) will exclude a client from getting any record Sealed or Expunged EVER.

Broward County has yet to implement a diversion program for DUI’s and has strict minimum-mandatory sentences for two or more DUI’s. Two DUI’s within a 5 year period is a minimum-mandatory 10 days in jail. However, the courts in Broward have been consistently favorable in granting ASI’s clients the option of completing our court-approved treatment program in lieu of jail time or at least minimizing jail time. That is because the Judge has the discretion of considering residential treatment in lieu of jail time based on the individual circumstances surrounding each case. Likewise, we have also had a good success rate of having drug offender sentences converted or at least partially converted from jail time to our court-approved treatment programs. It is also important to have the consent of the State Attorney’s Office for any such alternative sentence.

The above are just examples of some of the differences in various counties court systems. In conclusion, it should be noted that most circuits and counties in Florida have their own unique systems and nuances in processing drug-related and DUI charges. It is important that the clients and their attorneys be familiar with these county-specific procedures. Each circuit/ county also has their own court administrators who will ensure that specific qualifications are adhered to. In order to more effectively serve our clients, ASI has hired attorneys from specific South Florida counties to handle our clients’ criminal charges and get the most favorable results for them. We review each client on a case-by-case basis taking into account all primary and external factors in their case.

In our experience, a criminal case can sometimes be the turning point for a substance addicted or abusing client. Our endeavor is to guide them through this process with the hopes that they will find recovery and not become recidivists in the criminal justice system. ASI is available for consultations and both in and out-of-custody evaluations by appointment only. We are also approved to conduct court-ordered evaluations. We work together with a large network of Treatment Providers throughout the Florida and the USA. Clients who suffer from a Mental Health Disorder in addition to Substance Abuse will be referred to one of our Dual Diagnosis facilities.

Myles B. Schlam is a nationally recognized expert in Drug Addiction and the Criminal Justice System and an Internationally Certified Alcohol and Drug Counselor (ICADC). He is one of approximately 100 Criminal Justice Addiction Professionals (CCJAP) in the State of Florida. Mr. Schlam is a graduate from St. Thomas University School of Law (Class of ’02) where he specialized in criminal law and interned with the Public Defender’s Office. ASI
is licensed by the Florida Department of Children and Families and operates in throughout the State of Florida.