John E. DeVito, Esq., of DeVito and Visconti, P.A.

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Drug Treatment v. Conviction


A person charged with a drug offense in Massachusetts is required to be advised by the court of his or her right to be examined by a psychiatrist or a physician to determine if he or she is a drug dependent person who could benefit from treatment. The defendant has five days within which to exercise his right to be examined. Statements made by the defendant to the physician are not admissible against the defendant.

If the defendant is determined to be a drug dependent person, the court may assign him to a facility for drug treatment for a period of not to exceed 18 months or the period of time equal to the maximum sentence he could receive if found guilty, whichever is shorter. It is within the court's discretion to determine whether or not the court will allow drug treatment in lieu of proceeding with the offense. Any drug criminal proceeding is stayed during the treatment period. If the defendant successfully completes the program, the criminal proceedings are dismissed.

This statute, permitting drug treatment in lieu of conviction, has been around for years; yet, it is rarely used. It is best designed for the serious drug abuser who is serious about treatment. Defendants will attempt to use this to avoid a serious drug offense involving serious jail time, such as a trafficking offense. It is unlikely that the court will accept drug treatment if a defendant is charged with trafficking. Exceptional circumstances would have to exist for the statute to be applied in a trafficking case.

If a defendant chooses this option the defendant must be serious about drug treatment and must recognize that the drug treatment will have to be inpatient for a minimum of 6 to 9 months with probable aftercare treatment. The end result, if successful in the treatment, is well worth the effort.

1 Comment

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