How To Get Into Drug Court

Some of you are too young to remember late fees.IMG_2927-300x225

Late fees involved renting a $3 movie and paying another $6.42 in late fees.  Late fees created that pit in your stomach when you glanced over at your coffee table, noticed a blue & yellow Blockbuster video box, and wondered to yourself “Wasn’t that supposed to be returned last week?”

Blockbuster made $800,000,000 per year on late fees. I’m pretty sure I contributed about $100/year to that pile of money, and it made me angry every time.  It’s not too far of a stretch to assume that most Blockbuster customers hated their late fees.  But solving problems will make you money, and one man’s problem is another’s opportunity.   So, a tiny company saw my late fees as an opportunity and did the seemingly impossible: video rental with no late fees.

Wow.  What a concept.  And that’s where the Netflix revolution began.

When I heard about this video rental company without late fees, my next question was: where do I sign up?  I gladly paid Netflix a monthly fee to mail me DVD’s long before Netflix was crowned the world’s largest movie production company.

Here’s the crazy thing: Blockbuster saw all of this unfolding.   They could have stopped it.  Yes, you know how this story ends, but as the story goes, someone in Blockbuster management with a “C” title (could have been a CEO, CFO, COO, who knows) proposed to their board that they do away with their late fees, as Netflix had done.

The board erupted in laughter.  “We ain’t giving up $800,000,000 in late fees, are you effing crazy?  We should fire you just for suggesting such…” (this is my fictional account of what happened in the board room, I’m sure they used actual curse words in the real meeting).

Blockbuster could have bought Netflix for pennies on the dollar  (just as Yahoo could have bought Google for pennies on the dollar, and the list goes on and on).   Yes, hindsight is 20/20, and as Yogi  said, “it’s tough to make predictions, especially about the future.”

Much like the Blockbuster vs. Netflix battle, I’m seeing a similar scenario unfolding with drug treatment.  Expensive inpatient treatment centers are not, necessarily, beating out their cheaper government-run competition.  A few years ago, an Ivy League college student client was busted for felony drug possession.  His parents sent him to a $32,000/month treatment facility.  Each month paid in full, in advance.  My client spent 3 months in the program (yes, wealthy parents).   After his release, he committed more felony drug crimes.  Eventually, my client’s parents agreed to try the cheaper, government-run drug court program.  Much to their surprise, it worked.

Drug court is one of the best programs invented by our criminal justice system.  The program allows folks who have been arrested for a non-violent crime to undergo a bit of drug counseling, but in the end, their felony charges will be dismissed.  Basically, if your drug problem is causing you legal problems, this program seeks to fix the underlying addiction so that the court system won’t see you again.  This is a win-win situation, right?

Yes, drug court works.

If you want your felony dismissed via drug court, there are some admission rules that must be followed.  Let’s go over these now.  Florida Statute 948.08 states that, to be admitted to the drug court program:

(1) you must have a drug problem, or be charged with possessing or purchasing a drug,

(2) you cannot have a prior felony conviction (so, prior withholds are fine)

(3) you cannot be charged with a violent crime.

As you can see, any possession of a controlled substance or purchase charge qualifies for drug court.  Also, many felony charges qualify for drug court that do not involve drugs.  A grand theft charge qualifies for drug court.  Dealing in stolen property qualifies for drug court.  Felony driving while license suspended qualifies for drug court.  And so forth, and so on.

There are two ways that you can be banned from drug court:

(1) if you’ve rejected a previous drug court offer, they’re not going to give you a second chance, and

(2) if the prosecutor can establish that you are somehow involved in drug dealing.

Now, our case for today involves an appeal because a client was denied entry into the drug court program because local rules prohibited his entry into the program.  In the case of Gincley v. State, the local chief judge entered an administrative order stating that “Each defendant has only one opportunity to have their case heard in Drug Court.  If a defendant is charged with a new offense and has already had a prior case heard and resolved in Drug Court, the new case will be heard in a regular criminal division”.  2019 Fla. App. LEXIS 4756 (Fla. 4th DCA 2019).

Gincley had gone thru the drug court program back in 2006, so he was denied a second chance at the program as per the local rule just mentioned above.  But Gincley’s defense attorney had read the statute we summarized above (948.08) and the funny thing is–the drug court statute makes no mention of how many times you may enter the program.  So, can a local judge pass a local administrative rule that makes it harder to enter a program than contemplated by the legislature when they enacted the law?

The good news is, the appeals court overturned Gincley’s denial of entry into the program, ruling that “the local administrative order clearly contravenes the enabling statute by adding terms and conditions that were not part of the original legislation.” id at 3.  The appellate court went on to say almost the same thing when they added that “Florida law does not recognize the authority of a chief judge, through the promulgation of an administrative order or otherwise, to create additional criteria or exceptions to Florida’s drug court statute.” id.