The COSA Holds Drug Court Sanction Involving Jail Is Appealable; Due Process Rights of Participants Violated When Drug Failed To Conduct Formal Adversarial Hearing.
Reported in the Court of Special Appeals (April 27, 2017): Brookman v. State (No. 182) & Carnes v. State (No. 183) (Nazarian, Arthur, Thieme, JJ.). Opinion by Nazarian, J. Argued by Isabelle Raquin, Steve Mercer on brief.
In these consolidated appeals from the imposition of sanctions by Montgomery County Circuit Court Drug Program, the COSA reversed the Drug Court, holding that the due process rights of participants Crystal Brookman and Marvin Carnes were violated when the Drug Court imposed sanctions including an overnight of incarceration without conducting a formal, adversarial hearing. The COSA also held that participants in a drug court program who are sanctioned in a manner that deprives them of liberty or extends their participation in the program have a right to appeal those sanctions in the same manner, and to the same extent, as violations of probation. Brookman & Carnes v. State, 232 Md. App. 489 (2017). No Maryland case has previously addressed the due process rights of participants in a drug court program who have been sanctioned for a program violation that deprives them of their liberty or extends their participation in the program.
This decision provides an important safeguard for participants in drug court, because the COSA rejected the State’s invitation to treat the consent of Ms. Brookman and Mr. Carnes to participating in the Drug Court program as a blanket waiver of their due process rights or a means to insulate the program from constitutional scrutiny. The COSA reasoned that the consent of participants to the protocols of the program demonstrated they had a liberty interest in the Drug Court conducting the formal adversarial hearing required by the agreement and Rule 16-207(e) before imposition of a sanction that included a loss of liberty or extension of the program. The Montgomery County Drug Court agreement signed by all participants explicitly provides that they “have the right to request and have a formal adversarial hearing before the imposition of a sanction of incarceration.”
While participating in Drug Court, Ms. Brookman twice tested below the accepted level for creatinine (a possible indication of a diluted urine sample), and the second result was treated as a positive drug test. Mr. Carnes appeared late for a urinalysis test, which was treated as a positive drug test. Because the Drug Court’s prefixed sanction for a positive drug test result included an overnight of incarceration, both requested a hearing pursuant to the Drug Court Participant Agreement and Maryland Rule 16-207(e). Also, Ms. Brookman filed a demand for chemist and persons in the chain of custody pursuant to Cts. & Jud. Proc. § 10-914. She also requested a continuance to consult with an expert.
At the separately conducted hearings, the Drug Court denied Ms. Brookman’s request for a continuance to consult with an expert, and refused to apply CJ § 10-914 to a sanctions hearing. At Mr. Carnes’ hearing, the Drug Court refused counsel’s request (Ms. Raquin) to treat the sanctions menu as guidelines or to consider Mr. Carnes’ individual circumstances. In both cases, the Drug Court assumed the existence of a program violation and imposed a prefixed sanction from a menu of program violations that included overnight incarceration. Neither Ms. Brookman nor Mr. Carnes were terminated from the Drug Court program.
Both filed applications for leave to appeal from the Drug Court order imposing sanctions, contending that their due process right to a “formal adversarial hearing” as required by the Drug Court agreement and Rule 16-207(e) had been violated. The State argued that a Drug Court order imposing sanctions short of termination from the program was not an appealable judgment, and in any event, both received all the process they were due at a formal adversarial hearing for a program violation. The COSA concluded that Ms. Brookman and Mr. Carnes may seek review by filing an application for leave to appeal and that they were entitled to notice, a hearing, and counsel pursuant to Rule 16-207(e) because, in the face of their alleged violations, they faced a loss of liberty or extension of time in the Drug Court program.
On the merits, the COSA held that neither Ms. Brookman nor Mr. Carnes received a formal, adversarial hearing. The COSA explained that Ms. Brookman did not receive the process that she was due because the Drug Court refused to provide her a meaningful opportunity to dispute the results of her urine test; it denied her request for a continuance so that she could retain an expert and analyze the results; it assumed the existence of the program violation; and it imposed a sanction by reference to the prefixed schedule of program violations. Thus, the hearing was not “adversarial.” The COSA emphasized [a]t the very least, she was entitled to an opportunity to review and analyze the test results and offer testimony in her defense before being incarcerated….” Id.
The COSA also explained that Mr. Carnes’ due process rights were violated because the Drug Court assumed the existence of a program violation, and it imposed a sanction by reference to a prefixed schedule of program violations. The COSA explained:
The reader need not take our word for the fact that Mr. Carnes’s hearing wasn’t adversarial—the Drug Court judge said as much himself: “[w]e’re here for a imposition of a sanction with regard to a failure to appear for a urinalysis in Drug Court, and there was a request for [a] hearing from the defense. … This is just as informal as sanctions get.”
The Drug Court also failed to consider the recommendation by the other members of the Drug Court team, who did not think that Mr. Carnes should be sanctioned pursuant to the sanctions menu under the circumstances. Mr. Carnes was due an adversarial hearing, and the Drug Court, by its own reckoning, denied him that opportunity. It may or may not prove availing, but he was entitled to challenge the State’s allegations before being incarcerated.
Isabelle’s representation of her client in Drug Court and in the appellate courts illustrates a core value of excellence at RaquinMercer. Contact RaquinMercer to consult with Isabelle about your trial or appeal.