May 31, 2016 Articles

Substance Abuse: A Perspective for Use in Plea Bargaining

Attorneys who are educated about substance abuse can offer viable alternatives to conviction for defendants accused of alcohol-related crimes.

By Ralph Guderian

The defendant is found by the police at 1:00 a.m., sitting on the back stairs of his neighbor’s house holding a small vase. He had entered, through an open window, the wrong house—frightening the neighbor, who screamed and then called 911. The defendant was charged with residential burglary, a felony. He was intoxicated and, in his words, “out of it.”

The neighbor stated that nothing was taken and had learned and understood that the defendant, who had a large family, had a drinking problem. This information was conveyed to the assistant state’s attorney, stressing the fact that the defendant was “out of it.” The state later reduced the charge to a misdemeanor.

The prosecution, defense, and judges are confronted daily with defendants who have been charged with offenses resulting from or involving alcohol, other drugs, or other similar substances. Drug use, abuse, or addiction/dependence is involved.

Generally, depending on the jurisdiction, if the defendant’s intoxicated or drugged condition was voluntarily produced, it cannot be raised as an affirmative defense during trial to avoid criminal responsibility for his or her conduct. However, during plea bargaining, sentencing, and the like, the defendant’s conduct can be considered as being the result of such use, abuse, or dependence. And reports of experts emerge, as well as treatment considerations.

There is a multitude of biological, psychological, and social factors involved in substance abuse. A leading work in this field, which is relied on in this article, is Loosening the Grip by Jean Kinney, M.S.W. (McGraw-Hill, 9th ed. 2009.)

Understanding substance abuse even a little, or at least thinking more about it, and not just leaving it to the experts, can help us function more effectively. And understanding the cause of a defendant’s conduct can lead to helping him or her to improve, rather than just exist, as the result of admitted or sentenced guilt.

Premium Content For:
  • Litigation Section
Join - Now