Removal from the Drug Recovery Court

General Guidelines

The purpose of these guidelines is to provide a sound and consistent foundation for the operation of the Hamilton County Drug Recovery Court.  Importantly, however, these guidelines are not rules of procedure and have no effect of law.  

They shall not provide a basis of appeal by any Drug Recovery Court participant, and the lack of adherence to any guideline herein is not the basis for withholding any sanction or readmitting a participant who has been removed from the Drug Recovery Court program for any cause.

Standards Supporting Removal

The purpose of Drug Recovery Court is to effect life-long changes, not simply mark time to keep a person out of prison on the instant charge.  The Drug Recovery Court program includes a focus on prompt and systematic reporting to the drug court treatment team of the participant’s behavior, compliance with, and progress in treatment; the participant’s achievements; the participant’s compliance with the Drug Court Recovery program requirements; and any of the participant’s behavior that is inconsistent with a recovery lifestyle.  

To that end, during each phase of the program, a participant must demonstrate compliance with the Rules of the Drug Recovery Court and show progress. While sanctions and rewards should be consistent, they are highly individualized.       

A participant’s removal from the Drug Recovery Court program is not a punishment.  Rather, removal is the result of a decision that this particular program is no longer effective for this individual or that keeping the individual in the program is detrimental to the participant or to the program itself.  Accordingly, a participant may be removed from the Drug Recovery Court upon a finding that:

  1. The participant has consistently failed to comply with the rules, regulations, terms, and conditions (collectively, “Rules”) of the Drug Recovery Court, as those Rules are set forth in the Participant Contract, the Participant Handbook and other orders of the Drug Recovery Court; and other lesser sanctions, or orders of the Drug Recovery Court, have been insufficient to gain compliance with the Rules;

  2. The particular treatment program offered by the Drug Recovery Court is no longer effective for the individual participant; or      

  3. The participant’s continuance in the Drug Recovery Court program is detrimental either to the participant or to the program itself. 

Any such findings shall be made by the Court upon a preponderance of the evidence.

Right to a Removal Hearing

A Drug Recovery Court participant has the right to request a hearing to challenge any factual allegations supporting removal from the program.  

With the agreement of the Drug Recovery Court, a participant may also elect to waive his or her right to have a removal hearing and to be removed from the Drug Recovery Court; provided that, any such waiver is made knowingly and voluntarily after consultation with the defense counsel member of the Drug Recovery Court team or with other privately retained legal counsel.

Procedures Governing Removal Hearings

At any evidentiary hearing, and absent the participant’s concession or admission of the factual ground(s) that are alleged to support removal, the District Attorney will present any evidence or witnesses to prove the facts alleged to support removal in the Violation Report.  The Court may receive evidence as it would in any proceeding conducted pursuant to Tenn. Code Ann. § 40-35-311.   

If, after an evidentiary hearing, the Court finds that a preponderance of the evidence supports the grounds for removal, the parties, including the participant, will be given the opportunity to be heard as to whether removal is appropriate.      

During any hearing convened to consider the removal of a participant from the Drug Recovery Court, the participant is entitled to the following rights:

  • the right to be represented by legal counsel during such hearing;  
  • the right to speak and be heard at the hearing, and, conversely, the right to remain silent;  
  • the right to be personally present at the hearing;    
  • the right to present evidence and to compel the attendance of witnesses to appear; and   
  • the right to confront any witnesses called to testify and to cross-examine those witnesses.      

In typical proceedings, the participant will be represented by the defense counsel member of the Drug Recovery Court team.  However, the participant has the right to retain private counsel to represent his or her interests during the removal hearing.

The participant may assert his or her privilege against self-incrimination and may refuse to speak, to offer testimony, or to respond to questions.  However, any such refusal may carry the consequences that would be present for in any proceeding under Tenn. Code Ann. § 40-35-311.

Proceedings After Removal

If the former participant was admitted to the Drug Recovery Court on a furlough following a trial, guilty plea, or probation revocation where a sentence has been imposed, the following procedures shall apply upon the participant’s removal:

  • The Second Division shall rescind the furlough and immediately transfer the case to another Division of the Hamilton County Criminal Court for further proceedings, with preference given to the originating Division if possible.

  • In that other Division, the matter shall be set for arraignment and entry of counsel, whether retained or appointed.   

  • The former participant shall have the burden to show cause why he or she should not serve his or her sentences as previously ordered by virtue of the plea agreement or probation revocation.

Absconsion from the Program

Participation in the Drug Recovery Court program is voluntary.  As such, a participant who, without apparent cause, absconds during participation in the Drug Recovery Court program shall be deemed to have personally withdrawn from the program.  A participant’s absconsion includes a participant’s failure to report as instructed or a participant’s failure to maintain contact with Drug Recovery Court staff.       

Upon notice that a participant has absconded from the program, the Court may remove the participant from the program accordingly without further provision of written notice or a hearing.  The Court shall also rescind the furlough effective immediately and issue a capias for the participant’s arrest.  Upon execution of the furlough capias, the former participant shall initially be arraigned in the Second Division of the Criminal Court.        

No person has a right to be admitted into the Drug Recovery Court program.  As such, the Second Division is not required to afford an absconding participant a hearing to determine whether he or she should be readmitted into the Drug Recovery Court program.        

However, if a readmission hearing is held, the former participant has the right to be represented by counsel, to be heard, and to present evidence.  The former participant shall bear the burden of showing, by a preponderance of the evidence, that the absconsion either was not voluntary or was with cause sufficient to justify the failure to report as ordered.       

The Drug Recovery Court may order reinstatement of the participant to the program either upon a finding that no violation occurred or that, despite the absconsion, reinstatement of the participant would be in the interests of justice.

If the Second Division declines to hold a readmission hearing on the basis of the participant’s voluntary withdrawal, or if the Drug Recovery Court denies readmission following a readmission hearing, all subsequent proceedings shall be conducted as though the former participant had been removed from the Drug Recovery Court program as otherwise provided herein.

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