News + Insights from the Legal Team at Zalkind Duncan & Bernstein

SJC Opens Up Pretrial Diversion to Veterans, Even for Drunk Driving Cases

For over 40 years, Massachusetts has had an avenue of pretrial diversion in criminal cases, which allows young individuals accused of less-serious crimes to avoid a criminal record. Specifically, defendants under age 22 with no prior convictions who are charged in state District Court (or the Boston Municipal Court) can seek a diversion under Chapter 276A of the General Laws. (Sex offenses and certain other crimes are not eligible for pretrial diversion.) If the court agrees, the defendant’s arraignment can be postponed while the defendant participates in a “program” with an aim toward rehabilitation and preventing future offenses. A “program” can include any of a number of different things, including medical, psychological, or substance abuse treatment; education, training, or counseling; community service; or “other rehabilitative services.” After the defendant completes the program, the court may dismiss the charge without it ever showing up on his or her criminal record.

In 2012, the Massachusetts Legislature enacted the VALOR Act, which among other measures intended to improve services available to veterans, and made pretrial diversion available to veterans and members of the armed services, of whatever age. The Legislature acted in response to the fact that some veterans return from service with untreated or insufficiently treated psychological issues. As a result of this unfortunate reality, “self-medicating” through substance abuse is a known problem in particular among veterans returning to civilian life.

That was the situation of Joel Morgan, a veteran whose case the Supreme Judicial Court recently decided. Morgan had a difficult time adjusting to civilian life after returning from Iraq and Afghanistan, and he experienced delays in obtaining treatment through the VA. Among the other traumas of war, he also learned that his twin brother, also a veteran, had taken his own life. Morgan began abusing alcohol and heroin, and was eventually pulled over for operating under the influence of alcohol (OUI) for the second time. (The first time was almost ten years earlier – unfortunately for him because if his arrest had been only a few months later, he would have been eligible for lenient treatment as a “second-chance first-time offender.”) Unlike most other crimes, the statute governing OUI provides that an OUI charge cannot be continued without a finding except through the first-time offender program under Section 24D. Thus, as a second-time OUI offender, Morgan would normally have faced criminal penalties, perhaps even jail time, rather than treatment.

But once she learned he was a veteran, Morgan’s attorney sought a pretrial diversion. The prosecution argued that OUI is a special case, not subject to pretrial diversion and dismissal. The Supreme Judicial Court rejected that view. It acknowledged the collision between the VALOR Act’s policy of promoting treatment rather than criminal sanctions for veterans, on the one hand, and the OUI law’s strict structure of punishment for repeat offenders, on the other. Chief Justice Gants, writing for a unanimous Court, held that (unless the Legislature subsequently says otherwise) it makes more sense to allow judges to exercise leniency toward veterans with substance problems rather than mandate the strict approach taken toward other OUI offenders. Thus, unlike other non-first-time offenders, veterans charged with an OUI are eligible for diversion and either dismissal or a continuance without a finding, within the discretion of the judge. This result promotes a compassionate approach towards those who serve in the armed forces and subsequently run into difficulty. Although the Morgan case did not specifically address whether defendants under 22 may also be eligible for pretrial diversion in OUI cases, it may have implications for those defendants as well. It would serve the purposes of the pretrial diversion statute to extend Morgan’s holding to all those eligible for diversion, giving them another chance at treatment rather than punishment to prevent future problems.

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