Most criminal defendants in Florida who are accused of a crime have a right to bail or pre-trial release as matter of law under Florida General Statute 893. Those accused of crimes that do not have a right to bail or pre-trial release include those individuals facing crimes punishable by death or life imprisonment or those defendants that the state seeks to file a motion for pretrial detention. Overall, the vast majority of criminal defendants are released on bail or pre-trial release after being arrested. The conditions of the pretrial release or bail can differ greatly from accused to accused. The First Appearance Judge is the one who sets the conditions of bail or pretrial release for those facing criminal charges in Florida.
The primary purpose of bail or pre-trial release is to ensure that the accused will appear in all of their court proceedings. The secondary purpose is to protect the community from further harms and or crimes by the defendant while he or she is out on bail or pretrial release. The court will look at several factors when determining whether to release a defendant on bail. In determining what the bail and/or conditions of release may be, the court will consider the following:
1. The nature and circumstances of the offense charged. This means the court will look at the nature and body of the crime and weigh any mitigating or aggravating factors. This area can be viewed as to whether or not the crime was committed in a heinous or non-heinous way. Was the crime motivated by greed or by necessity?
2. The weight of evidence against the accused. This will be a factor as to what conditions the court will impose on a defendant during his or her bail hearing. Factors that the court will look into when judging the weight of the evidence against the accused are whether: the accused confessed to the crime, the freshness or staleness of the arrest, the presences of physical evidence like DNA or fingerprints, the value or motive of a testifying witness or victim and the statements or confession of co-conspirators.
3. The defendant’s family ties to the community. The judge will consider how long the defendant has resided in the community. The length of time the defendant has actually lived in his or her current residency or place of abode. The employment history and job skills of the accused and whether or not the defendant has a job to return back to if released. The defendant’s financial resources and their ability to support themselves, is also a determination that the judge can make when determining the conditions of bail. The mental condition of the accused is also considered by the judge, including the defendant’s history of any mental illness, drug and or alcohol abuse or suicide in a bail determination.
4. The defendant’s past and present conduct. This is a factor taken into consideration by the court as it relates to the defendant’s prior criminal record and court appearances and is an area of concern for a judge in setting bail. If it is the defendant’s first offense, then this factor is given weight by the court, as is a defendant who has many prior arrest or failures to appear for scheduled court appearances.
5. The nature and probability of danger which the accused poses to the community upon his or her release is a consideration of the judge. If the crime alleges to have a victim, the relationship between the accused and the victim is a consideration for the judge. The age, vulnerability, mental or physical handicaps of the alleged victim are also considerations of a judge in victim crimes. The nature of the alleged crime and whether the defendant possesses traits to commit the crime upon his or her release falls within the probability of danger test.
6. Legitimacy of funds: Whether or not the funds, collateral or bond premium are being paid by funds linked to criminal activity or illegal funding. This is what is termed a Nebbia hearing. The Judge will determine whether the proffered funds, real property, property, or any proposed collateral or bond premium may be linked to or derived from the crime alleged to have been committed or from any other criminal or illicit activities. The burden rests on the defendant or family member posting the bail funds to prove to the court that the bond or collateral are derived from a legal and legitimate source.
7. Prior release: Whether the defendant is already on release pending resolution of another criminal proceeding or on probation, parole, or other release pending completion of a sentence. The judge will have the assistance of the prosecutor to provide him or her with the defendant’s prior criminal record at the First Appearance and this will show the current status of the accused. If the accused is out on bond, on probation or serving a sentence for another crime, the judge will heavily weigh those factors.
8. The street value of any drug or controlled substance This involves drugs which are allegedly connected to or involved in the criminal charge. The Florida legislature has made it policy that drug crimes have a serious effect on Florida’s social wellbeing and that those involved in the drug trade are at a higher risk of flight. Therefore, judge’s considering bail must consider this policy set by the legislatures. The Legislature has stated that the courts should balance the value of the street drugs to the value of the bail being set.
9. Street gang factor: During First Appearance, the judge may also take into consideration the fact that the defendant falls under Chapter 874 or is a member of a street gang, and the crime was committed in the furtherance of the enterprise. Another tenant under this area is that if the defendant is considered a sexual offender or sexual predator then the judge may consider this factor before setting bail.
10. The Catchall provision: Finally, the judge has a catchall provision that allows them to consider any relevant factors in determining a defendant’s pretrial release. While there are too many reasons to list here, they include the age of the defendant, the unsophisticated nature of the offense or of the defendant, the defendant’s standing in the community, and many other social factors which may be considered when determining bail or pretrial release.
If enhanced under Florida's "career criminal" statutes, the State has the right to ask the judge to increase the bond. This is because under these statutes, an accused person faces greater prison time or even mandatory prison time than a accused person without an enhancement. Enhancements, which are announced in court at the time or arraignment, include Habitual Offender (HO), Habitual Violent Offender (HVO), Violent Career Criminal (GORT), 3-Time Violent Felony Offender, and Prison Releasee Reoffender (PRRP).
The request to increase the bond for an enhanced defendant is almost always made by the prosecutor at arraignment. The prosecutor argues that with the enhancement (which was not announced at the initial bond hearing) changes the terms of the bond, since the defendant now faces more prison time than originally presumed. The State argues that this change in circumstances makes them a greater flight risk. Some judges will grant these motions and turn $5,000 bonds into $50,000 bonds. Other judges will not grant these motions, but will ask the defense attorney to contact the bondsman. If the bondsman agrees to stay on the bond, the judge will not grant the motion to increase.
Motions to reduce bond are often filed in trafficking cases as well. This is because trafficking cases have mandatory minimum sentences, which may provoke flight in an accused person scared of going to prison.
Trafficking offenses, such as trafficking in oxycodone (OxyContin), trafficking in alprazolam (Xanax), trafficking in heroin, trafficking in methamphetamine, and trafficking in cocaine all have high bonds with requirements that the person paying the bond premium present proof to the court that the money is coming from a "clean" source. In other words, this person must present an affidavit showing that this money was not earned through drug trafficking.
Reducing a bond in a trafficking case is easier when it is the defendant's first time in trouble. Showing that the accused has ties to the community, is presently working or in school, and has a strong family support system may give the court the persuasion it needs to reduce the bond. The fact that the defendant has enrolled into a drug rehabilitation facility may sometimes be taken into consideration by the court in determining a bond reduction.
Certain types of offenses and offenders may qualify for programs that result in the dismissal of the case against the defendant upon completion of specified conditions. These programs go by several different names, but they all remove the defendant from the ordinary channels of prosecution so that the defendant may complete certain conditions. Once the defendant meets the conditions, either the prosecutor or the court will dismiss the charges. In many cases the decision to divert a defendant’s case is made soon after the arrest and if the defendant agrees to the diversion program they may be “ROR’d” (released on own recognizance) and not required to post a monetary bond.
These programs are typically used for drug or domestic offenses, although we have been successful getting them for other offenses such as first time petit theft and prostitution cases as well. They are generally reserved for first-time offenders. The conditions imposed typically include some form of counseling and/or probation, and require the defendant to demonstrate good conduct throughout the program. Drug Court in Florida is an example one of the more prominent diversion programs.
There are two types of these kinds of programs: those that require the defendant to first plead guilty to the charge and those that do not. The former type is usually known as deferred adjudication, while the latter category is generally known as pretrial diversion. In my next article, I will give a more in depth overview of the difference between these programs.
When a person is court ordered to treatment via the Florida Marchman Act, the treatment is either paid for privately or through personal health insurance plans. If the Respondent or their family cannot afford to pay for private treatment, options are limited to state or county funded programs. There are definitely advantages to private treatment if one can afford it. The government funded beds are often limited in availability which may result in delays of the Marchman Act process. ASI will make recommendations for treatment based on both clinical and financial factors. We have a network of treatment facilities who have agreed to reduce rates for our clients as well as making payment plans to accommodate them.
Substance abuse treatment is either paid for privately (cash) or through personal health insurance plans. If neither the Respondent nor the Petitioner has the ability to pay for treatment, the only treatment alternative is typically the use of a county or government funded indigent program.
The Client must recognize that the use of any treatment program that is not paid for privately or through insurance may result in a delay of the Marchman Act process. County or government funded treatment programs typically have limited bed availability and treatment capacity, which may result in the Respondent being placed on a waiting list for a bed for detox or residential treatment.
ASI will enforce compliance by the Respondent of the rules and regulations of the government run program; including sobriety, while waiting for an available bed. However, the client must recognize that any delay in providing immediate treatment influences the overall chance for immediate success.
Should the Client have the ability to pay for treatment privately (cash) or utilize insurance, ASI will present this alternative treatment option to the family and the court as an alternative to the potential delays of an indigent-based state or county-run treatment program. ASI works with a large network of private treatment providers, some of whom have agreed to grant discounted rates to our clients or in the alternative, create affordable payment plans to accomodate them.
Each addict will be evaluated by ASI on an individual basis to determine what is the most appropriate and affordable modality of treatment. Not every treatment center will be right for every client. Recent studies show that over 80% of drug addicts suffer from other mental disorders, known as “Co-occurring Disorders” in the field (formerly called “dual-diagnosis”). If these other disorders are not addressed and properly treated, there will be little chance of successful long term recovery of the Addiction. Some of ASI's network treatment facilities specialize in the treatment of co-occurring disorders in conjunction with treatment of the Addiction. Our thorough assessments ensure that every ASI client is placed in a facility that will address the individual needs of that client.
ASI is specially licensed by DCF in Case Management and we place very strong emphasis on this component of treatment. Case Management entails monitoring all phases of treatment and maintaining the “Continuum of Care”. For example, we take all available measures to ensure that a client who completes residential treatment is immediately placed into an intensive outpatient program or a sober living facility when appropriate.
We are here to serve and always available to answer any of your questions about the Florida Marchman Act or substance abuse treatment options.
People who have completed drug and/or alcohol treatment may be concerned about whether their past problems with substance abuse will forever haunt them. However, there are a number of federal and state laws that can help ensure that you are treated fairly and not denied certain services because of your history with substance abuse or treatment for substance abuse.
Federal laws such as the Americans with Disabilities Act and the Rehabilitation Act of 1972 prevent employers in the public and private sectors from discrimination on the basis of past substance abuse treatment, as do some state anti-discrimination laws.
Plus, if you need substance abuse treatment that requires you to take a leave of absence from work, you may be able to do so pursuant to the Family and Medical Leave Act (“FMLA”), which permits up to 12 weeks of unpaid leave for medical purposes. So long as your employer is subject to the FMLA, and you are otherwise eligible to take FMLA leave, your employer cannot discriminate against you for requesting medical leave in order to undergo substance abuse treatment. Your employer also has a duty to accommodate any ongoing treatment that you might need that requires you to be absent from work or alter your work schedule, if it would not cause undue harm to do so.
Furthermore, any information about the fact that you have undergone substance abuse treatment is completely confidential. If your employer needs information about your treatment for the purposes of FMLA or medical insurance, your employer cannot disclose any of this information without your consent. Also, if employment-related drug testing reveals legally prescribed medications in your system, such as methadone, your employer cannot disclose this information, or punish you for it.
Likewise, if you are interviewing for a job, your prospective employer cannot even ask you about any substance abuse treatment that you might have undergone in the past. Employers are prohibited from discriminating against job applicants who have a history of substance abuse or treatment for substance abuse. Similarly, government job placement or training centers, such as unemployment offices, cannot discriminate against you due to your history of substance abuse or treatment.
You are also entitled to fair treatment in terms of housing under the Fair Housing Act, a federal anti-discrimination law. A landlord, seller, realtor, or public housing agency cannot prevent you from renting or purchasing a home because you have a history of substance abuse or treatment. The only exception is that you may not be permitted to live in public housing if you have certain drug-related criminal convictions in your past.
Other government and public agencies are subject to anti-discrimination laws, as well. For instance, you cannot be denied public assistance, such as Medicaid or food stamps, because you have a history of substance abuse or treatment. Public entities such as churches, hospitals, and schools also are prohibited from discriminating against you or denying you services due to your history of substance abuse or treatment.
While many do not see substance abuse as a disability or a serious medical condition, it is classified as a medical disability by the AMA. Therefore, employers should be aware that substance addictions may be covered under the FMLA or the ADA if an employee receives inpatient care or continuing treatment for the problem, or if their addiction substantially affects a major life activity.
In order for the FMLA to apply, an employee must show that at the time of the disciplinary incident, he/she suffered from a “serious health condition” which is an “illness, injury, impairment, or physical or mental condition that involves (A) inpatient care at a hospital, hospice or residential medical care facility; or (B) continuing treatment by a healthcare provider.” The employee must show they were receiving continuing treatment by a healthcare provider, or was receiving care at a medical facility.
Under the ADA, alcoholism can be a disability but only if a person can prove a disability that impacted any “major life activities.” These activities may include sleeping, walking, or eating. Employers should be mindful that alcoholism and other substance abuse problems may be considered disabilities under the ADA or a serious health condition under the FMLA requiring the employer to follow the guidelines of each statute.
LEAVE REQUIRED BY THE AMERICANS WITH DISABILITIES ACT ( THE “ADA”)
There will be occasions when an employee will be entitled to leave under the ADA. When Congress enacted the ADA in 1990 it determined that “...the nation’s proper goals regarding individuals with disabilities are to assure equal opportunity, full participation, independent living, and economic self sufficiency to such individuals.”[i]
The Equal Employment Opportunity Commission regulations define a “disability” as “... a physical or mental impairment that substantially limits one or more major life activities; ...a record of such an impairment...or being regarded as having such an impairment.” A “physical or mental impairment” is a condition that affects any of the major body systems, “...a mental or physical disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” A “major life activity...means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”
In determining whether an individual is substantially limited in a major life activity the regulations take into consideration the severity of the impairment, its expected duration, and its long term impact. A person is substantially limited in the major life activity of working if he or she is restricted from performing a broad range of jobs. The inability to perform one particular job does not constitute a significant limitation in the major life activity of working.
Alcoholism is a protected disability under the ADA. The ADA specifically allows employers to prohibit the use of alcohol and illegal drugs in the workplace and to require that employees not be under the influence of alcohol while at work. An employer may also hold an employee who is alcoholic or who engages in the illegal use of drugs to the same standards of conduct and performance as other employees even if the employee’s deficiencies are related to alcoholism or illegal drug use. However an employee must be allowed leave under the ADA and the FMLA for treatment of alcoholism.