If you are charged with a crime and have substance use issues, you can benefit from receiving services from a criminal defense attorney and a therapist or psychologist. A medical doctor such as a primary care physician or psychiatrist may also be involved in your recovery and legal defense. In most instances, it is best if the attorney and the mental health professional work together toward a common goal. This can result in a reduced jail sentence, less restrictive probation, the state dropping the case, or acquittal.
To get a better legal result, you may need to undergo rehabilitative treatment and stay on psychiatric medications. You may also be required to regularly attend a self-help group such as Alcoholics Anonymous and keep your appointments with your therapist and/or social worker.
Step 1: Sign the HIPAA privacy authorization form so your records can be shared with your attorney
Obtain the privacy authorization form for your therapist as well as your psychiatrist and primary care physician. Ask that your mental health records for the relevant period be released to your attorney. Also state that any relevant medical records be released to your attorney. An example of such a record would be a prescription for a medication to treat an opioid use disorder. With regard to discussion topics, specify which topics are OK and which topics are off-limits on the release form. You do not need to sign a similar form for information shared with your attorney.
Step 2: Tell your attorney and therapist that you want them to talk to one another
Provide your attorney and therapist with contact information for one another. Tell them that you want them to communicate about your criminal case. The best way to do this is to write a clear email to both parties. Then follow up in person or over the phone with both parties. Ask them if they have talked to one another and what they have discussed.
Many attorneys are unaware of the consequences of information about a client’s mental health and medical issues being disclosed to the court or being entered into the public record. Your psychiatrist, doctor, therapist, and social worker (if you have one) should tell your attorney which information is sensitive.
If you are not staying on track toward recovery, ask your psychiatrist, doctor, and therapist to notify your attorney of any problematic decisions you have made, such as relapse and the resulting medical consequences of that. This will save you a trip or phone call to your attorney. If your attorney is aware of your actions almost immediately after you take them, he or she can begin taking steps to help you. For example, if you break your curfew, your attorney can talk to you to determine whether you had a reason to do so. He or she will also assess how a judge will view your actions. This will help your attorney decide whether you need to take additional remedial measures in order to avoid being taken into custody and revoking your bond.
Step 3: Determine the best resolution to your criminal case with your attorney
Ideally, your criminal case will be resolved sooner than you will complete therapy. Learn all of the options to resolve your case from your attorney. If you do not have an extensive criminal record, you may be eligible to have your case dropped through a deferred prosecution, which is also called a deferred disposition or a diversion program. Your circuit may have specialty courts like drug court, veterans’ court, and mental health court. These courts sometimes allow you to resolve a case without taking a plea offer or having a trial. Such courts typically require that you attend the specialty court as often as it is held, remain sober and clean, stay on your psych medications, and not incur a new case.
Drug court is usually specifically directed toward people who have substance use disorders and whose alleged offenses are drug-related. Veterans’ court is a rehabilitative court for veterans, many of whom have been charged with drug-related offenses. Mental health court is a court for people with mental health issues, some of whom have been charged with drug-related offenses.
All of the specialty courts will require that you share information about your recovery with the court, treatment centers, and possibly county or state probation. The downside of resolving a case without a trial or conviction is your attorney will have to share information about your substance abuse issues with parties that are not directly involved in your case. Often, your attorney must present your progress at a roundtable meeting of parties who come to court before it formally convenes.
Step 4: Make sure that your attorney keeps private documents out of the public record
Your attorney can black out portions of your health care records. He or she can also call your doctors to testify. Both options are preferable to having extensive health care records with all of your medical and mental health information entered into the public record. The difference between having a document provided to the court versus having it made part of the public record is that usually only a judge or jury can see documents provided to the court. A document that is made part of the public record may be scanned and made accessible, via the Internet, for the world to see.
Only a judge or jury can see documents provided to the court. A document that is part of the public record may be scanned and made accessible for the world to see.
As an example of what type of information might be sensitive, it might help a judge know you have Tourette’s syndrome if you have spoken out of turn in court. It would not benefit you to have this information made part of the public record so that a medical insurance company could see it.
A judge has the power to compel records that he or she sees relevant through a court order. Typically, these records may only be produced directly to the court. The judge will decide if further disclosure is necessary, and to what extent, for the administration of justice. If you are concerned about a judge compelling your records, consult with your attorney.
Step 5: Work toward getting your criminal case resolved the way you want
When an attorney and therapist communicate, they can craft a resolution that is unmanageable for their client. For example, the parties may agree that you should attend an inpatient drug rehabilitation program that lasts six months. If you think this would cause you to lose your job, you need to be insistent. Work with both parties to learn all of your options.
Your best course of action depends on many factors. These include your charges, finances, health insurance, medical condition, criminal record, personality, commitments such as work and family, and dedication to staying clean and sober. Relapse is usually part of recovery. Learn the consequences of one or more relapses from your attorney and therapist. Make sure that you will have a viable second chance or back-up option to get back on track.
Jessica Zimmer is a California and Florida-licensed attorney. She has represented juveniles in juvenile delinquency court, adults in criminal court, and individuals accused of offenses involving substance abuse and violation of restraining orders in civil court. She has also worked in programs administration for the Florida Department of Juvenile Justice and in dependency case management for Child Welfare Services of the Florida Department of Children and Families. She is a certified Guardian ad Litem in Florida. She currently works as a criminal defense and research attorney in California.