Circuit Court for Montgomery County               REPORTED
Criminal Cases Nos. 124172 (Carnes)
and 121215 (Brookman)                 IN THE COURT OF SPECIAL APPEALS

                                                  OF MARYLAND

                                                  Nos. 182 and 183

                                               September Term, 2016
                                            _________________________


                                             CRYSTAL BROOKMAN

                                                         v.

                                             STATE OF MARYLAND

                                            _________________________


                                            MARVIN RANDY CARNES

                                                         v.

                                             STATE OF MARYLAND

                                            _________________________

                                          Nazarian,
                                          Arthur,
                                          Thieme, Raymond G., Jr.
                                               (Senior Judge, Specially Assigned),

                                                       JJ.
                                            _________________________

                                               Opinion by Nazarian, J.
                                            _________________________

                                          Filed: April 27, 2017
       These consolidated appeals arise from due process challenges by two participants

in the Montgomery County Adult Drug Court program (the “Drug Court”). The first,

Crystal Brookman, was charged and sentenced to probation. She violated her probation,

and was sentenced for that violation to supervised probation with the special condition that

she enter and complete Drug Court. While participating in Drug Court, Ms. Brookman

twice tested below the accepted level of creatinine, and the second result was treated as a

positive test result pursuant to the Drug Court’s Participant Handbook.

       The second appellant, Marvin Carnes, pled guilty to one count of theft scheme over

$1,000 and one count of identity theft. The circuit court imposed concurrent sentences of

incarceration, suspending all but time served, with a three-year period of supervised

probation. As a special condition of probation, the circuit court required Mr. Carnes to

complete Drug Court. During Drug Court, Mr. Carnes missed a urinalysis, which was

treated as a positive test result pursuant to the Adult Drug Court Policies and Procedures

Manual (the “Drug Court Manual”).

       After separate appearances, the Drug Court imposed sanctions that included

overnight incarceration on both. Both appeal, and the State contends that the sanctions

aren’t appealable. We hold that they are, and we vacate the sanctions orders and remand

for further proceedings consistent with this opinion.

                                  I. BACKGROUND

       A.     The Montgomery County Adult Drug Court Program

       The Drug Court is “a post-conviction program for non-violent addicted offenders.”

Drug Court participants “are placed on special conditions of probation that appropriately
support the goals of recovery and rehabilitation for program participants,” who are

“[p]laced under the supervision of the Judge assigned to the Drug Court Program.” The

Drug Court program, which lasts a minimum of twenty months, is broken up into four

numbered phases, each with progressively less stringent conditions.              Drug Court

participants are required to “participate in mandatory, random, urinalysis . . . [and] are

subject to the possibility of an additional random urinalysis screening through a ‘call-in’

program.”

       Participants in the Drug Court consent to participate after being referred to the

program and entering into a Drug Court Agreement. The Agreement specifies, among

other things, that participants “understand that [they] can be asked to report for drug and

alcohol testing at any time while [they are] Drug Court participant[s] and that [their] failure

to report will result in a sanction by the [Drug] Court,” that they “will report for drug and

alcohol testing as directed,” and “that any attempt to falsify a drug and alcohol test,

including dilution, is grounds for termination from Drug Court.” Drug Court participants

must report for random urinalysis as specified in the Drug Court Manual, and “[a]ny failure

to appear for random testing will be treated as a positive test result for drugs.”

       The Drug Court Manual considers the program’s proceedings as non-adversarial

because they are driven by “a common commitment to the best interests of the participant

toward ending his or her addictive behaviors.” The Drug Court Agreement, however,

contains an exception: “Drug Court imposes graduated sanctions for lack of compliance

with program requirements, including incarceration. [Participants] have the right to request



                                              2
and have a formal adversarial hearing before the imposition of a sanction of incarceration

or before being terminated from Drug Court.”

       Violations of the Agreement are punished with sanctions that escalate with each

subsequent violation. The Participant Handbook warns participants that they will be

subject to sanctions for failing to report and comply with the Drug Court guidelines and

specifies the “graduated sanctions,” or “Menu of Sanctions,” they face when they fail to

comply with the Drug Court’s program. These graduated sanctions are “vital to the support

and reinforcement of the adopted treatment interventions” and leverage “[t]he rapid

imposition of negative sanctions as incentives to improve compliance and to modify

negative behaviors.” (Emphasis omitted.) Participants must report in person to the next

available Drug Court docket after they violate any terms and conditions of enrollment

because “sanctions are most effective when applied immediately.”

       B.     Ms. Brookman

       On August 28, 2012, Ms. Brookman was charged with four counts of theft and

conspiracy to commit theft. She pled guilty to one count of theft over $1,000 on September

14, 2012. On October 22, 2012, the circuit court imposed a suspended sentence of

incarceration for twelve months, placed her on two years’ supervised probation with the

special condition that she abstain from alcohol and drug use and submit to random

urinalysis, and required her to pay restitution. On December 13, 2013, Ms. Brookman

admitted to violating her probation, and the circuit court sentenced her, among other things,

to three years’ supervised probation with the special condition that she “[e]nter into the



                                             3
Mont. Co. Adult Drug Court, comply with all conditions, and successfully complete and

graduate from the Mont. Co. Adult Drug Court.”

       As part of the Drug Court program, Ms. Brookman submitted to a urine test in July

2014 that yielded a low creatinine 1 result. On February 24, 2016, while in Phase 3 of the

Drug Court program, Ms. Brookman was notified that another urinalysis showed low

creatinine levels. The next day, Ms. Brookman filed a line demanding the presence of the

analyst and technician at a hearing and for discovery related to the test results.

       At the hearing held on February 26, 2016, two days after and “as a result of [the]

low creatinine test,” Ms. Brookman’s counsel requested a continuance so that she could

seek the input of a chemist “to see if [the report] is reliable” and talk to Ms. Brookman

about the lab results:



1
  Creatinine is a waste product found in the blood that comes from protein in the diet and
the normal breakdown of muscles; the kidneys remove it from the blood and it passes out
in urine. MedlinePlus, Creatinine, U.S. NAT’L LIBR. OF MED., https://perma.cc/24Z5-
EGZT (last updated January 4, 2017). A high creatinine level signifies a possible loss of
kidney function. In the context of the Drug Court program a low creatinine level,
“[d]efined as any creatinine level below 20,” doesn’t indicate anything about the presence
of drugs, but can signify an effort by the participant to overhydrate and dilute his or her
urine (and thus defeat the test). For that reason, a low creatinine test is considered a
violation based on the number of times it occurs, regardless of the participant’s phase.

       After the first low creatinine test, the participant receives a written warning; at the
time of each additional test, low creatinine is “[c]onsidered a positive urinalysis; [and the]
menu [of sanctions] will be followed based on phase and number of previous positives.”
The Drug Court Participant Handbook’s table of sanctions at Phase 3—Ms. Brookman’s
phase—specifies the sanctions for the first positive or missed urinalysis as “Jail, 30
[meetings in] 30 [days]–90 [meetings in] 90 [days], 2 weeks frequent [urinalysis], change
sober date, phase demotion, [and] weekly court for one month.” The Drug Court Manual
sanctions for Phase 2 and Phase 3 positive urinalysis tests, absent extenuating
circumstances, include overnight incarceration for the first violation.
                                              4
              [W]e believe that is a violation of Ms. Brookman’s due
              process. We will ask the opportunity to continue this matter
              for me to look further into this and speak to an expert. I have
              spoke to . . . our forensic expert, who was waiting for me to
              forward him the results of the Lab Corp in order to get in touch
              with . . . an expert or general toxicologist to figure out what is
              going on with these results.

                      Ms. Brookman tested at 18.9, that is very, very close to
              the 20 [minimum allowable result]. We want to look into
              whether or not there could possibly be a margin of error or
              something else within Ms. Brookman that results in this. I
              think looking at Ms. Brookman as a whole, how she’s doing in
              Drug Court, how she’s working with our business case
              manager. I don’t think there’s any belief that she is using. And
              to sanction her, to delay her graduation is not, we don’t believe
              is the appropriate punishment, the appropriate sanction without
              further review.

Counsel urged the Drug Court to not sanction Ms. Brookman that day because she wanted

an “opportunity to review this information further” and “figure it out.” The State, however,

requested that a sanction be imposed immediately:

               [T]he results are from LabCorp. I don’t think there’s any
              dispute that LabCorp is a certified lab. The results state very
              clearly that her creatinine was 18.9, which is below the
              established low level limit of 20. We would ask that the
              sanction be imposed. This is not a violation of probation.
              There has not been a petition filed to violate her probation.
              Therefore, the standard of having the chemist and all that does
              not apply in this circumstance today. I think that there, the
              point of the sanctions is to have an immediate response and we
              would ask that the sanction be imposed today based on the lab
              results. If they’re going to challenge that LabCorp is not
              reliable hearsay, then they’re going to challenge every single
              urine analysis throughout the county. So, I don’t think that that
              is what they’re intending to do in terms of the reliable hearsay
              argument.




                                              5
       After acknowledging its guidelines and policies, the Drug Court imposed immediate

sanctions, including overnight incarceration. Ms. Brookman filed a timely appeal and we

granted Ms. Brookman’s Application for Leave to Appeal, ordering her to “address

whether the sanctions imposed by the Montgomery County Drug Court, from which the

application for leave to appeal was filed, is an action subject to appellate review in the

Court of Special Appeals . . . [, and] then address the merits of the issue on appeal.”

       C.     Mr. Carnes

       Mr. Carnes was charged on December 30, 2013 with forty-six counts of theft,

identity fraud, credit card fraud, conspiracy to commit theft, and related offenses. He pled

guilty to one count of felony theft scheme involving property valued between $1,000 and

$10,000, and one count of identity fraud on April 15, 2014. On June 11, 2014, the circuit

court sentenced him to ten years’ incarceration on the felony theft scheme count and

eighteen months’ incarceration on the identity fraud count, commencing on October 30,

2013, with the balance suspended in favor of three years’ supervised probation with

conditions, including the condition that Mr. Carnes “enroll in, comply with all conditions

of, successfully complete, and graduate from the Montgomery County Adult Drug Court

Program.”

       Mr. Carnes worked as a truck driver. At 7:30 a.m. on February 17, 2016, when it

appears from the record that Mr. Carnes was in Phase Three of the Drug Court program,

he called the urinalysis line to check whether he needed to report for a drug test. At the

time of his call, the list of people to report for a urinalysis on that day had not yet been



                                              6
updated. So Mr. Carnes began work at 8 a.m., but at some point that day, his truck broke

down, and it took him four hours to travel from Cumberland back to Montgomery County.

       Mr. Carnes called the urinalysis line again around 1:30 a.m. on February 18, 2016

and learned that he had missed a urinalysis for the previous day. He reported immediately

to a testing facility, and the test was negative. Later that day, at 9 p.m., Mr. Carnes also

underwent full blood and urine tests, and those tests were negative for drugs as well.

       At the February 26, 2016 hearing “regard[ing] a failure to appear for a urinalysis,”

Mr. Carnes sought to present evidence that he did not actually miss the urinalysis

appointment.   When asked whether Mr. Carnes appeared on February 17 to give a

urinalysis, his counsel responded that she “d[id]n’t know what the State’s evidence [wa]s

going to be.” The Drug Court judge responded that “there’s no State’s evidence” and “no

evidentiary requirement.”

       Mr. Carnes argued that the sanctions menu was not exclusive and did not cover his

late urinalysis, which should not “require the same drastic sanction . . . as a missed

urinalysis” because he hadn’t skipped the drug test to hide that he was using drugs. Counsel

argued further that a strict application of the menu of sanctions without an opportunity for

the court to consider Mr. Carnes’s circumstances violated his due process rights. Counsel

pointed out that other members of the Drug Court team did not agree that Mr. Carnes should

be sanctioned. Instead, counsel asked the Drug Court to view the sanctions menu as

guidelines. Moreover, she argued that a demotion in the Drug Court program would disrupt

Mr. Carnes’s efforts to reunite his family (he lost his children in 2012). And finally, Mr.



                                             7
Carnes asked that his overnight incarceration occur on an evening other than the one of his

hearing.

       The State asked the Drug Court to treat all participants the same, according to the

menu, and not to consider sanctions on a case-by-case basis. In addition, the State

suggested that the whole situation could have been avoided if Mr. Carnes had called his

case manager, which he did not do.

       The Drug Court imposed the sanctions in the menu, disagreed with Mr. Carnes that

the menu of sanctions were guidelines, and denied his request to change the menu. The

court stressed the need for fairness among all program participants and for the integrity of

the program’s structure. The court told Mr. Carnes that he had called the urinalysis line

too early and should have called back later, and that his efforts to remedy the situation

occurred too late. The court did, however, grant Mr. Carnes’s request that his incarceration

occur on another night.

       Mr. Carnes filed a timely appeal, and we granted Mr. Carnes’s Application for

Leave to Appeal, with the same briefing direction that we gave to Ms. Brookman. We will

discuss additional facts below, as necessary.

                                     II. DISCUSSION

       Both appellants present essentially identical arguments on appeal. Each contends

that the sanctions imposed by the Drug Court should be subject to appellate review, and

that the Drug Court violated their rights to due process by imposing immediate sanctions

that included, among other things, incarceration, without allowing them an adversarial



                                                8
hearing. 2 We hold that Drug Court sanctions are appealable, and we vacate the sanctions

orders and remand to the Drug Court for an adversarial hearing that complies with

Maryland Rule 16-207(f). 3

         A.     The Sanctions Imposed By The Drug Court Are Subject To
                Appellate Review In This Court.

         Ms. Brookman and Mr. Carnes contend that “sanctions imposed by Drug Court at a

formal adversarial hearing are subject to appellate review over the final judgments of a

criminal court.” (citing Brown v. State, 409 Md. 1, 9 (2009)). They distinguish non-

adversarial sanctions, which “would ordinarily not constitute a final judgment,” from


2
    In their briefs, both phrased the Questions Presented as follows:

                       1.      Whether the sanctions imposed by the Drug
                Court on February 26, 2016 is an action subject to appellate
                review in the Court of Special Appeals, where the Drug Court
                is required to conduct a formal adversarial hearing pursuant to
                the Drug Court program protocols and Rule 16-206(e), prior to
                making a decision to immediately incarcerate the appellant?

                       2.     Whether the Drug Court violated appellant’s due
                process rights to a formal adversarial hearing prior to making
                a decision to impose an immediate sanction that included
                incarceration, where the Drug Court did not act in accordance
                with the protocols of the Drug Court program, where it failed
                to provide appellant a meaningful opportunity to be heard
                about the alleged program violation, and where the Drug Court
                imposed a period of incarceration by reference to a prefixed
                schedule of program violations?

(Footnote omitted.)
3
  Maryland Rule 16-206 was effective at the time of Ms. Brookman’s and Mr. Carnes’s
February 26, 2012 hearings, and was repealed by Rule 16-207, which became effective on
July 1, 2016. We discuss the due process requirements contained in the current Rule 16-
207(e) below.
                                               9
sanctions imposed after a “formal adversarial hearing,” which “may constitute a final

judgment for appeal purposes.” (Emphasis in original.) They contend that “the Drug Court

action at a formal adversarial hearing is a final judgment because no further action by the

Drug Court is reasonably expected related to the violation of that special condition of

probation.” The State counters that “the imposition of sanctions pursuant to [their]

participation in drug court . . . does not constitute a ‘final judgment,’” that they were “not

subject to sanctions involving a ‘loss of liberty’ in addition to the restrictions resulting from

[their] probationary status,” that the circuit court complied fully with Rule 16-206(e), and

there is no statutory right to appeal from Drug Court sanctions.

         The State is right, as a general matter, that “appellate jurisdiction is dependent upon

statutory grant of power.” Lohss v. State, 272 Md. 113, 116 (1974), superseded on other

grounds by State v. Rush, 174 Md. App. 259 (2008); see also Seward v. State, 446 Md.

171, 176 (2016) (citing Pack Shack, Inc. v. Howard Cty., 371 Md. 243, 247 (2002)) (“The

right to appeal is entirely statutory in Maryland.”). Maryland Code (1973, 2013 Repl.

Vol.), § 12-308 of the Courts and Judicial Proceedings Article (“CJ”), defines this Court’s

appellate jurisdiction, and “[e]xcept as provided in § 12-307 of this subtitle,[4] the Court of

Special Appeals has exclusive initial appellate jurisdiction over any reviewable judgment,

decree, order or other action of a circuit court, and an orphans’ court.”

         So, are these reviewable judgments? Normally, that depends on whether they

satisfy the “final judgment rule”:



4
    That section relates to appellate jurisdiction in the Court of Appeals.
                                               10
              Except as provided in § 12-302 of this subtitle, a party may
              appeal from a final judgment entered in a civil or criminal case
              by a circuit court. The right of appeal exists from a final
              judgment entered by a court in the exercise of original, special,
              limited, statutory jurisdiction, unless in a particular case the
              right of appeal is expressly denied by law. In a criminal case,
              the defendant may appeal even though imposition or execution
              of sentence has been suspended. In a civil case, a plaintiff who
              has accepted a remittitur may cross-appeal from the final
              judgment.

CJ § 12-301 (emphasis added). A “final judgment” is “a judgment, decree, sentence, order,

determination, decision, or other action by a court, including an orphans’ court, from which

an appeal, application for leave to appeal, or petition for certiorari may be taken.” CJ § 12-

101. The core defining principle is whether the judgment fully resolves the claims or issues

before the court:

              “[A] final judgment” is one that “either determine[s] and
              conclude[s] the rights of the parties involved or den[ies] a party
              the means to ‘prosecut[e] or defend[ ] his or her rights and
              interests in the subject matter of the proceeding.’” In re Billy
              W., 386 Md. 675, 688[ ](2005) (quoting Rohrbeck v. Rohrbeck,
              318 Md. 28, 41[ ](1989)) (some alterations in original).
              Important is whether “any further order is to be issued or
              whether any further action is to be taken in the case.” Id. at
              689[].

Douglas v. State, 423 Md. 156, 171 (2011) (alterations in original).

       Our courts have not had occasion to consider whether decisions of the Drug Courts

to impose sanctions qualify as final judgments. Courts in other jurisdictions have tended

to distinguish decisions arising from drug court programs from traditional court decisions,

even when, as here, the same court issues the decision. See Dunson v. Commonwealth, 57

S.W.3d 847, 850 (Ky. Ct. App. 2001) (“While this particular drug treatment program is


                                             11
known as the ‘Fayette County Drug Court’ and while it is operated through this state’s

Court of Justice, the ‘Drug Court’ is not a ‘court’ in the jurisprudence sense; it is a drug

treatment program administered by the court system. Accordingly, [the defendant]’s

termination from this particular drug treatment program was not subject to due process

protections any more than his participation in a private drug treatment program would have

been, or his participation in any other rehabilitation program such as anger management

counseling or a job training program.”); State v. Jakubowski, 822 A.2d 1193, 1194 (Me.

2003) (citation omitted) (“Drug court is not a separate court, but a program within the

Superior and District Courts in which heightened judicial attention is given to defendants

with substance abuse problems.”); State v. Perkins, 661 S.E.2d 366, 367–68 (S.C. 2008)

(stating that the court had no authority to “evaluate and assess the manner in which the

[drug court] administrators execute the rules and regulations of the [drug court]” and thus

it refrained from interjecting itself into “wholly internal and specific [matters] to each

[Drug Court] Program and to each participant”). But in DiMeglio v. State, 201 Md. App.

287, 289, 304 (2011), we recognized that the “DUI/drug courts” impose sanctions for

violations of the program rather than deciding a participant’s guilt or not on the underlying

charges. And although both appellants here were sanctioned, both continued in the

program itself, albeit under terms that reflected the violation. Thus, we agree with the State

that decisions to impose sanctions for violations of the terms of the Drug Court program

are not final judgments in the § 12-301 sense.

       Even so, subsection (g) of CJ § 12-302 covers the appealability of probation

revocation orders, and that seems a better fit:

                                             12
              (g) Probation revocation. – Section 12-301 of this subtitle does
              not permit an appeal from an order of a circuit court revoking
              probation. Review of an order of a circuit court revoking
              probation shall be sought by application for leave to appeal.

Defendants have a right to appeal a revocation of probation because probation may not be

revoked, in whole or in part, on the basis of an improper ground. See, e.g., Baldwin v.

State, 324 Md. 676, 684 (1991). Again, no Maryland case has applied these provisions or

principles to sanctions arising from a drug court. 5 In DiMeglio, though, we held that there

is “no substantive distinction between a sanction imposed for a violation of probation and

a sanction imposed in a DUI/Drug Court.” 201 Md. App. at 305. And in reaching this

conclusion, we accepted the reasoning of the Supreme Court of North Dakota in In the

Interest of O.F., 773 N.W.2d, 206, 208 (N.D. 2009), which “consider[ed] the purposes of

the drug court, and [found] that they were similar to those a district court would have over

an ordinary probationer.” Id. So where participation in Drug Court is a term of a

defendant’s probation and there exists an independent possibility of sanctions that deprive

the defendant of liberty or extend his or her participation in the program, the defendant

stands in a position akin to someone who has (allegedly) violated probation.


5
  No reported Maryland case directly addresses intermediate sanctions imposed by these
programs. In many cases in other jurisdictions, however, defendants have challenged their
termination from a drug court program. See Tornavacca v. State, 408 S.W.3d 727, 730–
31 (Ark. 2012) (holding that the defendant had a due process right to appeal an order
terminating him from drug treatment court); State v. Jakubowski, 822 A.2d 1193, 1194
(Me. 2003) (dismissing an appeal from orders terminating the defendant’s “participation
in the Adult Drug Treatment Court program (drug court)”); Hager v. State, 990 P.2d 894,
899 (Okla. Crim. App. 1999) (holding that the defendant had a due process right to appeal
an order terminating him from drug treatment court); State v. Perkins, 661 S.E.2d 366,
368–69 (S.C. 2008) (holding that judicial review of the drug court team to terminate the
defendant from the drug court program is not mandated by due process).
                                            13
       The ability of the Drug Court to sanction participants with incarceration tightens the

analogy and, ultimately, leads us to conclude that these orders should be appealable. In

Russell v. State, we held that orders modifying conditions of defendants’ probation are

final, appealable judgments because these orders were intended to resolve finally the

State’s motions to modify the conditions of defendants’ probation, and because there was

no indication that the terms of probation would be reconsidered at any future time. 221

Md. App. 518, 526, cert. granted, 443 Md. 234, appeal dismissed, 443 Md. 734 (2015).

The Drug Court sanctions imposed in Ms. Brookman’s and Mr. Carnes’s cases don’t

modify their individual conditions of probation—the sanctions are elements of the overall

program itself—but the sanctions the Drug Court imposed on them had the effect of

extending the time before they complete the program. And that is close enough.

       We’re bolstered further in this conclusion by the fact that the State’s position, were

we to adopt it, would leave Drug Court participants without any right to appeal from

incarceration imposed for minor violations without an adversarial hearing. Yes, Drug

Court participants voluntarily agree to join the Drug Court program. But in the course of

agreeing to participate, the appellants did not agree, and should not be deemed to have

agreed, to be incarcerated without any opportunity to challenge the bases on which the

court would send them to jail. What if, for example, Mr. Carnes had appeared in time for

his urinalysis, but the lab lost the records and reported him as having missed it? Or reported

a positive result instead of a negative one? Or if he wasn’t due to be tested that day, but

the State claimed erroneously that he was? Under the State’s theory, he would have neither

the right to a hearing nor the right to appeal the process, let alone the decision, that led to

                                              14
his incarceration. Participants’ consent to participate in Drug Court is not a blanket waiver

of their due process rights, nor a means to insulate the program altogether from

constitutional scrutiny. We hold, therefore, that participants who have been sanctioned in

a manner that deprives them of liberty or extends their participation in the program have a

right to appeal those sanctions in the same manner, and to the same extent, as violations of

probation.

       B.     The Drug Court Violated Ms. Brookman’s and Mr. Carnes’s Due
              Process Rights To An Adversarial Hearing Prior To Imposing
              Immediate Sanctions.

       The Drug Court program falls under “problem-solving court programs” as detailed

at all times relevant to this case in Maryland Rule 16-206, and now in Rule 16-207.

Although Drug Court participants are entitled to some of the rights enjoyed by criminal

defendants, they are not entitled to all of them. Rule 16-206(e) detailed the necessary

protocols for imposing immediate sanctions on Drug Court participants:

               (e) Immediate sanctions; loss of liberty or termination
              from program. In accordance with the protocols of the
              program, the court may, for good cause, impose an immediate
              sanction on a participant, except that if the participant is
              considered for the imposition of a sanction involving the loss
              of liberty or termination from the program, the participant shall
              be afforded notice, an opportunity to be heard, and the right to
              be represented by counsel before the court makes its
              decision.[6]


6
  The new Rule takes substantially similar form. Compare Md. Rule 16-207(f) (“If
permitted by the program and in accordance with the protocols of the program, the court,
for good cause, may impose an immediate sanction on a participant, except that if the
participant is considered for the imposition of a sanction involving the loss of liberty or
termination from the program, the participant shall be afforded notice, an opportunity to be
heard, and the right to be represented by an attorney before the court makes its decision.”).
                                             15
      Under section one of the Fourteenth Amendment of the United States Constitution,

criminal defendants are entitled to due process of the law. U.S. CONST. amend. XIV, § 1.

Again, Maryland courts have not addressed whether the Due Process Clause requires that

offenders in drug treatment programs have an opportunity to be heard prior to termination

of their participation in treatment programs. But courts in some other states have. See,

e.g., People v. Peterson, 502 N.E.2d 450, 453 (Ill. App. Ct. 1986); Deurloo v. State, 690

N.E.2d 1210, 1212–13 (Ind. Ct. App. 1998); State v. Grimme, 274 N.W.2d 331, 336–37

(Iowa 1979); State v. Lebbing, 385 A.2d 938, 941 (N.J. Super. Ct. Law Div. 1978); People

v. Woods, 748 N.Y.S.2d 222, 227 (Rochester, N.Y. City Ct. 2002); Hagar v. State, 990

P.2d 894, 898–99 (Okla. Crim. App. 1999). Generally, and much like the appealability

analysis above, these courts have analogized the termination of treatment programs to the

revocation of parole or probation, both of which invoke minimum due process

requirements. See generally Gagnon v. Scarpelli, 411 U.S. 778 (1973) (holding that

procedural due process safeguards apply to probation revocation proceedings); Morrissey

v. Brewer, 408 U.S. 471 (1972) (holding that procedural due process safeguards apply to

parole revocation proceedings).

      “Often, [Drug Court] sanction[s are] imposed automatically, without any

opportunity to challenge by the defend[ant].” Tamar M. Meekins, “Specialized Justice”:

The Over-Emergence of Specialty Courts and the Threat of a New Criminal Defense

Paradigm, 40 SUFFOLK U. L. REV. 1, 18 (2006); see also id. at 18–19 n.85, 31 (discussing

how “Washington, D.C.’s drug court does allow for limited challenge by a stand-in defense

counsel,” a system which “arose as a result of the drug court judges proceeding with

                                           16
sanctioning defendants for alleged violations without any counsel present,” and how

“[s]anctions are imposed for violation of conditions according to the guidelines of the

treatment court,” although “[i]ndividual judges sometimes depart from the guidelines for

sanctions”). The Montgomery County Drug Court, however, does not automatically

impose sanctions because the Drug Court Agreement signed by all participants explicitly

provides that they “have the right to request and have a formal adversarial hearing before

the imposition of a sanction of incarceration.”

       Intermediate sanctions serve an important function in a drug court program. See

Andrew Fulkerson, How Much Process is Due in the Drug Court?, 48 CRIM. LAW BULL.

653, 676 (2012) (stating that “[i]ntermediate sanctions for violation of drug court terms

and conditions are an integral part of the drug court program” in Idaho); Peggy Fulton Hora

& Theodore Stalcup, Drug Treatment Courts in the Twenty-first Century: The Evolution of

the Revolution in Problem-Solving Courts, 42 GA. L. REV. 717, 762 (2008) (“Brief periods

of incarceration for noncompliance with the terms of the treatment program are an integral

part of drug treatment courts.”). “[S]tudies show that the best predictor of whether there

will be behavior change in response to sanctions is the immediacy of those sanctions.”

Hora & Stalcup, supra, at 774 (citation omitted). These sanctions are seen as “providing

help,” “restructuring the defendant’s lifestyle,” “smart punishment,” “motivational jail,” or

a “response.” James L. Nolan, Redefining Criminal Courts: Problem-solving and the

Meaning of Justice, 40 AM. CRIM. L. REV. 1541, 1556–57 (2003) (citation omitted).

Moreover, some advocates suggest that the possibility of jail as a sanction has contributed

to the success of drug courts. See Caitlinrose Fisher, Note, Treating the Disease or

                                             17
Punishing the Criminal?: Effectively Using Drug Court Sanctions to Treat Substance Use

Disorder and Decrease Criminal Conduct, 99 MINN. L. REV. 747, 762 n.88 (2014).

       Over half of the violations listed in the menu of sanctions in the Drug Court

Participant Handbook include incarceration for a first or subsequent violation, and

incarceration is more prevalent for violations made in the later phases of the Drug Court

program. Despite the role of jail as a potential sanction in Drug Court, though, the goal of

the Drug Court program is to allow participants to “live a productive life without engaging

in criminal activities and using drugs or alcohol.” The Drug Court attempts to focus the

program on drug addiction therapy and treatment; recalcitrant participants are terminated

from the Drug Court program and returned to the traditional criminal justice system and its

forms of punishment.

       The other states that have confronted the extent of process due for intermediate

sanctions have reached varying conclusions. Some have held that due process rights are

implicated when the participants face termination from the program, while others have

analogized intermediate sanctions to violations of probation. Compare State v. Rogers,

170 P.3d 881, 886 (Idaho 2007) (“The principles articulated in this opinion apply only

when a participant in a diversionary program is facing termination from the program

because that is when the participant faces a loss of liberty. Intermediate sanctions imposed

in these programs do not implicate the same due process concerns, and continued use of

informal hearings and sanctions need not meet the procedural requirements articulated

here.”), with State v. Shambley, 795 N.W.2d 884, 894 (Neb. 2011) (holding that drug court

program participants are entitled to the same due process protections as persons facing

                                            18
termination of parole or probation). A Drug Court program is a form of conditional liberty

requiring the defendant to comply with certain conditions or face a loss of privilege, and

revocation of that privilege could not occur without inquiry. People v. Anderson, 833

N.E.2d 390, 395 (Ill. App. 2005).

       In DiMeglio, we said that where a DUI/DWI Treatment Court participant “signed

an agreement pursuant to which he agreed that one consequence of failure to comply with

the DUI/DWI Treatment Court requirements could be a ‘sanction’ that included

incarceration[, and w]hen the DUI Court imposed such a sanction for [the participant]’s

non-compliance, the court was acting under the agreement.” 201 Md. App. at 307.

Similarly to the agreement in DUI Court, the Drug Court Manual specifically outlines a

menu of sanctions triggered by specific violations. But unlike the agreement in DUI Court,

however, the Drug Court Agreement Ms. Brookman and Mr. Carnes entered specified “that

[the] Drug Court imposes graduated sanctions for lack of compliance with program

requirements, including incarceration[, and that participants] have the right to request and

have a formal adversarial hearing before the imposition of a sanction of incarceration or

before being terminated from Drug Court.” Ms. Brookman and Mr. Carnes were further

entitled to notice, a hearing, and counsel pursuant to Rule 16-206(e) because, in the face of

these particular violations, they faced a loss of liberty. So although Drug Court participants

have notice of the possible sanctions when they agree to participate in the program, they

simultaneously get notice of their ability to partake in an adversarial hearing before the

imposition of sanctions. In these cases, both appellants sought an adversarial hearing, and

neither got one.

                                             19
              1.       The Drug Court violated Ms. Brookman’s due process
                       rights.

       Citing the Drug Court Agreement, Participant Handbook, and Manual and Rule 16-

206(e), Ms. Brookman argues that her due process rights were violated when the Drug

Court “assume[d] the existence of a program violation and impose[d] a sanction by

reference to a prefixed schedule of program violations.” In particular, she contends that

the Drug Court violated her due process rights in three ways: “[f]irst, it assumed the

existence of a program violation; second, it would not consider her request for time to

prepare; and third, it imposed a sanction by reference to a prefixed schedule of program

violations.” The State responds that the Drug Court complied with Rule 16-206(e) by

affording Ms. Brookman’s “counsel the opportunity to appear and be heard.” We hold that

the Drug Court did not comply with Rule 16-206(e), and therefore, vacate the Drug Court’s

imposition of Ms. Brookman’s sanctions and remand her case to the Drug Court for an

adversarial hearing.

       It’s true that there was a hearing before the Drug Court imposed sanctions, that Ms.

Brookman was present, and that she had counsel. But the hearing wasn’t adversarial. To

the contrary, Ms. Brookman sought an opportunity to dispute the results of her urine tests,

and sought a continuance so that she could obtain an expert and analyze the results, and

the court refused. The court took the State’s allegations not only at face value, but as a fait

accompli, and denied her any opportunity to review or challenge the results before

imposing sanctions: “Well, Ms. Brookman, the, you know, we’ve set up the guidelines and

the policies in Drug Court. Positive tests are treated in a certain distinct fashion, low


                                              20
creatinine results are treated in a certain distinct fashion.” But where, as here, Ms.

Brookman faced incarceration for the deemed-positive test result, this sort of hearing

neither complied with the terms of Ms. Brookman’s Drug Court Agreement nor afforded

her due process. At the very least, she was entitled to an opportunity to review and analyze

the test results and offer testimony in her defense before being incarcerated, and even

though Rule 16-207 doesn’t define notice and an opportunity to be heard in precisely those

terms, she was entitled to those safeguards as a matter of due process before incarceration.

We have no idea whether she has a defense, nor do we address the Program’s treatment of

low creatinine readings as a violation—we hold only that Ms. Brookman was entitled to an

adversarial hearing, and that the Drug Court erred in denying her one.

              2.     The Drug Court violated Mr. Carnes’s due process rights.

       Mr. Carnes argues that the Drug Court violated his due process rights in two ways:

“[f]irst, it assumed the existence of a program violation; and second, it imposed a sanction

by reference to a prefixed schedule of program violations.” The State responds that the

Drug Court complied with Rule 16-206(e) by affording Mr. Carnes a hearing at which he

was allowed to argue that his failure to appear for a urinalysis should be construed as a late,

rather than missed, test. We hold that the Drug Court did not comply with Rule 16-206(e),

and therefore, vacate the Drug Court’s imposition of Mr. Carnes’s sanctions and remand

for further proceedings.

       The reader need not take our word for the fact that Mr. Carnes’s hearing wasn’t

adversarial—the Drug Court judge said as much himself: “[w]e’re here for a imposition of

a sanction with regard to a failure to appear for a urinalysis in Drug Court, and there was a

                                              21
request for [a] hearing from the defense. . . . This is just as informal as sanctions get.” But

although the Drug Court heard Mr. Carnes’s arguments about considering his individual

circumstances in imposing sanctions, it rejected the proposition that the menu of sanctions

be considered guidelines and imposed sanctions from the menu for Mr. Carnes’s failure to

appear for a urinalysis. The Drug Court also failed to consider the recommendation by the

other members of the Drug Court team, who did not think that Mr. Carnes should be

sanctioned pursuant to the sanctions menu under the circumstances. Mr. Carnes was due

an adversarial hearing, and the Drug Court, by its own reckoning, denied him that

opportunity. It may or may not prove availing, but he was entitled to challenge the State’s

allegations before being incarcerated.

                                           JUDGMENTS OF THE CIRCUIT COURT
                                           FOR    MONTGOMERY      COUNTY
                                           VACATED AND CASES REMANDED FOR
                                           FURTHER PROCEEDINGS CONSISTENT
                                           WITH THIS OPINION. MONTGOMERY
                                           COUNTY TO PAY COSTS.




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