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General Laws

Section 10. Any defendant who is charged with a drug offense shall, upon being brought before the court on such charge, be informed that he is entitled to request an examination to determine whether or not he is a drug dependent person who would benefit by treatment, and that if he chooses to exercise such right he must do so in writing within five days of being so informed.

If the defendant requests such an examination, the court may in its discretion determine that the defendant is a drug dependent person, who would benefit by treatment, without ordering the examination. In such event, the court shall inform the defendant that he may request assignment to a drug treatment facility, and advise him of the consequences of assignment and that if he is so assigned the court proceedings shall be stayed for the term of such assignment.

The court proceedings shall be stayed for the period during which a request made under this section is under consideration by the court. If the defendant requests an examination, the court shall, unless the court has already determined that the defendant is a drug dependent person, appoint a psychiatrist, or if it is, in the discretion of the court, impracticable to do so, a physician, to conduct the examination at an appropriate location designated by it. In no event shall the request for such an examination or any statement made by the defendant during the course of the examination, or any finding of the psychiatrist or physician be admissible against the defendant in any court proceedings.

The psychiatrist or physician shall report his findings in writing to the court within five days after the completion of the examination, stating the facts upon which the findings are based and the reasons therefor.

If the defendant is also charged with a violation of any law other than a drug offense, the stay of the court proceedings may be vacated by the court upon the report of the psychiatrist or physician, whereupon the report shall be considered upon disposition of the charges in accordance with sections eleven and twelve, and the remaining provisions of this chapter shall not apply. If the defendant is charged with a drug offense only and if the psychiatrist or physician reports that the defendant is a drug dependent person who would benefit by treatment, the court shall inform the defendant that he may request assignment to a drug treatment facility, and advise him of the consequences of the assignment and that if he is so assigned the court proceedings shall be stayed for the term of such assignment.

If the defendant requests assignment and if the court determines that he is a drug dependent person who would benefit from treatment the court may stay the court proceedings and assign him to a drug treatment facility.

An order assigning a person under this section shall specify the period of assignment, which shall not exceed eighteen months or the period of time equal to the maximum sentence he could have received had he been found guilty of every count alleged in the complaint or indictment, whichever is shorter.

In determining whether or not to grant a request for assignment under this section, the court shall consider the report, the past criminal record of the defendant, the availability of adequate and appropriate treatment at a facility, the nature of the offense with which the defendant is charged including, but not limited to, whether the offense charged is that of a sale or sale to a minor, and any other relevant evidence.

In the event that the defendant requests assignment and if the court determines that the defendant is a drug dependent person who would benefit by treatment, and the defendant is charged for the first time with a drug offense not involving the sale or manufacture of dependency related drugs, and there are no continuances outstanding with respect to the defendant pursuant to this section, the court shall order that the defendant be assigned to a drug treatment facility without consideration of any other factors.

Before such assignment, the court shall consult with the facility or the division, to determine that adequate and appropriate treatment is available.

If the defendant requests assignment, and if the court determines that the defendant is a drug dependent person who would benefit by treatment, and the defendant is charged for the first time with a drug offense not involving the sale or manufacture of dependency related drugs, and there are no continuances outstanding with respect to the defendant pursuant to this section, and adequate and appropriate treatment at a facility is not available, the stay of court proceedings shall remain in effect until such time as adequate and appropriate treatment at a facility is available.

In all other cases, an assignment order shall not be made unless, after consultation with the facility or the division, the court determines that adequate and appropriate treatment is available, provided, however, that the court may in its discretion order that the stay of court proceedings remain outstanding until such time as adequate and appropriate treatment is available.

In the event that the stay of the court proceedings remains in effect for the reason that adequate and appropriate treatment at a facility is not available, the issue of the availability of adequate and appropriate treatment at a facility may be reopened at any time by the court on its own motion, or on motion by the prosecutor, or the defendant.

In no event shall any defendant be assigned pursuant to this section unless the defendant consents in writing to the terms of the assignment order.

If the psychiatrist or physician reports that the person is not a drug dependent person who would benefit by treatment, the defendant shall be entitled to request a hearing to determine whether or not he is a drug dependent person who would benefit by treatment. The court may on its own motion, or shall, upon request of the defendant or his counsel, appoint an independent psychiatrist, or if it is impracticable to do so, an independent physician to examine the defendant and testify at the hearing. If the court determines that the defendant is a drug dependent person who would benefit by treatment, the procedures and standards applicable to a defendant who is determined by the court, following the report of the first examining psychiatrist or physician to be a drug dependent person who would benefit by treatment, shall apply to the defendant.

If the court does not assign the defendant to a facility, the stay of the court proceedings shall be vacated.

At any time during the term of assignment, the administrator may transfer any inpatient, to an outpatient program if he finds that the patient is a proper subject for an outpatient program; provided, however, that the administrator may retransfer the patient to an inpatient program if he finds that the person is not suitable for outpatient treatment, and provided further that immediately upon such transfer the administrator shall notify in writing the assigning court and the director of such transfer.

Any patient assigned under this section may apply in writing to the assigning court for discharge or transfer either from inpatient or outpatient treatment or from one facility to another; provided, however, that not more than one such application may be made in any three-month period. Upon receipt of an application for discharge or transfer, the court shall give written notice to the patient of his right to a hearing and to be represented by counsel at the hearing.

Within ten days of the receipt by the court of an application for discharge, the administrator and an independent psychiatrist, or, if none is available, an independent physician, designated by the court to make an examination of the patient shall report to the court as to whether or not the patient would benefit from further treatment at a facility. If the court determines that the patient would no longer so benefit, the patient’s application for discharge shall be granted. If the court does not so determine, said application shall be denied.

Within ten days of the receipt by the court of an application for transfer, the administrator shall report to the court as to whether the patient is a proper subject for the transfer for which he has made application. If the court determines that the patient is a proper subject for the transfer, the patient’s application for transfer shall be granted and the assigning court shall be so notified. If the court does not so determine, said application shall be denied.

Throughout the period of assignment at a facility pursuant to this section, the administrator of said facility shall provide quarterly written reports on the progress being made in treatment by the defendant to the assigning court. Failure to comply may be grounds for suspension of the facility’s license. At the end of the assignment period, or when the patient is discharged by the administrator, or when the patient prematurely terminates treatment at a facility, whichever occurs first, the administrator shall notify in writing the assigning court and the director of such termination, and further shall state the reasons for such termination, including whether the defendant successfully completed the treatment program.

In reaching its determination of whether or not the defendant successfully completed the treatment program, the court shall consider, but shall not be limited to, whether the defendant cooperated with the administrator and complied with the terms and conditions imposed on him during his assignment. If the report states that the defendant successfully completed the treatment program, or if the defendant completes the term of treatment ordered by the court, the court shall dismiss the charges pending against the defendant. If the report does not so state, or if the defendant does not complete the term of treatment ordered by the court, then, based on the report and any other relevant evidence, the court may take such action as it deems appropriate, including the dismissal of the charges or the revocation of the stay of the court proceedings.

As to any defendant determined by the court pursuant to this section to be a drug dependent person who would benefit by treatment, concerning whom the court does not order assignment in lieu of prosecution, the court may in the event that such person is convicted of the criminal charges, order that he be afforded treatment pursuant to either section eleven or twelve. The provisions of this chapter shall apply to juveniles in the same manner and under the same terms and conditions as adults; provided that no juvenile shall be committed to a facility without the consent of his parents or guardian.

The provisions of this section shall apply to proceedings in the superior court provided, however, that no defendant who has been examined for his drug dependency pursuant to this section in a district court shall have the right to a new examination if his case is bound over or appealed to the superior court; provided, however, that a superior court judge may, in his discretion, grant a second such drug examination.

During any stays authorized by this section, the court may in its discretion place the defendant in the care of a probation officer until he is accepted at a facility. For the purposes of this section, the term “facility” shall include federal facilities. The provisions of this section shall not apply to a person charged with violating sections thirty-two to thirty-two G, inclusive, of chapter ninety-four C of the General Laws.

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