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Principles of Addictions and the Law: Applications in Forensic, Mental Health, and Medical Practice

Principles of Addictions and the Law: Applications in Forensic, Mental Health, and Medical Practice

by Norman S. Miller

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The book includes an examination of sources of law important to addiction and its treatment. The foundations for forensic work in professional legal testimony is explored (e.g., legal system, case law precedent, statutes governing addictions, civil and criminal procedures). The science of addiction is featured including the biology of addiction, addiction as a brain


The book includes an examination of sources of law important to addiction and its treatment. The foundations for forensic work in professional legal testimony is explored (e.g., legal system, case law precedent, statutes governing addictions, civil and criminal procedures). The science of addiction is featured including the biology of addiction, addiction as a brain disease, responsibility vs. loss of control, development of addictions, and the role of genetics and environment. Drug testing, its uses with forensic populations, what the tests show and do not show, controversies in using tests in the general population also receives extensive treatment. Addiction and mental illness in forensic populations is highlighted for addiction treatment and continuing care. Case studies and landmark cases illustrate the role of alcohol, drug use, and addictions in legal decisions.

  • Focused primarily on alcohol and drug addictions
  • Case studies and landmark cases are included to illustrate the role of alcohol/drugs in legal decisions (e.g., the Exxon Valdez case)
  • Brief overview of legal system and drug courts will be useful to clinicans, lawyers, administrators, and other professionals

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Elsevier Science
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Principles of Addictions and the Law

Applications in Forensic, Mental Health, and Medical Practice

Academic Press

Copyright © 2010 Elsevier Inc.
All right reserved.

ISBN: 978-0-08-092476-2

Chapter One

The Basic Legal Structure and Organization

Anna Baumgras Midland, MI, USA


The United States legal system is structured to protect individual rights and prevent overpowering government officials from violating those rights. The United States Constitution is the supreme source of law. It establishes and controls the legal system structure. All other laws are measured against, and must be consistent with, the Constitution. The Constitution establishes two basic levels of law: the state and the federal. At the federal level, the Constitution establishes three sources of law: the Executive Branch, the Legislative Branch, and the Judicial Branch (the Legislative Branch is governed by Article I; the Executive Branch is governed by Article II; the Judicial Branch is governed by Article III). All states have enacted a state constitution, which establishes the structure of the state government. Often the state constitution resembles the United States Constitution, and therefore establishes a state executive branch, legislative branch and judicial branch. However, the state constitution details vary by state. State law also establishes and regulates local law, including county, city, township and village law.

Each branch of government serves a distinct purpose in governing the country and provides a "check" on another branch to keep the government balanced. The Executive Branch is responsible for "tak[ing] Care that the Laws be faithfully executed ..."(U.S. Const. art. II, § 3). In other words, the main purpose of the Executive Branch is to execute the laws enacted by the Legislature. To execute these laws, the President appoints the heads of federal agencies. Agencies are responsible for the day-to-day enforcement of laws and for supplementing broad statutory language by promulgating rules and regulations. Examples of agencies are the Environmental Protection Agency (EPA) and the Food and Drug Administration (FDA). The Executive Branch also has the power to create law by issuing Executive Orders and entering into treaties (U.S. Const. art. II, § 2). The Legislative Branch is responsible for drafting and enacting statutes (U.S. Const. art. I, § 8). The Judicial Branch is responsible for interpreting laws, ensuring they are constitutional and applying them to the facts of a case to facilitate an impartial outcome (U.S. Const. art. III, § 2). This chapter will focus on the federal system, including the Judicial Branch, basic constitutional rights and the Legislative Branch. It will also address how addictions interact with the law.


Article III, section 1 of the Constitution establishes the Judicial Branch by stating, "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" (Idem at § 1). Article III, section 2 provides the Judicial Branch with authority over cases and controversies arising under the Constitution or the laws of the United States (Idem at § 2).

The United States has two basic court systems: the state and the federal. In each of these systems there is a hierarchy of courts (see Figure 1.1). At the state level, the lowest levels of courts are the Trial Courts, followed by the Appellate Courts and finally the State Supreme Courts. At the federal level, the country is divided into ninety-four districts and thirteen circuits. Each section represents a court's jurisdiction. The lowest levels of courts are the United States District Courts, followed by the United States Courts of Appeals (Circuit Courts) and finally the Supreme Court of the United States. Each lower level court is bound by higher level court decisions within the same jurisdiction. The state courts are also bound by the United States Supreme Court's decisions. Additionally, each court is bound by its prior decisions under the principle of stare decisis et non quieta movere, which means "to stand by things decided, and not to disturb settled points" (Garner, 2004). These principles allow relative consistency in law. The different levels of courts serve different functions. The trial court first determines the facts involved in the case and establishes the record. The record may consist of written memoranda of law (briefs) written by each party, oral arguments, testimony and exhibits. Then the trier of fact, either a judge or a jury in the trial court, will apply the law to the established facts and make a decision.

If either party is unhappy with the outcome, it may appeal the case. However, only matters of law can be appealed. The appellate court reviews the trial court's decision for reversible error. The appellate court will neither hear new testimony on the issue, nor review new evidence; it must base its decision on the record, the written appellate briefs and the appellate oral arguments. Typically, the intermediate appellate court must hear a case because the parties have a right to appeal; conversely, the Supreme Court (state or federal) can use discretion when deciding whether to hear a case.

Currently there are over 2,000 special courts dedicated solely to presiding over nonviolent drug and alcohol offenses (Office of National Drug Control Policy). These courts, called "drug courts," focus on the defendant's treatment and recovery, rather than his or her guilt. Offenders are placed in treatment programs that involve counseling, frequent drug testing and frequent court appearances, rather than jail or prison. Participants in the drug court programs who complete their treatment may have their charges dropped or their penalties reduced (National Criminal Justice Reference Service). Research has shown that participating in treatment rather than jail reduces the chance of future criminal behavior (National Criminal Justice Reference Service).


There are two basic types of cases: civil and criminal. In a civil case, an individual(s) (the plaintiff) files suit against another individual(s) (the defendant). In a criminal case, the government, acting on behalf of the victim, files a suit against the defendant. Each type of case has a different standard of proof that the proponent of the case must satisfy to prevail. Generally, in a civil case involving solely monetary interests, the plaintiff must prove his or her claim by a "preponderance of the evidence" (more likely than not). If the civil case involves a social policy interest, the plaintiff has a slightly higher standard of proof. He or she must prove his or her claim by "clear and convincing evidence."

Because the consequences for criminal cases are more severe, the burden of proof is higher than in civil cases. The state must prove that the defendant is guilty of every element of the alleged crime "beyond a reasonable doubt." Although there is no standard definition for beyond a "reasonable doubt," the Ohio Legislature has provided one definition:

"Reasonable doubt" is present when the jurors, after they have carefully considered and compared all the evidence, cannot say they are firmly convinced of the truth of the charge. It is a doubt based on reason and common sense. Reasonable doubt is not mere possible doubt, because everything relating to human affairs or depending on moral evidence is open to some possible or imaginary doubt. "Proof beyond a reasonable doubt" is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person's own affairs. (Ohio Rev. Code Ann. § 2901.05(E) (West 2008))

Criminal Law

Elements of Crimes

Most crimes consist of two elements: the actus reus, which is Latin for "guilty act" (Garner, 2004); and the mens rea, which is Latin for "guilty mind" (Idem). In other words, to be convicted the defendant must have intended to commit a crime and must have physically acted in furtherance of that crime. According to the Model Penal Code (MPC) a failure to act may be considered an act. One limitation of the act requirement is that the act must be a voluntary act. MPC section 2.01(1) states: "A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable."

There are two forms of criminal intent (mens rea); general intent and specific intent. General intent is associated with criminal recklessness (conscious disregard for a known risk) and criminal negligence (should have been aware of a risk). Crimes that typically involve general intent include battery, rape, or involuntary manslaughter. Specific intent is associated with purpose (conscious object) and knowledge (aware that a result will occur). Crimes that typically involve specific intent include assault, voluntary manslaughter and intent to kill.

There are two levels of punishment, depending on the severity of the crime. The first is a misdemeanor, which is generally punishable by less than a year in jail or a monetary fine. The second is a felony, which is generally punishable by at least one year in prison or possibly death. The defendant's state of mind at the time of the crime may also significantly impact on the level of punishment. For example, as discussed infra, diminished capacity may affect the defendant's ability to form the requisite intent.

Defenses to Crimes


Whether a defendant can claim intoxication as a defense to a crime often depends on whether it was voluntary or involuntary intoxication. Voluntary intoxication occurs when the defendant intentionally consumes a substance known to be intoxicating without any duress. The defendant does not have to intend to become intoxicated. Voluntary intoxication may be a defense to specific intent crimes if the defendant can prove it precluded him or her from forming the requisite intent; it is never a defense to general intent crimes. Involuntary intoxication occurs when the defendant consumes an intoxicating substance under duress, or when the defendant does not know the substance is intoxicating. Involuntary intoxication may be a defense to both general intent and specific intent crimes.

Model Penal Code § 2.08


1. Except as provided in Subsection (4), intoxication of the actor is not a defense unless it opposes an element of the offense.

2. When recklessness establishes an element of the offense if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.

3. Intoxication does not, in itself, constitute mental disease within the meaning of the Model Penal Code.

4. Intoxication that: (a) is not self-induced; or (b) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality (wrongfulness) or to conform his conduct to the requirements of law.

5. Definitions:

a. "intoxication" means a disturbance of mental or physical capabilities resulting from the introduction of substances into the body;

b. "self-induced intoxication" means intoxication caused by substances that the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime;

c. "pathological intoxication" means intoxication grossly excessive in degree, given the amount of intoxicant, to which the actor does now know he is susceptible.

It is important to note that intoxication may be caused by any substance, including alcohol, drugs, or medication.


Generally, drug addiction and intoxication do not qualify for an insanity defense. However, prolonged drug use or excessive alcohol use may cause delirium tremens, which is a form of insanity. Therefore, the defendant may be permitted to claim both an insanity defense and an intoxication defense. Additionally, a few jurisdictions have permitted an addicted defendant to raise an insanity defense because the addiction impaired criminal responsibility. Whether a jurisdiction permits addiction to qualify for an insanity defense may depend on the insanity test it has adopted.

There are four tests courts use to determine whether a person is legally insane. The first is the M'Naghten Rule, which states that a defendant is not guilty when a disease of the mind caused a defect of reason such that the defendant lacked the ability at the time of his or her actions either: (1) to know the wrongfulness of his or her actions; or (2) to understand the nature and quality of his or her actions. The second is the Irresistible Impulse Test, which states that a defendant is not guilty if a mental illness rendered him or her unable to control his or her actions, or to conform his or her conduct to the law. The third is the Durham Test, which states that the defendant is not guilty if his or her crime was the product of mental disease or defect. The last is the American Law Institute or Model Penal Code Test, which states that the defendant is not guilty if he or she suffered from a mental disease and therefore lacked substantial capacity either: (1) to appreciate the criminality of his or her conduct; or (2) to conform his or her conduct to the law.

The legislature has codified the insanity defense at 18 U.S.C. § 17.

1. Affirmative defense: it is an affirmative defense to a prosecution under any federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

2. Burden of proof: the defendant has the burden of proving the defense of insanity by clear and convincing evidence.

Civil Law

A civil offense is termed a tort. The goal of tort law is to make the injured party whole again, usually by requiring the opposing party to pay damages. Two common types of torts are intentional torts and unintentional torts.

Intentional Torts

Intentional torts generally require that the plaintiff establish three elements: (1) the defendant acted; (2) the defendant intended the consequences of his or her act; and (3) the defendant's actions caused the injury. As in criminal law, intent can be specific or general. Examples of intentional torts include civil assault and civil battery. Battery occurs when the defendant acts intending to cause harmful or offensive contact to the plaintiff, or apprehension of such contact, and such contact results. Assault occurs when the defendant acts intending to cause imminent apprehension of harmful or offensive contact to the plaintiff and such imminent apprehension results.

Unintentional Torts

Unintentional torts fall under the category of negligence. To establish a case of negligence, the plaintiff must prove four elements: duty; breach; causation; and damages. Duty arises when the defendant must act with a certain standard of care to avoid injury to the plaintiff. Breach occurs when the defendant fails to exercise that duty of care. Causation requires the plaintiff to connect the defendant's actions with his or her injury. The plaintiff must prove two forms of causation: actual cause and proximate cause. Actual cause means that the defendant's act was in fact the cause of the injury. Proximate cause means that the defendant's act was sufficiently connected with the plaintiff's injury to hold the defendant liable for the injury. Therefore, certain intervening forces that produce unforeseeable injuries may sever the defendant's liability, despite his or her negligent actions actually causing the plaintiff's injuries. Finally, damages occur when the plaintiff suffers actual harm, either to his or her person or property.

Malpractice is a form of professional negligence. Professionals are held to a standard of care as measured by others within that profession. Therefore, professionals such as doctors and lawyers are required to exercise their superior knowledge when acting on or with patients or clients.

Offenses Related to Addictions

Clearly, addictions and the law are intertwined. For example, addiction may cause a person to commit a theft crime such as larceny, robbery, or burglary when he or she needs money to buy the intoxicating substance. Additionally, addiction may cause a person to commit an offense because of the intoxication. Driving under the influence, public intoxication and possession are common offenses an addict may commit. Because states generally regulate these offenses, the elements of the offense and the penalties vary by state. Below are examples of how states define and punish these offenses.


Excerpted from Principles of Addictions and the Law Copyright © 2010 by Elsevier Inc. . Excerpted by permission of Academic Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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