Authority to Impose Substance Use Testing and Substance Use Disorder Treatment
Pretrial
The court has authority to issue an order of release or detention pending trial to a person charged with an offense. 18 U.S.C. §§ 3141, 3142.1 If released, the person may be released on personal recognizance, upon execution of an unsecured appearance bond, or on a condition or combination of conditions set forth in 18 U.S.C. § 3142(c). 18 U.S.C. § 3142(a). Under 18 U.S.C. § 3142(g), the judge must consider several factors in determining whether there are conditions of release that will reasonably assure the courtroom appearance of the person charged with an offense and the safety of any other person and the community. If the judge determines that the release with conditions is appropriate, the least restrictive condition or combination of conditions that will reasonably assure the appearance of the person as required and the safety of any other person and the community must be ordered. 18 U.S.C. § 3142(c)(1)(b). Alcohol and substance use restrictions and undergoing drug or alcohol dependency treatment are two types of conditions that may be appropriate and authorized under §§ 3142(c)(1)(B)(ix) and (x), respectively. In addition, the court may impose any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community. 18 U.S.C. § 3142(c)(1)(B)(xiv).
Post-Conviction
Probation
As an alternative to imprisonment, an individual may be statutorily eligible for probation.2 A sentence to probation may include mandatory conditions and/or discretionary conditions. See 18 U.S.C. §§ 3563(a)-(b); see also Overview of Probation and Supervised Release Conditions, available at https://www.uscourts.gov/services-forms/overview-probation-supervised-release-conditions; U.S.S.G. § 5B1.3. Under 18 U.S.C. § 3563(a)(5), if the offense of conviction is a felony, a misdemeanor, or an infraction, the individual must refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and at least 2 periodic drug tests thereafter (as determined by the court) for use of a controlled substance. This condition, however, may be waived or suspended by the court if reliable sentencing information indicates that the individual is at a low risk of future substance abuse.
In addition, under 18 U.S.C. § 3563(b)(7), the court may impose a condition that restricts the use of alcohol or any use of a controlled substance without a prescription by a licensed medical practitioner. The court may also direct the individual to undergo treatment of drug or alcohol dependency. 18 U.S.C. § 3563(b)(9).
Prerelease
Under 18 U.S.C. § 3624(c), the Federal Bureau of Prisons (BOP) is authorized to release a prisoner during the final months of the term of imprisonment under conditions that will afford that prisoner a reasonable opportunity to adjust to and prepare for reentry into the community. The United States Probation System, to the extent practicable, offers assistance to a prisoner during this prerelease custody period, including aiding in the continuity of alcohol and drug use disorder services. 18 U.S.C. § 3624(c)(3).
Supervised Release
A term of supervised release after imprisonment may be required by statute or may be imposed at the discretion of the court. 18 U.S.C. § 3583(a). Under 18 U.S.C. § 3583(d), a person subject to a term of supervised release must refrain from any unlawful use of a controlled substance and submit to a drug test within 15 days of release on supervised release and at least 2 periodic drug tests thereafter (as determined by the court). This condition may be waived or suspended by the court if reliable sentencing information indicates that the individual is at a low risk of future substance abuse. When considering any action against a person under supervision who fails a drug test, the court must consider whether the availability of appropriate substance use disorder treatment programs, or an individual’s current or past participation in such programs, warrants an exception from mandatory revocation. 18 U.S.C. § 3583(d).
In conjunction with the mandatory conditions of supervised release, the court is permitted to impose any of the discretionary conditions authorized under 18 U.S.C. § 3563(b) for probation, including alcohol and/or substance use restrictions and a directive to undergo treatment for drug or alcohol dependency.
Last Updated: March 2020
Explore the other sections of the Substance Use Testing and Substance Use Disorder Treatment Reference Guide.
1 The court is also authorized to order the release or detention of a material witness. 18 U.S.C. § 3144.
2 Under 18 U.S.C. § 3561(a), “A defendant who has been found guilty of an offense may be sentenced to a term of probation unless (1) the offense is a Class A or B felony and the defendant is an individual; (2) the offense is an offense for which probation has been expressly precluded; or (3) the defendant is sentenced to a term of imprisonment at the same time for the same or a different offense that is not a petty offense.” The statutorily authorized terms of probation are one to five years for a felony; not more than five years for a misdemeanor; and not more than one year for an infraction. 18 U.S.C. § 3561(c). In addition, under 18 U.S.C. § 3607, if an individual is found guilty of an offense described in section 404 of the Controlled Substance Act (21 U.S.C. § 844), has no prior convictions relating to controlled substances, and has not previously been the subject of disposition under 18 U.S.C. § 3607, the court may place the individual, with the person’s consent, on probation for up to one year. A term of probation under § 3607 may result in dismissal of the proceedings if the individual is compliant with the conditions of probation.