Substance Abuse Treatment Isn’t Medical or Psychiatric Treatment for Probation Purposes

A special purpose extension of probation is permitted only for certain specified purposes. According to a case decided earlier this week, substance abuse treatment isn’t one of them.

I covered the basics of probation extensions here, and in video form here. As noted in those posts, there are two types of probation extensions: I call them ordinary extensions under G.S. 15A-1344(d), and special purpose extensions under G.S. 15A-1342 or G.S. 15A-1343.2. Through ordinary extensions probation can be extended out to 5 years. Special purposes extensions allow extension by up to 3 years beyond the original period, which could carry past 5 years if the original period were long enough at the outset. But, as I noted above, that sort of extension can be done only for certain purposes specified in the General Statutes. Which brings us to State v. Peed.

In Peed, the defendant was sentenced to 30 months of supervised probation in August 2013. In February 2016, just before his probation was set to expire, a judge extended his probation by 12 months. The extension was styled as a special purpose extension under G.S. 15A-1342(a) or G.S. 15A-1343.2(d).

Those two statutes say essentially the same thing: that extension under them is allowed only when (1) the defendant consents, (2) the extension is ordered in the last six months of the original period of probation, and (3) the extension is ordered “to allow the defendant to continue medical or psychiatric treatment ordered as a condition of probation.” The modification order extending the probation instructed the defendant to complete substance abuse treatment at Southlight, a treatment provider in Wake County.

He didn’t. In June 2016, during the extended probation period, his probation officer filed a violation report alleging that Mr. Peed had absconded, used controlled substances, and failed to complete treatment.

At the ensuing violation hearing, the defendant moved to dismiss, arguing that the February 2016 extension was invalid because substance abuse treatment is not “medical or psychiatric treatment” within the meaning of the special purpose extension statutes. The trial court denied the motion and revoked, and the defendant appealed.

The court of appeals reversed. The extension was done with the defendant’s consent, and done in the last six months of the original period (it happened in month 29 of a 30-month period). The problem was with the special purpose. The unanimous panel concluded that substance abuse treatment is neither synonymous with nor a subset of medical or psychiatric treatment. To the contrary, there are separate statutory conditions of probation for “medical or psychiatric treatment” (G.S. 15A-1343(b1)(1)) and “substance abuse assessment, monitoring, or treatment” (G.S. 15A-1343(a1)(4). Given that the General Assembly viewed those types of treatment as separate, the court of appeals interpreted the reference to “medical and psychiatric treatment” in the special purpose extension statute to not include “substance abuse treatment.” Thus, the trial court’s February 2016 extension was invalid, and so, in turn, was the revocation entered during the extended period.

If you had asked me before Peed whether substance abuse treatment was a permissible grounds for a special purpose extension, I would have said there was a pretty good policy argument that it was. Substance abuse treatment can include elements of both medical and psychiatric treatment. But Peed is about statutory interpretation, not policy. And under the court of appeals’ interpretation, substance abuse is no longer a permissible purpose for a special purpose extension. Paying restitution and completing other medical or psychiatric treatment are the only permissible grounds. Mr. Peed did owe restitution earlier in the life of his case, but it was paid before the special purpose extension was entered in 2016.

So does that mean his probation could not have been extended for treatment at that point? No, it does not mean that. Mr. Peed’s original period of probation was only 30 months. That means he could have been extended by up to 30 months (to the 5-year maximum) through ordinary extensions. Ordinary extensions do not require the defendant’s consent and may be done at any time before expiration for any good cause—substance abuse treatment included.

The trade-off with ordinary extensions, though, is that the court may only do them after providing notice, hearing, and counsel. And as some readers will recall, a couple of unpublished cases (discussed here) have suggested that there is no clear authority for a defendant to waive that right to a hearing. With those cases in mind, Probation decided last year as a matter of policy that they would no longer pursue ordinary extensions without a hearing before the court. So, probation can still be extended to allow for treatment, but it will be a bit more administratively burdensome to do it.

Obviously Mr. Peed isn’t the only defendant affected by this case. Many probationers have had their probation extended for substance abuse treatment, and some of those extensions were probably special purpose extensions (especially after last year’s policy change, which left special purpose extensions as the only type that officers would ask judges to do in chambers). I suspect there are many defendants still on probation based on an extension we now know was improper, and also some prison and jail inmates who were found in violation and revoked during an improperly extended period. It won’t always be easy to identify them (some may have been extended for both substance abuse treatment and restitution, for example, and the restitution is still a permissible grounds for a special purpose extension), but many of them will be entitled to relief.

2 thoughts on “Substance Abuse Treatment Isn’t Medical or Psychiatric Treatment for Probation Purposes”

  1. 12a box of the felony sentencing sheet (AOC_CR_605) lists probation violation w/n 10 years as an aggravating factor. Let’s assume a probation violation was entered like this. What are the remedies? Is this a decision that is retroactive to probation violations entered previously? How would a defendant seek relief?
    So it’s been a while since I’ve done criminal law. Is there a NC rule for retroactivity? The federal doctrine started with Linkletter right, or is Linkletter the big case from which this jurisprudence arises?
    From what I see, this decision gets at the heart of this court’s subject matter jurisdiction. This isn’t a new crim pro procedure that wouldn’t be retroactive, but that subject matter jurisdiction is lacking and could be challenged later.
    Hypo: defendant is facing felony sentencing with a notice of prosecutor’s intent to prove a probation violation similar to this case.
    Can he collaterally attack the violation in sentencing?
    What about habeas or a motion for appropriate relief?


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