What is a Section 35?
Section 35 is a part of Chapter 123 of the Massachusetts General Laws and allows someone to seek an involuntary commitment for drug and alcohol abuse. See Massachusetts General Laws, Chapter 123, section 35.
Who can seek a Section 35?
Any police officer, physician, spouse, blood relative, guardian or court official may petition in writing any district court or any division of the juvenile court department for an order of commitment of a person whom he has reason to believe is an alcoholic or substance abuser.
Do I need both parents present to seek a warrant of apprehension?
The answer is NO.
How long is the application process?
The process in which a section is sought can take a significant amount of time. In my personal experience, it is a 2 day process. First, with petitioning the court and second, executing the warrant of apprehension. Both of these require hearings and meetings with the court doctor.
If you are lucky, it could take only one day, but be prepared to be at the court first thing in the morning and know exactly where your loved one is located once the warrant of apprehension issues in order for it to cut down the processing time.
Is a section 35 a criminal proceeding?
No. While a section is sought in the district court, a section 35 is a civil commitment and the warrant of apprehension is also civil in nature. Those subject to a warrant of apprehension are NOT under arrest.
When can a person be picked up on a Section 35 Warrant of Apprehension?
Because the process is civil in nature, a warrant of apprehension can only be served upon the respondent during open court hours. The respondents of such proceedings will not be picked up at any time in which the courts are closed, e.g. after hours, weekends or holidays.
When does a Warrant of Apprehension expire under a Section 35?
New guidelines as of late 2016 provide for the warrant of apprehension to be in effect for 5 business days.
What happens if the Warrant of Apprehension expires before my loved one is picked up?
You will have to start the process over. That is why it is best to have everything lined up prior to seeking the order. Prepare for the intervention days in advance and make sure that your loved one doesn’t find out ahead of time.
What does the court doctor do?
The court doctor meets with the family members seeking the Section to go over the history of the respondent’s drug use. During this meeting you will be given the opportunity to verbally explain the situation. Again, just like the application for the petition, you want to keep it fact based, and I recommend telling them everything, e.g. Family history of addiction, mental illness, the destructive patterns of behavior, overdoses, arrests, etc.
Keeping your emotions in check during this meeting is nearly impossible, especially the first time, so go easy on yourself. Again, try not to take the Doctor’s demeanor or questions personal, they are just trying to gather all of the facts in order to do their job and are overwhelmed with the number of people seeking a Section 35.
The court doctor will then enter the info into their records, call to determine if there are beds, and then send the case to the court for the first set of hearings.
If there aren’t any beds at the treatment facilities, the court doctor will advise you that there is a possibility that your loved one (males only) could go to Bridgewater and it is at that time you will have to make hard choices.
NOTE: Females are no longer sent to MCI Framingham
Side note: Jail vs. Death – it was always a no brainer for me, but, understandably, some of you will have a hard time with this choice. Just trust that you are making the best decisions you can based on what you can do in that particular moment.
Once your loved one is brought to the court, the doctor will meet with them and make an assessment based any number of things. They are trained in signs of addiction and will recognize signs of abuse and/or withdrawal. Once that occurs a second hearing will be held where the doctor will testify to the judge regarding what you have told the doctor, their observations and assessment of your loved one. You may or may not be called to testify. If so, continue to stick to the facts listed in your petition.
Does my loved one get a say on whether or not they receive treatment?
The respondent of any Section 35 will be assigned an attorney to represent them at the hearing. Any good lawyer will represent their client to the fullest extent, so try not to take anything that is said iin their defense personal.
However, if the court doctor testifies that there is evidence that the respondent is abusing drugs and is in need of treatment, then the judge will adjudicate the Section 35 and your loved one will be transported to the treatment facility.
How long will my loved one be in treatment?
The law as it is currently written prescribes the following:
“court may order such person to be committed for a period not to exceed 90 days, followed by the availability of case management services provided by the department of public health for up to 1 year; provided, however, that a review of the necessity of the commitment shall take place by the superintendent on days 30, 45, 60 and 75 as long as the commitment continues. A person so committed may be released prior to the expiration of the period of commitment upon written determination by the superintendent that release of that person will not result in a likelihood of serious harm.”
However, as many of us are aware and have experienced, many are released much sooner than that depending on availability of beds and willingness to continue treatment. Average length of stay is usually 21-30 days.
How to write an effective Petition for a Section 35:
Court personnel and Judges are legal minded and while this is an emotional issue for us as parents, we need to try keeping our emotions in check in order to effectively receive help from the court. I know how hard it is, as I have had to do it many times. However, the easier it is for them to read, the better your chances are of successfully receiving the order for the warrant of apprehension and civil commitment.
1. Keep it fact based, clear and concise and in reverse chronological order; First Paragraph/Sentence should be structured as follows:
a. Example: My son or daughter, (Insert Name) is (insert method of use: injecting, smoking, snorting, etc.) (insert drug of choice) and has been using since (insert date of first use).
2. Next state what has happened most recently;
a. Example: On or about the following dates my (son or daughter) has:
i. (Insert Date) overdosed;
ii. (Insert Date) has been hospitalized for (insert medical info);
iii. (Insert Date) been making threats (Describe the threats: suicidal or violent towards others –intentionally OD, going to burn the house down, etc.);
iv. (Insert Date) been physically abusive;
v. (Insert Date) been arrested for, etc.
List out their destructive behaviors by date: Most recent to oldest.
DATES DO NOT HAVE TO BE EXACT: If you can’t remember the date, put month/year.
3. Closing Statement: Always close your request with:
“Based on the above reasons, I fear for my child’s safety and life. I believe that there is significant likelihood and imminent threat of death and/or harm to self and/or others. I hereby request the court order a warrant of apprehension in order to save my (son or daughter’s) life, pursuant to MGL. Chapter 123, Section 35; for a minimum of 5 business days in order for me to successfully locate (him or her) and present (him or her) to the court.”
4. Signing the Petition: Always end with the following Closing Salutation:
a. Respectfully, Jane. A. Doe (Insert your contact info under your name)
On a personal note, I have used this law many times, including on my own mother. Some would say they didn’t agree with the way I went about things and others will argue that it doesn’t work because the individual has to be ready.
Here’s what I say: Section them as often as necessary and possible to save their life! It may not work the first time, it may not work the 20th time, but here’s what it will do: keep them alive in that moment and interrupt the progression of their disease. For each time it is interrupted, they have an opportunity at gaining that moment of clarity that would start them on the road to long term recovery.