Substance Use Testing and Substance Use Disorder Treatment in Practice

General Principles and Considerations

Substance use testing and substance use disorder treatment are most effective when imposed in conjunction with a federal supervision condition. Testing and treatment services, when combined with a supervision condition, also help ensure that the person enrolled in these services returns to court for any required appearances, obeys the law, and does not pose a danger to the community.

Alcohol and substance use testing may be imposed by the court as an independent condition or it may be imposed as a provision of a treatment condition. Through testing, officers can better gauge the level of substance use and make referrals or recommendations for substance use treatment if necessary. Under Judicial Conference policy, the frequency of testing should continuously be adjusted based on the identified risks of the individual being tested.¹

Pretrial

A substance use restriction condition or a condition to undergo substance use disorder treatment can be imposed on an individual during pretrial release. These conditions may reduce the possibility that the individual will illegally consume mood-altering substances that may impact their risk of danger to the community and risk of nonappearance in court. The court may impose a substance use restriction condition or condition to undergo treatment when the individual is:

• charged with an alcohol- or drug-related offense;
• has a criminal history of alcohol- or drug-related charges;
• is identified as having current risk factors (nonappearance and/or
• danger to the community) that relate to substance use disorders;
• tests positive for illegal drugs; and
• has a history of substance abuse.

In keeping with the statutory requirements of imposing the least restrictive conditions, as well as the Judicial Conference’s policy of applying the least restrictive interventions, it is important that the intensity of testing and/or treatment match the specific needs of the individual. Research indicates that providing services too intensely is detrimental to an individual’s compliance and will impact the intended outcomes. Treatment interventions must be viewed as a continuum of care. Placement and movement within the treatment continuum should be based on ongoing assessments of current risk and aimed at how to best help the individual become capable of sustaining recovery.

Substance use restrictions and treatment conditions are most effectively monitored by use of pretrial services supervision that incorporates alcohol and substance use testing to ensure effective monitoring of these restrictions. Use of pretrial supervision over these conditions is also effective because officers have access to treatment providers and can monitor the individual’s progress and compliance with treatment.

Probation

A substance use restriction condition, condition to submit to drug testing, and/or a condition to undergo treatment can be imposed on an individual on probation. A sentence to probation with such a condition or conditions serves as an alternative to detention for a person under supervision with substance use problems if the person’s appearance and the community’s safety can reasonably be assured with the imposition of this alternative.

Prerelease Custody

During prelease custody, officers, to the extent practicable, have the opportunity to work with a person on prerelease custody to minimize risk and maximize continuity of services. The continuity of interventions to address issues such as thinking that supports criminal behavior, antisocial associations, and alcohol or drug use, is particularly important to achieving lawful self-management and success in the community.

Post-Conviction Supervision

A period of supervision is an opportunity for the person under supervision to develop the skills and motivation to become and remain lawful, eventually without the oversight and support of the justice system. Therefore, under Judicial Conference policy, the goal for each person under supervision is lawful self-management, meaning the individual has the tools to make a personal choice not to engage in criminal behavior.² Conditions of substance use testing and/or substance use disorder treatment while on supervised release can provide tools to help achieve sobriety and reduce the risk of danger in the community posed by those under supervision through monitoring, restrictions, and interventions. As with other discretionary conditions, substance use restrictions, testing, and treatment should be individualized and involve only such deprivation of liberty or property as is reasonably necessary to achieve the supervision objectives. Research suggests that higher risk individuals should receive the most intensive and extensive interventions.

Graduated Sanction

Substance use testing and/or substance use disorder treatment can be recommended as a sanction or action when addressing violations, but should be recommended only to address specific risks associated with a violation. See 18 U.S.C. § 3563(e); 18 U.S.C. § 3583(d). The frequency and type of testing and/or treatment should be based on the individual’s risk level.

Sample Condition Language for Court Orders

The following language may provide guidance when imposing a substance use testing or substance use disorder treatment condition. While this section includes sample condition language for special conditions that is intended to be clear and legally sound, there may be cases where the court or the parties determine that different language is necessary to account for the individual circumstances in that case. There may also be case law in individual circuits requiring variations from the sample special condition language. For instance, circuits vary in the level of specificity required in conditions to prevent over-delegation of authority to officers. Each district should fashion special conditions that comport with circuit case law requirements.

Pretrial Release

Language for imposition of a condition of alcohol or substance use restriction or treatment is available on AO Form 199B (“Additional Conditions of Release”).

Post-Conviction Supervision

The following is sample language the court may use when imposing a condition of substance use restriction or treatment on a person under post-conviction supervision³:

• You must participate in an [inpatient/outpatient] substance use disorder treatment program and follow the rules and regulations of that program. The probation officer will supervise your participation in the program (provider, location, modality, duration, intensity, etc.). [[You must pay the costs of the program.] [You must pay [$___ per ___ (e.g., visit, week, month)] or [___% of the costs of the program.]]
• You must participate in an [inpatient/outpatient] alcohol use disorder treatment program and follow the rules and regulations of that program. The probation officer will supervise your participation in the program (provider, location, modality, duration, intensity, etc.). [[You must pay the costs of the program.] [You must pay [$___ per ___ (e.g., visit, week, month)] or [___% of the costs of the program.]]
• You must not use or possess any controlled substances without a valid prescription. If you do have a valid prescription, you must disclose the prescription information to the probation officer and follow the instructions on the prescription.
• You must submit to substance use testing to determine if you have used a prohibited substance. [[You must pay the costs of the testing.] [You must pay [$___ per ___ (e.g., visit, week, month)] or [___% of the costs of the testing.]] You must not attempt to obstruct or tamper with the testing methods.
• You must not use or possess alcohol.
• You must not knowingly purchase, possess, distribute, administer, or otherwise use any psychoactive substances (e.g., synthetic marijuana, bath salts, etc.) that impair a person’s physical or mental functioning, whether or not intended for human consumption, except with the prior approval of the probation officer.

Last Updated: March 2020

Explore the other sections of the Substance Use Testing and Substance Use Disorder Treatment Reference Guide.

¹ See Guide to Judiciary Policy, Volume 8, Part C, Chapter 6 and Volume 8, Part E, Chapter 1.

² Guide to Judiciary Policy, Volume 8, Part E, Chapter 1 §150.

³ The sample language, which was endorsed by the Criminal Law Committee, is also available on the United States Courts website. See Overview of Probation and Supervised Release Conditions document, available at https://www.uscourts.gov/services-forms/overview-probation-supervised-release-conditions.