Drug Testing in the criminal justice system is currently a hot topic . My last post was on drug testing for Tennessee judges.  Last week Michigan criminal defense lawyer Scott Millard was jailed when he stood up to a judge about asking his client to take a drug test .  I learned about the show down last week from Keeley Heath who practices with Mr. Millard . Mr. Millard spend four hours in lockup defending his client. Simple Justice posted part of the transcript of the hearing right before the hammer went down.Here is the exchange :


JUDGE POST: (to the defendant) When they give you a drug test today, are you going to be clean or dirty?

MILLARD: (My client) is going to stand mute to that question, your honor.

POST:  He’s not going to stand mute. He’s either going to answer the question or I’m going to remand him to jail.

MILLARD: Your honor –

POST: You can have a seat.

MILLARD: Your honor, I’m –

POST: Sit down.

MILLARD: I’m Counsel, your honor.

POST: I’m encouraged. Both of you sit down.

MILLARD: I’m his attorney, your honor.

POST: I’m encouraged.

MILLARD: (My client) has a 5th Amendment right.

POST: Counsel, I’m setting bond. There’s two ways we can do this. I can give him 30 days from the date that he last used to be clean, or I’ll remand him to jail until such time as he’s clean and then we’ll go from there.


POST: Would you please be quiet? I really appreciate that. Thank you.

MILLARD: I apologize.

POST: (to the defendant) When was the last time that you used controlled substances? Let me have the date please.

MILLARD: Your honor, (my client) has a 5th Amendment –

POST: I’m not charging him with using controlled substance, Counsel. He’s not charged with that charge. I’m interested in getting a clean, honest bond response. Now, if you don’t want to do that, you can leave. Your call.

MILLARD: (My client) has a 6th Amendment right to assist, effective assistance of counsel.

POST: That’s right. And that’s not what he’s getting at the moment.

MILLARD: Your honor, I strongly disagree with that.

POST: I’m glad.

MILLARD: I’ve been nothing but respectful and I will always be respectful to the bench.

POST: Then would you please let him answer my questions?

MILLARD: (My client) has a 5th Amendment right not to make admissions, and, your honor, the manner in which this proceeding is being conducted, strongly has the, at least I’m getting the sense that it threatens to tread on that 5th Amendment right.

The judge and the attorney went back and forth for a bit on the 5th Amendment, the court’s ability to order drug testing and the attorney’s suggestion to set a date for his client to take a drug test. Then —

POST:  I’m not interested in what you think. Haven’t you gotten that yet?

MILLARD: I have gotten that, and I… understand that, and your honor, the court fully, certainly has the right to not care what I say. How —

POST: Thank you. Then be quiet. … (Then, to the defendant) When was the last time that you, the date that you last used controlled substances, sir?

Millard interrupted and stopped his client from answering.

POST: One more word, and I’m going to hold you in contempt 

 When  I read the first post of Mr. Millard predicament up to the judge , I was proud that a criminal defense lawyer would stand up to the judge ordering a drug test on someone.Tennessee State Legislators spoke about requiring judges to take them in Tennessee . Now , the wholesale practice of the use of drug tests are startling. Now , once one is on probation your constitutional rights are limited. Taking a drug test before a sentencing hearing to help make your case for probation is fine by me. Other than that " Just say no to drug testing". Stand up for justice and the rule of law. Way to go Scott.