NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-12279

COMMONWEALTH vs. JULIE A. ELDRED.

Middlesex. October 2, 2017. - July 16, 2018.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & 

Kafker, JJ.

Practice, Criminal, Probation. Drug Addiction.

Complaint received and sworn to in the Concord Division of 

the District Court Department on June 13, 2016.

A proceeding on violation of probation was heard by Sabita 

Singh, J., and a question of law was reported by her.

The Supreme Judicial Court granted an application for 

direct appellate review.

Lisa M. Newman-Polk (Benjamin H. Keehn, Committee for 

Public Counsel Services, also present) for the defendant.

Maria Granik, Assistant Attorney General, for the 

Commonwealth.

The following submitted briefs for amici curiae:

Amy M. Belger for Massachusetts Medical Society & others.

Martha M. Coakley & Rachel C. Hutchinson for National 

Association of Drug Court Professionals.

Steven Fitzgerald, pro se.

Matthew R. Segal & Adriana Lafaille for American Civil 

Liberties Union of Massachusetts, Inc., & others.
2

LOWY, J. Following a probation violation hearing, a judge 

in the District Court found that the defendant, Julie A. Eldred,1

had tested positive for fentanyl, in violation of a condition of 

her probation requiring her to abstain from using illegal drugs. 

The judge ordered that the conditions of her probation be 

modified to require her to submit to inpatient treatment for 

drug addiction. The defendant appeals from that finding and 

disposition. The judge also reported a question drafted by the 

defendant concerning whether the imposition of a "drug free" 

condition of probation, such as appeared in the original terms 

of defendant's probation, is permissible for an individual who 

is addicted to drugs and whether that person can be subject to 

probation violation proceedings for subsequently testing 

positive for illegal drugs.

We conclude that, in appropriate circumstances, a judge may 

order a defendant who is addicted to drugs to remain drug free 

as a condition of probation, and that a defendant may be found 

to be in violation of his or her probation by subsequently 

testing positive for an illegal drug.2 Accordingly, we affirm 

 

1 We refer to Julie Eldred as the defendant, rather than the 

probationer, for purposes of consistency and clarity.

2 We acknowledge the amicus briefs submitted by the American 

Civil Liberties Union of Massachusetts, Inc., Center for Public 

Representation, and Prisoners' Legal Services; Massachusetts 

Medical Society, American Academy of Addiction Psychiatry, 

Association for Behavioral Healthcare, Grayken Center for 
3

the finding that the defendant violated her probation and the 

order requiring her to submit to inpatient treatment for her 

addiction.

Background and prior proceedings. On July 18, 2016, the 

defendant was arraigned on a felony charge of larceny for

stealing jewelry valued over $250 from the home of an individual 

for whom the defendant provided dog-walking services. The 

defendant admitted to the police that she had stolen the jewelry 

and had sold it to obtain money to support her heroin addiction. 

On August 22, 2016, the defendant admitted to sufficient facts 

to warrant a finding of guilt. A judge in the District Court 

continued the defendant's case without a finding, and imposed a 

one-year term of probation with special conditions related to 

her substance abuse that included requiring her to remain drug

free, submit to random drug screens, and attend outpatient 

substance abuse treatment three times each week.3 Prior to 

accepting the terms of her probation, the defendant did not 

object to the condition that she remain drug free, or otherwise 

 

Addiction Medicine at Boston Medical Center, Massachusetts 

Organization for Addiction Recovery, Massachusetts Society for

Addiction Medicine, Northeastern University School of Law's 

Center for Health Policy and Law, and twenty-eight others; 

Steven Fitzgerald; and the National Association of Drug Court 

Professionals.

3 The special condition of probation requiring the defendant 

to remain drug free was announced in open court, and was 

included in the written probation agreement, which the defendant 

signed.
4

express that her diagnosis of substance use disorder (SUD) 

rendered her incapable of remaining drug free.

On August 29, 2016, the defendant began outpatient 

addiction treatment at a hospital. As a component of her 

treatment, an addiction specialist prescribed the defendant a 

medication that is used to treat symptoms of withdrawal and 

addiction to opiates.

On September 2, 2016, only eleven days after the case had 

been continued without a finding and the probation had been 

imposed, the defendant tested positive for fentanyl, following a 

random drug test administered by her probation officer. The

probation officer encouraged the defendant to enter inpatient 

treatment, but the defendant allegedly refused. The probation 

officer then filed a "Notice of Probation Detention Hearing"4

with the District Court. The detention hearing was conducted on 

the same day as the defendant's positive drug test because, as 

her probation officer testified, the defendant's parents were 

out of town and "it was the Friday before Labor Day and [the 

probation officer] felt that [the probation officer] couldn't 

 

4 According to Rule 5(a) of the District/Municipal Court 

Rules for Probation Violation Proceedings (LexisNexis 2016), a 

probation detention hearing "may be conducted to determine 

whether a probationer shall be held in custody pending the 

conduct of a probation violation hearing. The issues to be 

determined at a probation detention hearing are whether probable 

cause exists to believe that the probationer has violated a 

condition of the probation order, and, if so, whether the 

probationer should be held in custody."
5

have [the defendant] leave [the probation officer's] office 

testing positive for Fentanyl."

Based on the evidence presented at the hearing, the judge,

who was the same judge who had accepted the defendant's plea and 

imposed the conditions of probation, determined that there was 

probable cause to believe the defendant had violated the "drug

free" condition of her probation by using fentanyl. Because 

defense counsel was not able to secure a placement for the 

defendant at an inpatient treatment facility, the judge ordered 

that the defendant be held in custody until a placement became 

available. The defendant was released into an inpatient 

treatment facility after ten days in custody.

On November 22, 2016, a different District Court judge

presided over the defendant's probation violation hearing. 

Despite conceding that she had used fentanyl, the defendant 

contested that she had violated the terms of her probation. The 

defendant argued, for the first time, that she had been 

diagnosed with SUD, which rendered her incapable of remaining

drug free. In the defendant's view, her use of drugs could not 

constitute a wilful violation of her probationary condition to 

remain drug free. She submitted several affidavits from experts 

in support of her claim; however, no expert testimony was 

offered at the hearing to opine on SUD or its potential effects 

on the brain.
6

The judge determined that the defendant had violated the 

drug free condition of her probation by testing positive for 

fentanyl. The defendant filed a motion to vacate the condition 

of probation requiring her to stay drug free, arguing that the 

condition violated various State and Federal constitutional 

rights. That motion was denied. The judge then modified the 

conditions of the defendant's probation by adding the condition 

that she continue inpatient treatment. The judge also allowed 

the defendant's motion to report to the Appeals Court the 

question concerning the imposition of the condition of probation 

that the defendant remain drug free. We granted the defendant's 

motion for direct appellate review.5

Discussion. 1. The reported question. The judge sought

to report the question to the Appeals Court under Mass. R. Crim. 

P. 34, as amended, 442 Mass. 1501 (2004). It is doubtful she 

had the authority to do so. Rule 34, like the Rules of Criminal 

Procedure generally, applies only in criminal cases. The matter 

before the judge -- a probation violation hearing -- was not a 

criminal matter. See Commonwealth v. Patton, 458 Mass. 119, 

124-125, 129 (2010). Moreover, the reported question, as it was 

 

5 After we granted the defendant's motion for direct 

appellate review of the question reported to the Appeals Court, 

the defendant separately appealed from the decision that the 

defendant was in violation of probation. We transferred that 

appeal to this court on our own motion and consolidated the two 

matters.
7

originally formulated, contains a factual conclusion about the 

science of addiction that was not resolved at the trial court

level. See Commonwealth v. Duncan, 467 Mass. 746, 753 n.7, 

cert. denied, 135 S. Ct. 224 (2014) ("We answer only the 

reported question of law, not the question of fact"); 

Commonwealth v. Yacobian, 393 Mass. 1005, 1005-1006 (1984) 

(declining to rule on questions of law predicated on unresolved 

factual issues).6 Nevertheless, this question presents issues of 

significant magnitude that require resolution, especially where

they have been fully briefed and at least one issue appears to 

be moot. We therefore employ our general superintendence power 

to address the matter. See Cobb v. Cobb, 406 Mass. 21, 24 n.2 

(1989). See also Commonwealth v. Doe, 420 Mass. 142, 145-146

(1995), overruled on another ground by Commonwealth v. Pon, 469 

Mass. 296 (2014). But first, in order to make the question one 

 

6 In its original form, the reported question presumes that 

there is a scientific consensus concerning SUD's impact on the 

brain, particularly how it affects an individual's ability to 

abstain from using drugs. Embedded within the question, which 

was drafted and submitted by the defendant, is the conclusion 

that this scientific issue was resolved in the defendant's 

favor. This issue, however, was not subject to adversarial 

scrutiny, let alone resolved. This is elucidated by the fact 

that the parties and amici present varying models of addiction

and varying conclusions concerning the science of addiction. 

For example, the defendant advances a model of addiction where 

addiction is understood as a brain disease that deprives an 

individual of his or her free will to abstain from using drugs. 

In contrast, the Commonwealth advances a behavioral model of 

addiction which postulates that SUD may affect an individual's 

urge to use substances, but it does not render that individual 

without the free will to use substances.
8

that can be answered on the record before us, we reformulate the

reported question as follows:

"Where a person who committed a crime is addicted to 

illegal drugs, may a judge require that person to 

abstain from using illegal drugs as a condition of 

probation? If that person violates the 'drug free' 

condition by using illegal drugs while on probation, 

can that person be subject to probation revocation 

proceedings? Additionally, at a detention hearing, if 

there is probable cause to believe that a person with 

a 'drug free' condition of probation has violated that 

condition by using an illegal drug, may that person be 

held in custody while awaiting admission into an 

inpatient treatment facility, pending a probation 

violation hearing?"

As explained infra, given relevant statutes, and court 

rules and policies, coupled with the goals of probation, we

answer each portion of the reformulated question in the 

affirmative.

The circumstances of the defendant's case exemplifies why 

the imposition of a drug free condition of probation and the 

enforcement of such a condition are permissible within the 

confines of the probation process. From crafting special 

conditions of probation to determining the appropriate 

disposition for a defendant who has violated one of those 

conditions, judges should act with flexibility, sensitivity, and 

compassion when dealing with people who suffer from drug 

addiction. The rehabilitative goals of probation, coupled with 

the judge's dispositional flexibility at each stage of the 

process, enable and require judges to consider the unique 
9

circumstances facing each person they encounter -- including 

whether that person suffers from drug addiction. This 

individualized approach to probation fosters an environment that 

enables and encourages recovery, while recognizing that relapse 

is part of recovery.

2. Probation. a. Disposition. As an alternative or 

supplement to incarceration, probation is "a legal disposition 

which allows a criminal offender to remain in the community 

subject to certain conditions and under the supervision of the 

court." Commonwealth v. Durling, 407 Mass. 108, 111 (1990). 

The primary goals of probation are twofold: rehabilitation of 

the defendant and protection of the public from the defendant's 

potential recidivism. Commonwealth v. Goodwin, 458 Mass. 11, 15

(2010). Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001) 

(other goals include "punishment, deterrence, and retribution"

[citation omitted]).

"The success of probation as a correctional tool depends on 

judges having the flexibility at sentencing to tailor probation 

conditions to the circumstances of the individual defendant and 

the crime that he [or she] committed." Goodwin, 458 Mass. at 

16. See Lapointe, 435 Mass. at 459 (judge may consider factors 

not relevant at trial, such as hearsay information about 

defendant's character, behavior, and background). Authority to 

tailor probation conditions is found in G. L. c. 276, § 87, 
10

which states that a judge may impose "such conditions as [the 

judge] deems proper." See Boston Municipal Court and District 

Court Sentencing Best Practice Principles 5. See also Criminal 

Sentencing in the Superior Court: Best Practices for 

Individualized Evidence-Based Sentencing 8 ("Special conditions 

of probation should be narrowly tailored to the criminogenic 

needs of the defendant/probationer while providing for the 

protection of the public and any victim").

Where, as here, addiction is an underlying issue in a 

criminal case, the special conditions "may include, but shall 

not be limited to, participation by [the defendant] in 

rehabilitative programs." G. L. c. 276, § 87A. Indeed, in 

1998, this court, in collaboration with the Trial Court, issued

standards on substance abuse. See Supreme Judicial Court 

Standing Committee on Substance Abuse, Standards on Substance 

Abuse (April 28, 1998) (Substance Abuse Standards). They

established a "systemwide policy designed to enhance the 

judiciary's response to the impact of substance abuse on [our] 

courts." Id. at 4. The standards created a framework that 

would "promote public safety, provide access to treatment, 

protect due process, reduce recidivism, [and] ensure offender 

accountability" (emphasis added). Id. at 5. One of the 

standards addressed directly the issue of requiring a defendant 

to remain drug free, stating, "[O]nce [a] judge has concluded 
11

that a party's substance abuse is a factor in the case, in 

supervising criminal . . . cases and in establishing court 

ordered substance abuse conditions, the judge should 

specifically and unambiguously prohibit the party from all use 

of alcohol an illicit drugs" (emphasis added). Id. at 27. The 

standards also recognize that relapse is a "common" problem and 

judges "should . . . employ strategies consistent with public 

safety to prevent it" (emphasis added). Id. at 3.

For these reasons, judges have great latitude in imposing 

conditions of probation, and those conditions are enforceable 

"so long as the condition is 'reasonably related' to the goals 

of sentencing and probation." Commonwealth v. Obi, 475 Mass. 

541, 547 (2016), quoting Lapointe, 435 Mass. at 459. Even where 

a condition of probation affects a constitutional right, it is 

valid if it is "reasonably related" to the goals of sentencing 

and probation, in light of the defendant's underlying crime and

her particular circumstances. See Commonwealth v. Power, 420 

Mass. 410, 416-417 (1995), cert. denied, 516 U.S. 1042 (1996);

Lapointe, supra. Although random drug and alcohol testing 

constitutes a search and seizure for constitutional purposes 

under art. 14 of the Massachusetts Declaration of Rights, such 

testing is nonetheless a permissible condition of probation so 

long as it is reasonably related to legitimate probationary 

goals. Commonwealth v. Gomes, 73 Mass. App. Ct. 857, 859 
12

(2009). See Commonwealth v. Williams, 60 Mass. App. Ct. 331, 

332-333 (2004) (alcohol-free condition of probation permissible 

when reasonably related to characteristics of defendant and 

underlying crime). See also Robinson v. California, 370 U.S. 

660, 664,665 (1962) ("There can be no question of the authority 

of the State . . . to regulate the . . . use of . . . drugs 

[through, inter alia] a program of compulsory treatment for 

those addicted to narcotics[,] . . . [even requiring] 

involuntary confinement [and] penal sanctions for failure to 

comply with established compulsory treatment procedures"

[quotations and citation omitted]).

When a defendant is released on probation, his or her 

liberty interest is conditional and depends on that defendant's 

compliance with the conditions imposed by the sentencing judge. 

Commonwealth v. Wilcox, 446 Mass. 61, 64 (2006); Durling, 407 

Mass. at 115. "If a defendant violates one or more conditions 

of probation, a judge may revoke his probation and sentence him 

to a term of imprisonment for his underlying conviction, or 

return the defendant to probation, with new or revised 

conditions." Goodwin, 458 Mass. at 15. A defendant who 

violates probation is not being punished for violating a 

condition of probation, but rather "the defendant is essentially 

being sentenced anew on his [or her] underlying conviction." 

Id. at 17.
13

Here, the defendant pleaded guilty to larceny and admitted

that her drug use motivated her to commit the crime. The 

sentencing judge imposed the special conditions that the 

defendant remain drug free, continue outpatient drug treatment, 

and submit to random drug screens. The conditions directly 

addressed the defendant's personal circumstances and,

significantly, her stated motivation for committing the crime --

purchasing illegal drugs. See Goodwin, 458 Mass. at 16. Not 

only were these conditions tailored to the characteristics of 

the defendant and the underlying crime, they furthered the 

rehabilitative goal of probation by facilitating treatment for 

the defendant's drug addiction. These conditions also furthered 

the goal of protecting the public, because each condition

addressed the fact that the defendant's drug use motivated her 

to commit the crime. We note that the defendant does not claim 

or point to anything in the record that shows that, before 

agreeing to her probationary conditions, she objected, informed

the judge that she had been diagnosed with SUD, or otherwise 

notified the judge that she would be unable to abide by the drug

free condition of probation. See Commonwealth v. Vargas, 475 

Mass. 86, 93 (2016) (by agreeing to abide by probationary 

condition of no marijuana use, defendant agreed to be subject to 

probation revocation for noncompliance). See also Obi, 475 
14

Mass. at 549 (defendant waived challenge to probationary 

condition that was not raised at sentencing).

The defendant argues that because she suffers from SUD,

requiring her to remain drug free sets her up for 

unconstitutional cruel and unusual punishment when the 

inevitable relapse occurs. As discussed, revoking or modifying 

conditions of probation is not a punishment for drug use but for 

the underlying crime. See Goodwin, 458 Mass. at 17. We also 

agree with the Commonwealth that the defendant's claim of SUD 

rests on science that was not tested below. Nor do we agree with 

the defendant that the requirement of remaining drug free is an 

outdated moral judgment about an individual's addiction. 

Rather, informed by the substance abuse standards discussed 

supra, the requirement is based on the judge's consideration of 

the defendant's circumstances and that she committed the 

underlying crime to support her drug use.

The judge here did not abuse her discretion by imposing 

the special condition of probation requiring the defendant to 

remain drug free.

b. Probation violation proceedings. i. Detention 

hearing. Where there is reason to believe that a defendant 

violated a condition of probation, a probation officer may

initiate probation violation proceedings. See Rule 4(b) of the 

District/Municipal Court Rules for Probation Violation 
15

Proceedings (LexisNexis 2016) ("Violation proceedings shall be 

commenced by the issuance by the Probation Department of a 

Notice of Probation Violation and Hearing"). A detention 

hearing is conducted where the probation department seeks to 

have a defendant held in custody for some period of time pending 

a final probation violation hearing. See Rule 5(a) of the 

District/Municipal Court Rules for Probation Violation 

Proceedings. The issues to be decided at the detention hearing 

are "whether probable cause exists to believe that the 

probationer has violated a condition of the probation order, 

and, if so, whether the probationer should be held in custody." 

Id. (question of revocation or other disposition not at issue). 

See Commonwealth v. Puleio, 433 Mass. 39, 41 (2000) (defendant 

may be held in custody pending completion of final probation 

violation hearing).

Where the judge determines that the allegation is supported 

by probable cause, the judge must then consider a number of 

factors in determining whether the defendant should be held in 

custody pending the final probation violation hearing:

"(i) the probationer's criminal record; (ii) the nature 

of the offense for which the probationer is on probation; 

(iii) the nature of the offense or offenses with which 

the probationer is newly charged, if any; (iv) the nature 

of any other pending alleged probation violations; (v) 

the likelihood of [the] probationer's appearance at the 

probation violation hearing if not held in custody; and 

(vi) the likelihood of incarceration if a violation is 

found following the probation violation hearing."
16

See Rule 5(c) of the District/Municipal Court Rules for 

Probation Violation Proceedings. Much like the judge's 

individualized analysis of the defendant's circumstances in 

setting the terms of probation, a judge at this stage must 

consider the particular circumstances facing a defendant, as 

well as the safety of the public.

Trial court judges, particularly judges in the drug courts, 

stand on the front lines of the opioid epidemic. Judges face 

unresolved and constantly changing societal issues with little 

notice and, in many situations, without the benefit of 

precedential guidance. In circumstances where a defendant is 

likely addicted to drugs and the violation in question arises 

out of the defendant's relapse, judges are faced with difficult 

decisions that are especially unpalatable. This is particularly 

true at a detention hearing where a judge must decide whether 

the defendant should be detained prior to a final violation 

hearing. The core of this dilemma is that although probation 

violations often arise out of a defendant's relapse, we 

recognize that relapse is part of recovery. See Standards on 

Substance Abuse, supra at 5 ("Treatment does not always work the 

first or even the second time, [and] relapse should not be cause 

for giving up on a substance abuser"). To achieve this delicate 

balance, judges must have the authority to detain a defendant 
17

facing a probation violation based on illicit drug use pending a 

final violation hearing for the safety of the defendant and the 

community. See Rule 5 of the District/Municipal Court Rules for 

Probation Violation Proceedings. Such decisions should be made 

thoughtfully and carefully, recognizing that addiction is a 

status that may not be criminalized. See Robinson v. 

California, 370 U.S. 660, 666 (1962) (unconstitutional to 

criminalize status of addiction). But judges cannot ignore the 

fact that relapse is dangerous for the person who may be in the 

throes of addiction and, often times, for the community in which 

that person lives.

Here, on the Friday before the Labor Day weekend, the 

defendant tested positive for fentanyl. After the defendant 

rejected inpatient treatment, and with her home support network 

unavailable, the defendant's probation officer initiated the 

probation violation proceedings and moved for a detention 

hearing that day. At that hearing, the judge determined that 

there was probable cause to believe the defendant had violated 

the drug free condition of her probation, based on the results 

of the drug test. The judge first sought to have the defendant 

admitted to an inpatient treatment facility pending her final 

violation hearing; however, a placement was not immediately 

available. To stabilize the defendant's situation, the judge 

held her in custody until a placement at an inpatient treatment 
18

facility became available. This decision clearly encompassed 

the factors enumerated in Rule 5(c) of the District/Municipal 

Court Rules for Probation Violation Proceedings, particularly 

the nature of the offense for which the defendant was on 

probation and the nature of the alleged violation, while 

furthering the overarching goal of preserving the safety of the 

public and welfare of the defendant. The judge was faced with 

either releasing the defendant and risking that she would suffer 

an overdose and die, or holding her in custody until a placement 

at an inpatient treatment facility became available.

The defendant claims that the judge's decision to detain 

her constituted a punishment for her relapse and positive drug 

test.7 We do not agree.

 

7 We note that neither the limited facts in this case nor 

the law of the Commonwealth supports the defendant's assertions 

that addiction has been criminalized or that relapse is being 

punished. The case before the court is unlike Robinson v. 

California, 370 U.S. 660, 665-668 (1962), where the United 

States Supreme Court concluded that a statute criminalizing the 

status of being "addicted to the use of narcotics" was 

unconstitutional. The Court in Robinson emphasized that the 

unconstitutional statute at issue did not criminalize the use of 

narcotics, but rather the status of being addicted to narcotics. 

Id. at 666. In contrast, here the defendant was subject to 

probation revocation proceedings due to her use of an illegal 

drug. Robinson is inapposite to our analysis because this case 

represents an appropriate exercise of judicial power at each 

stage of the probation proceedings, not the criminalization of 

the defendant's status. Id. at 665 (reciting actions State may 

take to regulate narcotic drugs including involuntary 

confinement for compulsory treatment and penal sanctions for 

failure to comply with treatment).
19

Revocation proceedings are not part of a criminal 

prosecution. See Durling 407 Mass. at 112, citing Gagnon v. 

Scarpelli, 411 U.S. 778, 782 (1973). The decision to hold the 

defendant in custody is akin to a bail decision, and no final 

determination has been made concerning whether she violated a 

condition of probation. See Rule 5 of the District/Municipal 

Court Rules for Probation Violation Proceedings. See also

Commonwealth v. Odoardi, 397 Mass. 28, 30 (1986) (disposition of 

probation does not punish act prompting probation violation 

proceedings, and arises from "underlying offense for which a 

probationary sentence originally was imposed"). Moreover, here 

the judge detained the defendant because a placement at an 

inpatient treatment center was not available. Although we 

recognize that the number of inpatient treatment placements is 

limited, the resolution of that problem concerns public policy 

and cannot be addressed by a judge. Detaining a defendant may 

be permissible to protect the public and the defendant. See 

Robinson, 370 U.S. at 667 (imprisoning person afflicted with 

addiction is cruel and unusual punishment only where person 

"never touched any narcotic drug within the State or been guilty 

of any irregular behavior there"). The judge did not abuse her 

discretion in detaining the defendant pending a probation 

violation hearing.
20

ii. Probation violation hearing. Following an initial 

determination at a detention hearing that there is probable 

cause to believe that a condition of probation was violated, a 

defendant is entitled to a final probation violation hearing to 

determine whether a violation occurred, and, if so, what effect 

the violation will have on his or her status. See Rule 6 of the 

District/Municipal Court Rules for Probation Violation 

Proceedings.

The probation violation hearing is comprised of two 

distinct phases: (1) the adjudicatory phase, and (2) the 

dispositional phase. See Rule 6(b) of the District/Municipal 

Court Rules for Probation Violation Proceedings. See also 

Commonwealth v. Joyner, 467 Mass. 176, 189-191 (2014). In the 

adjudicatory phase the judge must "determine, as a factual 

matter, whether the defendant has violated the conditions of his 

[or her] probation." Commonwealth v. Pena, 462 Mass. 183, 187 

(2012), quoting Durling, 407 Mass. at 111. "A defendant can be 

found in violation of a probationary condition only where the 

violation was wilful." Commonwealth v. Henry, 475 Mass. 117, 

121-122 (2016). See Commonwealth v. Canadyan, 458 Mass. 574, 

579 (2010) (absent evidence of wilful noncompliance, defendant 

could not be found in violation of condition of probation). See 

also Commonwealth v. Poirier, 458 Mass. 1014, 1016 (2010) 

(defendant not responsible for inability to comply with 
21

condition where probation department failed to provide needed 

equipment). Further, a violation of a probationary condition 

must be proved by a preponderance of the evidence. See

Commonwealth v. Holmgren, 421 Mass. 224, 227 (1995). See also 

Rule 6(c) of the District/Municipal Court Rules for Probation 

Violation Proceedings.

At a probation violation hearing, both parties "shall be 

permitted to present evidence relevant to the issue of the 

alleged violation [and] shall be permitted to cross-examine 

witnesses produced by the opposing party." Id. The distinction 

between the adjudicatory and dispositional phases is important

because the "factual decision that a probation violation has 

occurred in no way compels an order of revocation." Rule 5 of 

the District/Municipal Court Rules for Probation Violation 

Proceedings comment (2000), at 80. Therefore, judges must be 

precise in bifurcating the adjudicatory phase of probation 

violation proceedings from the dispositional phase.

Where a violation has occurred, the judge must determine 

the appropriate disposition for the defendant. See Pena, 462 

Mass. at 187. See also Rule 6(b) and (d) of the 

District/Municipal Court Rules for Probation Violation 

Proceedings. Permissible dispositions include revoking the 

defendant's probation and sentencing the defendant for the 

underlying crime, modifying the terms of the defendant's 
22

probation, or reprobating the defendant on the same conditions 

of probation. Rules 8(d), 9(b) of the District/Municipal Court 

Rules for Probation Violation Proceedings. See Pena, supra.8 

The defendant, in either scenario, is not being punished for 

violating the probationary condition that triggered the 

revocation or modification, but rather for the original 

conviction See Odoardi, 397 Mass at 30. See also Commonwealth

v. Cory, 454 Mass. 559, 564 (2009) (penalties for probation 

revocation attributed to original conviction, not to probation 

violation). In other words, when a defendant's probation is 

revoked because he or she has "abused the opportunity given him 

to avoid incarceration," Rubera v. Commonwealth, 371 Mass. 177, 

181 (1976), by violating a condition of probation, the defendant 

is imprisoned not for the act or acts that prompted revocation 

of probation, but rather, the defendant "is being punished for 

the underlying offense for which a probationary sentence 

originally was imposed." Odoardi, supra.

After a violation is found, "[h]ow best to deal with the 

probationer is within the judge's discretion." Durling, 407 

Mass. at 111. In determining the appropriate disposition, the 

 

8 A house of correction sentence may also be suspended. A 

suspended sentence, however, limits the judge's options should 

there be a violation of probation after a suspended sentence has 

been imposed, because, under Commonwealth v. Holmgren, 421 Mass. 

224, 228 (1995), "when probation is revoked, the original 

suspended sentence must be imposed."
23

court shall consider "such factors as public safety; the 

circumstances of any crime for which the probationer was placed 

on probation; the nature of the probation violation; the 

occurrence of any previous violations; and the impact of the 

underlying crime on any person or community, as well as 

mitigating factors." Rule 8(d) of the District/Municipal Court 

Rules for Probation Violation Proceedings. The defendant is 

entitled to show that there was a "justifiable excuse for any 

violation or that revocation is not the appropriate 

disposition." Pena, 462 Mass. at 188, quoting Black v. Romano,

471 U.S. 606, 611, 612 (1985). See United States v. Morin, 889 

F.2d 328, 332 (1st Cir. 1989) (during second stage of probation 

revocation proceeding, defendant "has the right to address the 

court and present it with mitigating circumstances").

"Where a defendant has violated a condition of his [or her] 

probation, a judge's authority to modify or add conditions of 

probation is nearly unlimited should the judge decide not to 

imprison the defendant but to return him [or her] to probation." 

Goodwin, 458 Mass. at 17. At the dispositional phase, a judge's 

decision to modify the defendant's probation following a 

violation must consider both the welfare of the defendant and 

the community. Id. at 16, quoting Buckley v. Quincy Div. of the 

Dist. Court Dep't, 395 Mass. 815, 818 (1985). Where probation 

is modified, the defendant is essentially being resentenced on 
24

his or her underlying conviction, and the judge may impose any 

conditions of probation that could have been imposed at the 

original sentencing. Goodwin, supra at 17.

The defendant contends that the District Court judge erred 

in finding that she violated the drug free condition of her 

probation because the violation was not wilful. In the 

defendant's view, her purported inability to refrain from using 

drugs is tantamount to a homeless probationer not being able to 

comply with a condition of probation because of the 

circumstances inherent in that homelessness. Canadyan, 458 

Mass. at 579. In Canadyan, we concluded that the defendant did 

not commit a wilful violation of probation for failing to wear 

an operable global positioning system (GPS) monitoring device

because the evidence conclusively established that the defendant 

was homeless and that the homeless shelter he was staying at 

could not accommodate the technological requirements of the GPS 

equipment. Id. at 578-579. Therefore, "there was no evidence 

of wilful noncompliance." Id. at 579. Accord Henry, 475 Mass. 

at 121-122 (no wilful violation of condition of probation 

requiring payment of restitution where defendant lacked ability 

to pay); Poirier, 458 Mass. at 1016 (no wilful violation of 

condition of probation requiring defendant to wear GPS device 

where probation department did not have such device available).
25

Although the appellate record before this court is 

inadequate to determine whether SUD affects the brain in such a 

way that certain individuals cannot control their drug use, 

based on the evidence presented to the judge who conducted the 

violation hearing, that judge did not abuse her discretion in 

concluding that there was a wilful violation of the defendant's 

drug free probationary condition. The affidavits submitted by 

the defendant in support of her position that her violation was 

not wilful because SUD affects the brain in such a way that 

certain individuals cannot control their drug use did not 

require the judge to accept her argument. We conclude that, 

based on the evidence presented at the violation hearing, the 

judge did not err in concluding that the defendant violated the 

drug free condition of her probation by testing positive for 

fentanyl.

After determining that the defendant violated the 

conditions of her probation, the judge had the authority either 

to revoke the defendant's probation, reprobate her on the same 

conditions, or modify her probationary conditions to further the 

welfare of both her and the public. See Goodwin, 458 Mass. at 

17. The judge chose to modify the defendant's probation, 

requiring that she continue inpatient treatment. This 

modification furthered the rehabilitative goal of probation and 

demonstrated that the judge was not discounting the defendant's 
26

addiction. The defendant does not challenge this condition on 

appeal. Furthermore, this was not punishment for the 

defendant's positive drug test, rather the defendant was being 

reprobated on her original admission to sufficient facts. See 

id. at 17. Accordingly, we conclude that the judge did not 

abuse her discretion in modifying the defendant's probation to 

require inpatient treatment and that it was permissible in these 

circumstances to detain the defendant until an inpatient bed was 

available.

Conclusion. We conclude that, based on the evidence 

presented at each stage of the probation process and for the 

reasons described above, the judge did not abuse her discretion 

in concluding the defendant violated her probation. We further 

answer the reported question, as we have reframed it, in the 

affirmative: (1) where a person who commits a crime is addicted 

to illegal drugs, a judge may require that person to remain drug 

free as a condition of probation; (2) a person may be subject to 

probation violation proceedings for violating the drug free 

condition of probation by subsequently testing positive for 

illegal drugs; and (3) in the appropriate circumstances, a judge 

has discretion at a detention hearing to hold the defendant, who 

has tested positive for illegal drugs in violation of the drug

free condition of probation, pending a probation violation 

hearing. We further conclude that the actions of the District 
27

Court judges and the probation department involved in this case 

were exemplary. They embodied the flexibility, sensitivity, and 

thoughtfulness in furtherance of the overarching goal of 

probation -- to rehabilitate rather than incarcerate whenever 

possible, while fulfilling their duty to protect the public. 

See Goodwin, 458 Mass. at 15.

Accordingly, we affirm the judge's finding that the 

defendant violated her probation and the order requiring her to 

submit to inpatient treatment for her addiction.

So ordered.