Can I Go to Rehab Instead of Jail in Arkansas?

Can I go to rehab instead of jail is one of the most common questions we hear from people facing drug possession, DWI, theft, and felony charges in Washington and Benton Counties. The answer is more complicated than yes or no.

Here is the short version. In Arkansas, treatment does not cancel a criminal case, and no program can promise that you stay out of custody. What treatment can do is change the options your attorney has to work with, change what a prosecutor is willing to consider, and in the right case open a door to a specialty court program instead of a jail sentence.

Timing matters. Documentation matters. Telling your lawyer before you go matters more than most people expect.

The questions below come from conversations our attorneys have with clients every week in Springdale, Rogers, Bentonville, and Fayetteville. They cover how Northwest Arkansas judges tend to respond to treatment, what paperwork to keep, what happens to your court date, what to do when a warrant has already been issued, and where treatment courts fit in.

Q: Can I go to Rehab instead of going to Jail?

A: In Arkansas, going to rehab does not automatically keep you out of jail. But voluntarily getting into appropriate substance-use treatment can sometimes help your attorney negotiate less jail, suspended jail time, a treatment-based resolution, or admission into a specialty court program. The result depends on your charge, history, prosecutor, which Northwest Arkansas judge you have, treatment needs, and what you do while your case is pending.

First, this might contain a couple different questions, such as: - Can rehab keep me from being sentenced to jail? - Can I go to rehab instead of sitting in jail while my case is pending? - Can I go to rehab even if that means I will miss a court date? Unfortunately, going to rehab does not automatically mean that you can't go to jail. I wish that were the case. I wish I could tell every single one of my clients with substance use issues, "Just go to rehab and you won't have to deal with the criminal consequences," but that isn't the case. But there are ways to strategically limit any type of jail time and make it so you can handle your case while still meeting your responsibilities for your job or family.

Rehab can definitely give you a leg up on all the things that you need to do to show the prosecutor that you are serious about getting into recovery and out of the circumstances that caused you to come into contact with law enforcement in the first place. Also, going to rehab might actually keep you out of jail. Going to a private treatment program does not automatically count as serving jail time or receiving jail credit. Getting a head start in recovery and getting into rehab may allow a prosecutor to consider an alternative to jail time, such as community service, continuing in a treatment program, or suspending jail time all together since you started getting treatment. It just depends on the prosecutor that is assigned to your case and the judge. To get the best chance of serving some type of alternative to jail, it's important to hire an experienced criminal defense attorney who is knowledgeable about substance use, recovery, and addiction.

Q: Will a Judge care whether I go to rehab?

A: Many Northwest Arkansas judges appreciate people who take responsibility and get into rehab. Many of them have allowed our clients who have been otherwise ordered to appear for a court date to either appear by video from rehab, or the attorney can waive their appearance to give them a chance to complete a program. However, if you don't hire an attorney who's experienced in handling this issue, and if you miss your court date, you might end up with a warrant. Even if you were in rehab, if the court doesn't know that, they might still issue a warrant for your arrest that you’ll need to clear.

Many people think that getting treatment or getting into some kind of rehab or sober living facility is going to look like some kind of admission of guilt, but in our experiences, that's not the case. The judge has a lot of information on the charge before you even step foot into a courtroom. Sometimes the judge will have read the probable cause affidavit and have an idea of what this case is about. Sometimes the judge will just see the criminal information that's been filed and know that you've been charged with something probably related to substances.

It's much more important that you do what you need to do for your life and use that with your attorney's help to strategize on your case than it is to try to convince the judge that there are no substance use issues.  

Q: If I decide to get into rehab, what else do I need to do if I have criminal charges?

A: Here's what you need to do. If you are considering getting into rehab or some type of program where going would mean you miss your court date, you need to hire an attorney local to Northwest Arkansas and experienced in speaking to the judge about these types of things. You need to document your admission and get a letter or some type of paperwork showing your expected admission date and your anticipated discharge date.

If you do decide to get into a treatment program, here is what you need to keep documentation of to assist in your defense:

• Copy of your Substance Use Assessment and the Recommendation- this shows you have received an evaluation from a professional provider and are following clinically recommended steps;

• Admission paperwork or verification of receiving services- this shows the prosecutor where you are receiving services and verifies it is a credible and reputable provider;

• Dates of treatment or services attended;

• Attendance records and letters indicating a treatment plan;

• Proof of compliance with recommended treatment or plans;

• Results of any drug tests administered- keep proof of every record, favorable or not, and let your attorney decide what should be used as part of your defense strategy;

• Proof of progress towards goals;

• Discharge paperwork, graduation certificates, or proof of program completion;

• Aftercare recommendations, proof of support group attendance, or documentation of receiving peer support services.

  
  

But what you do with them is just as important as keeping copies of them. Give these records to your attorney first rather than sending treatment records directly to the prosecutor, court, or probation office unless your attorney advises you to do so.

Before you go, let your attorney know and let your attorney decide whether the appearance can be waived, whether the case can be continued, whether we can get you to appear remotely, or otherwise make arrangements so that being at rehab instead of your court date does not result in you getting a bench warrant. Here's something else you need to know. Getting into rehab is not a way to get away from a warrant that is already issued. Even if you go to a rehab facility, the police can still come arrest you on an outstanding warrant.

Q: If I go to rehab, will I miss my Court date?

A: Something else you need to know is that choosing to get treatment does not always mean that you will not be available for your court date. There are other options than just residential inpatient facilities. So, if you don't go into an inpatient facility, there are lots of things you can do through outpatient services that allow you to keep your job, keep your house or apartment, and continue to provide for your family (all while still getting services that you need to show that you are addressing any kind of underlying issue.

Many people think rehab means going away for a long time in a facility where you are locked down and unable to leave. This is not always the case. There are all kinds of treatment options, including:

• Medically supervised detox

• Residential inpatient programs

• Intensive outpatient programs

• Medication treatment when medically appropriate

• Peer support or group participation

Q: If I go to rehab, will it look better for my case?

Sometimes clients approach us and ask, "Should I get into rehab or an inpatient facility because it'll look better in court?" The answer is no, you should not consider treatment because it will look better for you in court. You should pursue the right kind of treatment so that you can face the challenges you currently have head on and work towards recovery. You should get assessed, you should follow the recommendation, and you should comply genuinely with a treatment plan that fits the problem that you are facing because it's what you need for your life and, sometimes more importantly, what your family needs from you.

There’s an important distinction in hiring a firm that understands treatment needs and just hiring a firm that handles general matters or general criminal cases. We work to get you in touch with the network of providers we trust through years of building relationships to pursue a treatment professional who can assess which level of treatment is appropriate. When our attorneys were prosecutors, we could tell people that were serious about their recovery and people that were just doing something because they wanted it to look good for the judge. Don't check yourself into a 30-day inpatient program just because you think 30 days sounds better to a prosecutor. Let’s help you get assessed by the right providers and figure out what level of treatment you actually need.

Q: I have had prior arrests, will that matter to the Prosecutor if I keep struggling with substances?

Criminal prosecutors are lawyers, not addiction-treatment professionals. Some prosecutors have substantial experience working with treatment courts and substance-use cases, while others do not. Part of our job in the right case is to give the prosecutor enough information to understand not only what the client has done wrong, but what has changed and why the proposed treatment plan reduces the likelihood that the same thing happens again.

It's not always the case that going to rehab is going to eliminate jail time from your case completely. If you have a possession charge and it looks like the only crime that was committed was something that could hurt you, prosecutors are more likely to give deference to someone who is addressing substance use and getting into rehab. However, if a crime committed is against another person, like some type of violent crime, or if it's a theft or some type of crime involving property, then there are other considerations as well. That's where having someone who used to prosecute cases, like the attorneys at our office, structure a strategy that handles addressing all of the things that prosecutors care about to give you the best chance of walking out of a criminal case without jail time. I feel like it's my job to educate prosecutors on this type of thing. Some are receptive and some are not. To give you the best chance, if you are struggling with a substance use disorder, that's why it's important to hire an attorney who understands these things and spends hours every year in training to keep up with current research and how it affects criminal cases.

I’ve heard some prosecutors say that because someone had been given a chance at probation in the past or had been given a break prior to a new arrest that they should be punished on a second offense. That's not how substance use disorders work and sometimes it takes several instances before someone is able to finally get into a recovery plan that works for them. Our attorneys have represented plenty of people who had been given chance after chance before and did not succeed the first time or even the first several times. That does not mean treatment is not effective or is not worth trying. Substance use disorders simply do not work that way and the science behind substance use backs this up. SAMHSA (the Substance Abuse and Mental Health Services Administration) notes that substance use disorders are conditions with risks of recurrence, and specifically know that returning does not mean treatment has failed. It just means that treatment may need to continue or be adjusted. https://www.samhsa.gov/substance-use/what-is-sud

Q: I have heard about Treatment Courts or Drug Courts, should I look into those?

There's another option that sometimes people think is not available to them, whether they are in the criminal justice system for the first time or even if they've been to prison. Treatment courts in Northwest Arkansas are very effective at providing accountability and recovery services to clients who need that type of service in their lives. This is for people who want to either avoid going to jail or prison and have motivation to comply with treatment court requirements or are maybe on their last stop before a lengthy prison sentence and are given another chance at treatment options they have never been offered in the past. There's much more that goes into how treatment courts work and why they're effective and what the requirements are. If you think a treatment court is an option for you, you can check out our blog post here.

Treatment courts can be difficult to complete, but in Northwest Arkansas, they come with major benefits. Many clients can get their cases entirely dismissed and sealed. In other instances, clients have been able to seal not just the case that was transferred to drug court, but cases from their past as well.

Q: What if I already have a warrant for my arrest?

There are a couple things you need to know: Going to rehab will not make a warrant disappear and it doesn't mean that you can hide from it either. Police are authorized to arrest you at a treatment facility just as they are able to make an arrest at your home, or if they pull you over while driving if a warrant has already been issued.

If you have a warrant, there are ways that we can coordinate a turn in or voluntary surrender and determine a bond amount ahead of time and arrange for it to be posted when we turn in to minimize the amount of time in custody. There are strategies we can use to limit a jail stay that avoid someone losing their job, housing, or having no one to care for their children. The worst thing you can do is continue down this path and do nothing. If things seem overwhelming, reach out to a Rise Criminal Defense Attorney at our office today to talk about how we can get you into treatment and strategize how to keep you out of jail and give you a head start on addressing substance use.

Q: If I don’t know where to start with handling my criminal case, what do I do?

If you have criminal charges and think you need treatment, start here:

1. Speak to a Northwest Arkansas criminal-defense attorney about your pending charges, court dates, bond conditions, any warrants and discuss a plan to use rehab or other treatment options to your advantage.

2. Get a professional substance-use assessment from a local provider in Springdale, Bentonville, Rogers, or Fayetteville, even if you do not receive actual treatment services in Northwest Arkansas.

3. Follow the clinically appropriate treatment recommendation.

4. Make sure your lawyer knows where you are receiving treatment and how long the program is expected to last.

5. Keep documentation of admission, attendance, progress, completion, and aftercare recommendations.

6. Follow every bond condition and court order while you are in treatment.

7. Continue the recovery plan after discharge rather than treating rehab as something you did only for court. Look into ongoing accountability offerings or sober living facilities.  

Prosecutors and judges are going to care about more than whether you can produce a certificate saying you spent 28 days somewhere. What matters more is whether there is evidence that you are actually changing what was creating the problem.

Q: When should I start a rehab program?

If substance use is part of why you were arrested, waiting until sentencing to address it usually gives your lawyer fewer options than starting now. That does not mean checking yourself into the first rehab you find or missing court because you think treatment excuses your appearance. It means developing a treatment plan and a legal strategy at the same time. We recently helped clients facing serious felony charges that could have resulted in prison time without the right strategy in place. We were able to get involved right after their arrest and we started working on a strategy even before their arraignment.

We worked to get them into treatment facilities, documented their progress, built a legal strategy around what the client was doing to address their underlying treatment needs, and the substance use issues they were facing. Ultimately, we were able to avoid the incarceration we were concerned about at the beginning of the case and accomplish a major goal. Because our clients were proactive, they listened to our recommendations, and were willing to get engaged in services early, we were able to develop a strategy early on that accomplished many of their goals, including staying out of jail and prison. Of course, the circumstances of each case are different, and no result is guaranteed but developing a strategy early and documenting progress in the beginning of a case is the best way to use the time between an arrest and a first Court date.

If you are looking for attorneys who are educated and experienced in handling clients with substance abuse needs, reach out to us. We've been able to help lots of people stay out of jail or get out of jail and into treatment because our attorneys spend time studying substance-use disorders, treatment, recovery, and how those issues interact with criminal cases.

What to Take Away Before You Decide

Rehab does not erase a charge. It also does not create one. Treatment is neither a confession nor a way out of a criminal case, and the people who get the most benefit from it are usually the ones who were going to get treatment anyway.

A few things worth holding onto:

• Get assessed before you pick a program. The level of care should come from a professional evaluation, not from what sounds impressive to a prosecutor.

• Tell your attorney before you go, not after. Appearances can sometimes be waived, continued, or handled remotely, but only when the court knows in advance.

• Keep every record: assessments, admission paperwork, attendance, drug screens, discharge summaries, and aftercare plans.

• Give those records to your attorney first, not to the prosecutor, the court, or probation.

• A warrant does not pause while you are in treatment. It has to be dealt with directly.

• Start early. The stretch between an arrest and a first court date is the most useful time you have, and the easiest to waste.

Prosecutors and judges in Northwest Arkansas see a lot of completion certificates. What tends to carry more weight is a record showing that something actually changed. Every case is different and no result can be promised, but the version of this that works usually begins with one phone call to a defense attorney before you check in anywhere.

If you are facing charges in Washington or Benton County and think treatment is part of the answer, call Rise Criminal Defense at 479-333-1011 or request a free case review. We can talk through your charges, your court dates, any warrants, and how to build a treatment plan and a legal strategy at the same time.

About the Author

Ryan Renauro is a criminal defense attorney with Rise Criminal Defense in Springdale, Arkansas. He is a former prosecutor, city attorney, and public defender. His work in the Benton County Treatment Court included hundreds of hours of training in substance use, trauma-related services, and community resources designed to reduce recidivism. He represents clients in courts throughout Washington and Benton Counties.

This article provides general information about Arkansas criminal law and is not legal advice. Reading it does not create an attorney-client relationship. Every case turns on its own facts, and past results do not predict or guarantee the outcome of any future case.