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My son has ADD/ADHD and we had hopes he would eventually grow out of it. As his lifestlyle became difficult, it also has become expensive where he has skipped court appearances to take a test. He neglected to think of resheduling after the fact and then let go of the responsibility, causing him unbelieveable problems later. It seems to repeat itself again and again.

The courts are probably enjoying all of his huge fines. I am so afraid they need to relate to his problem this time, and he needs to also get help. Would it be a good idea to disclose his medical diagnosis of ADD to a judge in hopes of decreasing a fine he has to get hit with? He owes probably $6,000 in fines already. And this new one could be as much as another $1,000 or more.

What do you think? I wish I would have turned to this sooner. He may have not so many problems now.


Dear Deborah,

The questions you raise are criminal matters. You should consult with a local criminal lawyer in your area with respect to your specific issues. However, as a general matter, it may be helpful to understand the role that disability can potentially play in any criminal proceeding. There are essentially four ways that disability can be a factor in a criminal case.

First, if an individual is clinically and legally incompetent to understand and participate in their own defense, they may avoid going to trial, either temporarily, or if their condition is permanent, forever. This could occur when an individual is severely mentally retarded or severely mentally ill and requires a high level of expert proof. Generally, if someone is not competent to stand trial, they are ordered to receive treatment and may still be tried at some point if they regain competency. ADHD usually would not be a serious enough condition to render someone incompetent to stand trial.

Second, if a person is competent to stand trial, states have differing rules, but generally allow severe impairment, e.g., severe retardation or insanity, to be used as a defense. Depending on the state, that may lead to a number of different technical verdicts, which have the effect of avoiding the normal penalties, but generally lead to the person being hospitalized or institutionalized, typically as long as their condition persists. As with the issue of competency to stand trial, it is highly unlikely that ADHD would be accepted as a defense, such as an insanity plea.

Third, disability can be taken into account as a mitigating measure. This occurs where the person is found guilty, but evidence suggests that the person’s disability contributed to their conduct. This may, under some circumstances, lead to a less harsh sentence.

Finally, disability can be a factor in relation to what is called the disposition or sentencing stage. If it can be established that the person has the disability, that it impacted their conduct, and that they need treatment, the court may take this into account both with respect to the severity of punishment and in consideration of therapeutic options as part of or instead of incarceration.

The circumstances where disability is given serious consideration vary widely with each case, each judge and with the laws of the particular state. Unfortunately, many courts, and even many lawyers, are not very familiar with ADHD and may not see it as a serious factor in the case, even when it did have a significant impact on the individual’s conduct. Again, it is important to consult with a criminal lawyer in your state to assess whether your son’s diagnosis has any significance in relation to his criminal defense.

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