Facing Marchman Act Protective Custody? Get Clear Answers

Protective Custody Under the Marchman Act: When Police Can Transport Someone for Assessment

Protective custody under the Marchman Act allows law enforcement to transport someone to a facility for assessment. This happens when that person is believed to have lost control over substance use. Unlike the Baker Act, which addresses mental health crises, Marchman Act protective custody can be initiated by law enforcement without a prior court order, and a court-ordered pickup under an ex parte assessment order is a separate mechanism.

This page explains when police can take someone into protective custody, how the process works, and how it differs from the Baker Act.

For a general overview, see our Marchman Act overview guide and Marchman Act vs. Baker Act comparison.

Understanding Marchman Act Protective Custody

The Marchman Act provides Florida’s legal framework for involuntary assessment and treatment of substance use disorder. Protective custody under the Marchman Act is a separate mechanism that allows law enforcement to take a person into custody for assessment when statutory criteria are met (Florida Statute 397.677).

The Baker Act addresses mental health emergencies. The Marchman Act addresses substance use disorder and addiction. Understanding which applies to your loved one is critical—the legal pathways differ significantly.

When Law Enforcement Can Take Someone Into Protective Custody

Law enforcement may take a person into protective custody under the Marchman Act when:

A court has issued an order. When a family member files a Marchman Act petition and the court grants an emergency or temporary order, law enforcement is authorized to locate and transport the person to a designated assessment facility.

The person meets statutory grounds for assessment. The individual must be believed to have lost control over the use of a controlled substance or alcohol (Marchman Act involuntary assessment provisions). Assessment is necessary to determine whether involuntary treatment is appropriate.

Immediate intervention is necessary. In urgent situations where a person is in danger or poses a risk due to substance use, law enforcement may initiate protective custody pending formal court proceedings.

The person is in a location accessible to law enforcement. Police can transport someone from their home, a public place, or another location to an assessment facility once authorized by court order or under emergency circumstances meeting statutory criteria.

The Marchman Act Protective Custody Process

The process typically unfolds as follows:

Under Fla. Stat. § 397.68112(1), for an adult respondent, a petition for involuntary treatment services may be filed by the respondent’s spouse or legal guardian, any relative, a service provider, or an adult who has direct personal knowledge of the respondent’s substance abuse impairment and his or her prior course of assessment and treatment. This information is general and does not describe every requirement that may apply to a particular case. The petition alleges that the person has lost control over substance use and requests court intervention.

Under Fla. Stat. § 397.6818(1), when the petitioner asserts that emergency circumstances exist, or when upon review of the petition the court determines that an emergency exists, the court may rely solely on the contents of the petition and, without the appointment of an attorney, enter an ex parte order.

Under Fla. Stat. § 397.6818(2), a law enforcement officer or another designated agent of the court may be ordered to take the respondent into custody and deliver him or her for evaluation to either the nearest appropriate licensed service provider or a licensed service provider designated by the court.

Under Fla. Stat. § 397.6818(2)(b), a law enforcement officer or another designated agent of the court may be ordered to serve the respondent with the notice of hearing and a copy of the petition.

Under Fla. Stat. § 397.6818(1), that ex parte order is for the respondent’s involuntary assessment and stabilization, and the statute provides that it must be executed during the period when the hearing on the petition for treatment is pending.

Under Fla. Stat. § 397.6957, the report must contain a recommendation on the level of substance abuse treatment the respondent requires, if any.

Protective Custody vs. Voluntary Admission

Protective custody means law enforcement takes the person into custody and transports them to a facility, typically following a court order. The person does not voluntarily agree to go.

Whether a petition is appropriate depends on the statutory criteria, and the court decides based on the evidence presented.

How Marchman Act Protective Custody Differs from Baker Act Holds

This distinction is essential. These two laws address different situations.

Baker Act holds are initiated by law enforcement or healthcare providers in the moment of mental health crisis. You call 911, and authorities respond immediately. A person may be held for psychiatric evaluation. The Baker Act does not require a court petition filed in advance.

Marchman Act protective custody may be initiated by law enforcement without a prior petition filed by a family member. In some cases, and at the court’s discretion, a court may issue an order authorizing law enforcement to take the person into custody. This process takes more time but gives families a structured legal pathway for intervention when substance use is the primary concern.

Key difference: Baker Act is emergency-driven and immediate. Marchman Act protective custody can be initiated by law enforcement, while emergency Marchman Act petitions exist for urgent situations.

Emergency Marchman Act Petitions and Protective Custody

When immediate intervention is necessary, an emergency Marchman Act petition may be filed to ask the court for a temporary order. If the court issues such an order, it may authorize law enforcement to take the person into protective custody for assessment, and timing depends on the court’s schedule and discretion.

Emergency Marchman Act petitions are filed when:

• Your loved one is in immediate danger due to substance use
• They refuse voluntary assessment or treatment
• Waiting for a full court hearing would create risk
• You need law enforcement to intervene and transport them to a facility

Filing an emergency Marchman Act petition requires understanding (Florida’s statutory requirements) and proper court procedures. Richard J. Casey III, Esq. focuses on Marchman Act petitions and can discuss your options with your family during a free, confidential initial consultation with no obligation to continue.

Protecting Yourself and Your Family During a Crisis

If you are in immediate danger, your safety comes first.

Remove yourself from the situation if you feel threatened. Leave the location and call 911 from a safe place.

Call 911 if you or anyone else is in imminent danger of harm.

Document specific behaviors and statements related to substance use. Note what you observed, when, and how it demonstrates loss of control over alcohol or drugs.

Gather information about addiction history if available (prior treatment, relapses, overdose incidents). This context helps the court and assessment professionals.

Have contact information ready for law enforcement and the court, including the person’s name, location, and any known medical conditions or substance use patterns.

Consult an attorney before filing a Marchman Act petition. An attorney can explain your options and the statutory requirements that may apply to a petition, and the court decides whether the petition meets them.

After Protective Custody: What Happens at the Assessment Facility

Once law enforcement transports someone to an assessment facility under protective custody, a qualified professional conducts an evaluation. The assessment typically includes:

• Medical and psychiatric evaluation
• Substance use history and patterns
• Current intoxication or withdrawal status
• Assessment of danger to self or others
• Evaluation of whether involuntary treatment is necessary

At the end of the assessment period, the court, in its discretion, may determine whether the person will:

• Agree to voluntary inpatient or outpatient treatment
• Be ordered by the court to remain in involuntary treatment if the statutory criteria continue to be met, as the court decides.
• Be discharged if they no longer meet grounds for involuntary treatment

Family members may be notified depending on the person’s wishes and consent laws. Follow-up treatment planning occurs, and discharge planning begins.

When to Seek Legal Guidance

Consider contacting an attorney if:

• Substance use or addiction is the primary concern driving the crisis
• You need to file a formal petition for involuntary assessment or treatment
• Emergency intervention is needed and you want to understand your options
• You want to understand your legal options as a family member
• Your loved one refuses voluntary treatment and you’re considering legal intervention

Frequently Asked Questions

If your loved one is in acute crisis right now, call 911. If you’re researching your options because substance use or addiction is the underlying issue, protective custody under the Marchman Act and emergency legal intervention may be what your family needs. Contact Robinson & Casey to discuss which legal pathway fits your situation and how we can help guide your family through this decision.