If you fail a drug test while on misdemeanor probation, the most common happenings include:
- a warning,
- community service,
- rehabilitation,
- counseling,
- modification of probation conditions or probation revocation, and
- jail time.
In cases involving probation modification or revocation, a judge will likely hold a probation revocation hearing to determine that you did in fact violate the terms of your probation. Upon this finding, the judge may:
- reinstate your probation,
- modify the terms of your probation, or
- revoke your probation and place you in county jail.
Note that some common misdemeanors that may result in probation include:
- DUI,
- certain drug crimes (like possession of illegal drugs), and
- some domestic violence offenses.
1. Can you receive a warning for a failed drug test?
Possibly, yes. A probation officer might warn you not to use drugs again if you fail a drug test while on misdemeanor probation. This is especially true if it is your first drug test failure.
If a warning is issued, a note of it usually goes into your probation file. If you fail a subsequent test, your penalties will likely increase.
2. What about community service?
State laws typically authorize probation officers to impose community service hours for a failed drug test. This is a likely occurrence for a first time or second time drug violation.
In general, community service is when a probationer performs hours of unpaid work in a neighborhood or community.1
These hours are usually performed at a volunteer group approved by your county.
3. Will a failed drug test result in a rehabilitation program?
It could. If you fail several random drug tests during a probationary period, the failures may indicate you have a drug problem. As a result, a judge or probation officer may order you to complete a drug rehabilitation program.
Depending on the facts of the drug test failures, you could have to complete either an inpatient program or an outpatient treatment program. If the latter, you can complete it while also attending work and/or school.
4. Might you have to attend counseling?
Possibly, yes. Sometimes one or more failed drug tests is evidence that a probationer is suffering from mental or emotional trouble.
If a probation officer finds this to be the case, you could have to attend counseling to help with an underlying illness or drug issue.
5. Can a judge modify or revoke your probation?
Possibly, yes. If you failed a drug test, or the failure was combined with the commission of certain drug crimes, a judge could decide to modify your conditions of probation. This typically means that a judge will impose additional conditions or make your existing conditions more severe.
A judge can also decide to revoke your probation. If this takes place, the judge usually orders you to serve any suspended sentence in county jail.
If you violate a term of your probation, a judge may hold a probation violation hearing to determine if you did, in fact, violate a condition of probation. This can occur for defendants serving either misdemeanor probation or felony probation.2
During this hearing, a prosecutor has the burden of showing, by a preponderance of the evidence, that you violated a probation term.3 If a prosecutor shows that you violated probation, most jurisdictions say that a judge may:
- reinstate your probation on the same terms and conditions that were in effect prior to the violation,
- modify the conditions of your probation with new, stricter terms, or
- revoke the probation and make you complete a jail sentence/jail time.4
6. What about jail time?
A judge technically can impose jail time as a penalty for failing a drug test while on probation.
In fact, the court could sentence you to jail for up to the maximum term of the conviction offense.
Note, though, that you will not likely see a jail term if you failed a single test and have a relatively clean criminal record.
Your chances of going to jail will increase if you:
- have a detailed criminal history, and/or
- your test failure was combined with some other criminal charges.
7. Can a criminal defense attorney help?
Yes. As with a criminal trial, you have the right to be represented by a criminal defense lawyer at a probation revocation hearing.
An experienced defense lawyer can help you present evidence to show that you did not violate the terms of your condition.
If a judge finds that a violation occurred, an attorney can try to persuade the judge to reinstate your probation terms or otherwise keep you out of jail.
Note that most criminal defense lawyers and law offices/law firms provide free consultations. This means you can get legal advice at no cost.
Further, the communications between you and your lawyer are protected by the attorney-client relationship. As a result, a lawyer cannot disclose your confidences without first getting your consent.
Legal References:
- See Black’s Law Dictionary, Sixth Edition – “Community Service.”
- See, for example, California law – Penal Code 1203.2 PC.
- Note that a “preponderance of the evidence” standard is a lower standard to meet than a “beyond a reasonable doubt” standard that applies in criminal cases involving jury trials.
- See, for example, Arizona Rules of Criminal Procedure 27.8(c).
