By Attorney James Czarnecki|Czarnecki & Taylor PLLC|Nov 1, 2022
If you fail a drug test while on probation, there are several consequences you may have to deal with in court. Probation officers will notify the judge of the violation. The judge will then determine whether to extend your probation period, sentence you to jail, or add other conditions. You may also be required to attend drug rehabilitation classes and counseling sessions as part of a mandatory treatment program. However, before the judge can sentence you for a violation, you are entitled to a hearing.
The Michigan probation violation hearing
A Michigan probation violation hearing is a formal legal process where a person who has violated the terms and conditions of their probation has to answer for the violation or contest the allegations.
During this hearing, the probationer will present evidence and witnesses in their defense against the allegations, and to present mitigating circumstances that may affect the outcome of their case. During the hearing, both sides will typically make arguments before the judge about whether there was actually a violation of probation. Typically, the prosecution will lay out their evidence against the defendant and argue that a violation occurred. The defense will argue that there is not enough evidence to prove that the probation terms were violated, and may offer mitigating circumstances or other evidence to support their position. The judge presiding over the hearing will ultimately determine whether there has been a violation, and what punishment should be imposed if it is determined that one occurred.
If the judge determines that there has been a violation of probation, they may impose many punishments. Possible punishments may include fines, additional time in jail or prison, increased supervision requirements, community service, restitution payments, or mandated participation in treatment programs or counseling sessions. It is important to work with an attorney if you are facing a Michigan probation violation hearing so that you can protect your rights and work towards the best possible outcome for your situation.
In this link we provide more information on what happens at a probation violation hearing.
Consequences of failing drug test while on probation.
If you are found guilty of the probation violation, the court will sentence you. Depending on the severity of your violation, you may be required to serve the rest of your original sentence. You may lose any benefits that were assigned as part of your probation, such a sentence that keeps a conviction off of your record. Finally, depending on how often you have been tested during your probation period, the court may require increased random testing.
So, a failed drug test may result in the following:
- revocation of your probation
- loss of HYTA, 7411, 769.4a, 771.1 (a special status that keeps the conviction off of your record
- jail time
- additional counseling
- any other condition the court deems necessary
- extension of probation period
- court ordered rehabilition program
- community service programs
Here is a detailed article on the consequences of a probation violation.
Will you go to jail?
Yes, it’s possible. The good news is, it’s unlikely. But, always know that if you fail a drug test while on probation, you could face the jail sentence you could have originally received at sentencing. Probation violation statute.
If you’re on felony probation in circuit court, you could end up in jail or prison. In felony cases, sentences are guided by the Michigan sentencing guidelines. For example, if you were convicted of an offense where the recommended sentence guideline range was from 5 to 15 months, but instead you received probation, the court could sentence you anywhere from 5 to 15 months in jail or prison. So, while incarceration is unlikely, it is a possibility. It all depends on what court your case is in and what your criminal history is like.
So, if you fail a drug test while on probation, your jail sentence depends on the sentence you could have received during your sentencing. Also, the possibility that a judge will sentence you to jail depends on how many previous failed drug tests you’ve had, the number of prior probation violations, and how your probation is going.
If you failed a drug test while on probation, the court may not revoke your probation and sentence you to jail. Probation conditions help people get back on track. Many factors will play into whether failed drug tests lead to revocation. Those factors may include previous offenses or a number of failed drug tests.
Accepting responsibility for a failed drug test begins with understanding why you failed the drug test. Whether you failed because of an addiction issue or a bad decision, making a habit of failed drug tests will make revocation more likely.
If you want to remain on probation and stay out of jail, avoiding failed drug tests requires self-discipline and commitment to sobriety during your probationary period. This might require extra help, so don’t be afraid to ask your probation officer about resources or referrals for counseling or rehabilitation.
Never use the Nyquil defense for a positive alcohol test. Learn why here.
Is there a good excuse for failing a drug test?
If you know you failed the drug test because you used a substance or consumed alcohol, you should be upfront with the court. The court treats people harshly when they deny or lie about an otherwise valid test. When you accept responsibility, the court often shows leniency. This is especially true if you sign up for AA, NA, or individual counseling programs. The court is interested in helping you address your addiction if you have one.
However, sometimes a positive test results in a “false positive. Some common reasons include faulty testing equipment, foods that you ate, or problematic testing procedures. So, yes, there can be a good excuse for failing a drug or alcohol test.
How do I know if I failed a drug test while on probation in Michigan?
Usually, your probation officer will notify you when there is a problem with your drug test.
What to do if you failed a drug test while on probation
There are steps you should take if you failed a drug test:
1) If substance abuse is a problem sign-up for a treatment program
2) Talk to your probation officer about the programs you can enter
3) If you believe that the result is a false positive you should ask the probation officer for a confirmation test; you could also get a confirmation test on your own
4) If the positive result is because of medications prescribed by your doctor, provide your probation officer with the current prescription – do not use a prescription from several months ago or longer. Get a letter from your doctor as well.
Learn what everyday substances can cause a false positive test. Here is a detailed article reviewed by a pharmacist showing what substances can cause a false positive.
If your failed drug test results from your actual use of drugs or alcohol, you might accept responsibility.
If you test positive for drugs while on probation, and want to take responsibility for the poor choice, seek help by enrolling in a treatment program. The judge will likely appreciate your efforts to address your drug or alcohol use, and may be more willing to trust that you can comply with the terms of your probation if you show you are committed to changing your life. However, if you choose not to enter a treatment program after testing positive for drugs, this could make it more difficult for the judge to trust that you can follow through with your probation requirements.
If you have been charged with a drug-related offense and are placed on probation, it is important to take your recovery seriously and seek the help that you need in order to address your drug use. There are many effective treatment options available, such as behavioral therapy, counseling, or medication-assisted treatments like methadone or buprenorphine. By working closely with a healthcare provider and taking an active role in your recovery, you can overcome your addiction and learn how to live a healthier life without drugs.
How to properly handle a false positive test.
False positives drug tests can be attributed to various issues, including: 1) taking prescription medications without understanding how they will interact with the test; 2) outside factors such as problems with the testing agency; 3) certain foods; and 4) the test may be flawed.
If you believe the test is faulty, you must get an independent test done as soon as possible. False positives or dilute urine samples are problematic because, without an independent test, it is difficult to show that you have not been using drugs or alcohol. A hair follicle test is a simple way to show that you have not been using any substances.
Courts treat a dilute urine test as a positive because they believe you are trying to defeat the test by masking the results. While this is not always true, unfortunately, courts have adopted this stance. A dilute test or low creatinine level may result from medical issues and not an attempt to mask drug or alcohol use. Again, an independent test, such as a hair follicle test can show that you are not using any substance.
During a hair follicle test, a small amount of hair is removed from your head. The sample is then analyzed for signs of drug use during the 90 days preceding the test. It’s typically used to test for:
- amphetamine
- methamphetamine
- ecstasy
- marijuana
- cocaine
- PCP
- opioids (codeine, morphine, 6-acetylmorphine)
While a urine drug screen is used to determine if you’ve used drugs in the last few days, a hair follicle drug test can detect drug use in the past 90 days. A hair follicle test would be conclusive evidence to refute a dilute or false positive test.
1. Take a second test as soon as possible.
When notified by probation, explain that you believe the result to be a false positive and you would like to take a second test to confirm or disprove the results. If the probation department is reluctant to pay for a hair follicle test or ETG, you may have to pay the expenses for the test yourself.
2. Provide probation with a list of all substances and prescriptions you are currently using.
If you are taking prescription or over-the-counter medications, inform your probation officer immediately. You should let the court know at sentencing. Talk to your probation officer and tell them you will take a second test to prove that you haven’t used any drugs or alcohol.
3. Request a different testing method or ask probation to get a confirmation test done
If you get a false positive result using one method of testing, you could request another be used. Also, when your probation officer informs you of a positive test and you dispute the results, ask for a confirmation test that will retest your sample.
4. Get assistance from an attorney
You should always hire an attorney if you face a probation violation. An experienced defense attorney will guide you through the process. While false positive drug tests occur for many reasons, it is best to consult with a lawyer as soon as possible if you have a probation violation. What to expect at a probation violation hearing.
How our team can help with your probation violation.
Our team can help you navigate the complex process of dealing with probation violations. Whether you are facing potential jail time or other sanctions, having an experienced legal professional on your side can make all the difference in how successful you are in navigating this difficult situation.
There are several factors that may contribute to a probation violation and each one will be handled differently. For example, for failing to meet certain requirements, like attending classes or work programs, we will see that you get into the class before the hearing. We can adjourn the hearing until you enroll. However, more serious violations like committing new crimes or using alcohol or drugs may result in jail time or other severe consequences which will require a different strategy.
One of the most important things our team can do for you when dealing with a probation violation is to provide you with sound legal advice and guidance. A probation violation can be challenging, as there are different factors that will determine whether you will be found guilty of violating your probation. We can help you understand these factors so that you know exactly what steps to take in order to ensure the best possible outcome.
Another key factor that we will consider when helping you deal with a probation violation is evaluating the evidence against you. At times, the evidence is simply overwhelming. We are skilled in understanding how to respond to this type of evidence, and can help you develop a strategy for dealing with it.
Our team can also evaluate any mitigating factors that may benefit you. These include things like whether you have a prior criminal record, what types of steps you took to comply with the terms of your probation, and other factors that could help reduce or even eliminate any potential penalties. By working closely with you these factors are considered when developing a defense strategy for your case.
In order to get the best outcome possible for your particular probation violation case, it is important to seek legal counsel as soon as possible. An experienced attorney will assess your situation and help you come up with a strategy that provides the best chance of success.
For example, Our office has successfully challenged false positive drug tests. For example, we successfully litigated a drug testing agency’s claim that our client provided an adulterated (fake) sample. The client faced expulsion from drug court and jail time. After a hearing, the circuit court found our client not guilty of the probation violation. In fact, the court apologized to our client for the false accusation against our client.
In another instance, the court dismissed a probation violation for our client when the testing agency did not correctly take and record the temperature of a urine sample.
In yet another case, we challenged the validity of our client’s positive drug test results. Probation claimed our client used methamphetamines. The client insisted she did not use the drug. So, we adjourned the hearing to have our client get an independent test. The test came back negative. Also, after an investigation, we gathered evidence showing that the testing agency put the wrong label on our client’s sample.
Unfortunately, too many attorneys are unwilling or do not know how to challenge dilute samples or false positive tests.
We go into great detail on how a lawyer can effectively help you with a probation violation in this article.
Contact Czarnecki & Taylor
If you are facing probation violation charges, it is imperative that you seek out the help of an experienced attorney who can guide you through this challenging process. We can work with you to gather evidence in your case, represent you in court, and build a defense strategy that will increase your chances of obtaining the best possible outcome for your probation violation.
Our attorneys are highly experienced with representing people facing probation violations. We have a track record of success that is hard to match. We can review the details of your case and work with you to develop a strong defense strategy that will help protect your rights throughout this process. When you need help handling a probation violation, an attorney from Czarnecki & Taylor can be an invaluable asset to have on your side.
If you’re facing a probation violation for a failed drug test or any other reason, contact our office. Czarnecki & Taylor PLLC’s experienced attorneys will handle your case carefully and help you through every step. For a free consultation, call us at (586) 718-2345 or online for a prompt response. We are available 24/7 and have weekend and evening appointments.