When you receive probation, it is often as an alternative to serving time behind bars. Instead, you can serve your sentence under supervision in the community, which is why Texas law often refers to it as “community supervision.” However, there are strict conditions for probation. This often includes mandatory drug testing.
If you fail a drug test while on probation in Texas, you could face serious consequences. This could include increased supervision, mandatory addiction treatment, or revocation of your probation.
If you are facing a possible probation violation because of a failed drug test, you have legal options.
Working with a Houston probation violation lawyer can help you fight the allegations, negotiate a second chance, and minimize the potential penalties you could face.
Drug Testing as a Condition of Probation in Texas
Under Texas Code of Criminal Procedure § 42A.301, courts can use various rules and conditions when sentencing an individual to community supervision. If there is any indication of past drug use or alcohol abuse, regular or random drug testing is often one of these conditions.
Probation officers usually manage these drug tests, whether randomly or routinely, as ordered by the court. They can also request a drug test at any time. Testing positive for any illegal substance is considered a violation of probation. This could include marijuana, prescription drugs without a prescription, or illicit street drugs.
What Happens After a Failed Drug Test?
The consequences of failing a drug test while on community supervision depend on a number of factors. This includes the nature of the original offense, prior positive drug tests, and the discretion of the probation officer.
The judge who hears the case might also exercise discretion when deciding the case. For example, those on probation for a drug charge are less likely to receive leniency than those with no prior drug-related offenses on their record.
Some possible outcomes include:
A Warning or Increased Supervision
For a first-time violation, the probation officer may give a warning or increase supervision. This could include:
- More frequent in-person check-ins with the probation officer
- More frequent drug testing
- Mandatory drug counseling or rehabilitation
A Houston first offense probation lawyer from our team can explain whether this may happen in your situation.
Modification of Probation Conditions
If the probation officer turns the case over to the court and the judge finds it to be concerning, they may modify the probation conditions as allowed under Texas Code of Criminal Procedure § 42A.052. This could include:
- Requiring mandatory drug treatment program attendance
- Adding community service hours
- Extending the probation
- Imposing curfews, adding travel restrictions, or limiting contact with certain parties
Probation Revocation and Jail Time
If the judge determines that the drug use is an ongoing problem or poses a risk to others, they may revoke the probation and put the individual behind bars.
For misdemeanor probation violations, this is usually served in a county jail. For felony probation violations, the individual is usually sent to state prison for their original sentence.
New Criminal Charges
In some cases, failing a drug test during probation could lead to additional criminal charges. These are often related to the possession of illegal substances; a charge under Texas Health & Safety Code § 481.115 is common.
This is the statute that makes it illegal to possess a controlled substance such as cocaine or methamphetamine. This is a felony offense.
How Can a Probation Violation Lawyer Help If I Fail a Drug Test During Community Supervision?
If you fail a drug test while on probation, you will not automatically be sent to jail. Having an attorney from our team on your side will allow you to build a strong defense and possibly get the best outcome in your case.
Some ways your attorney may help you after a failed drug test include:
Challenging the Drug Test Results
Our attorney can challenge drug testing results. They can be inaccurate because of contamination, mishandling, errors in testing procedures, false positives caused by prescription medications, and numerous other reasons.
Negotiating with the Probation Officer or Prosecutor
Sometimes, probation officers are willing to help you get back on track instead of putting you back into the system. Our attorney may be able to help you work out an agreement for a drug or alcohol rehabilitation program instead of jail time or a second chance with more strict conditions, including regular drug testing.
Representing You in a Revocation Hearing
If your case does go to a probation revocation hearing, our attorney will defend you in court. A strong case can make a difference in the outcome of your hearing. We may be able to argue that you would benefit more from rehab or remaining in the community under strict probation conditions instead of going to jail.
Minimizing Penalties
Under some circumstances, it may be difficult to convince a judge to give you another chance. However, the judge may consider a number of factors when deciding how long you should serve or if an alternative sentence is possible.
These factors could include:
- Your completion of other probation requirements
- Whether you suffered a relapse or have been using drugs habitually
- If you are willing to go to treatment
- Your positive engagement in the community, such as work and family activities
Our Attorney Will Fight for the Best Possible Outcome in Your Case
If you fail a drug test while on probation in Texas, you need to take the possible consequences seriously. However, it does not automatically mean you will be going to jail.
Probation officers and judges have a lot of discretion in how they choose to handle these violations. When you have a strong legal strategy, you may be able to avoid the harshest penalties.
If you or a loved one is facing a probation violation, our team is here for you. Our Houston criminal defense attorney can protect your rights, develop a robust strategy to manage your case, and fight for the best possible outcome.
Talk to Our Team About Your Options Today
Attorney Jay Blass Cohen from Blass Law is a certified ACS-CHAL Forensic Lawyer-Scientist and is certified in forensic chromatography for both alcohol and drugs. He has the education and experience to challenge positive drug testing results.
Our team offers confidential consultations for those facing probation violations because of a failed drug test.