Using Drugs During Probation is Considered a Violation: Penalties and Defense

Posted on July 18, 2013 in: Criminal Defense

A person who is on probation is expected to follow certain terms established by the state and, in some cases, the county. Standard terms of probation include abstaining from drugs and alcohol, and specifically illegal controlled substances.

Those who test positive for the use of a controlled substance during probation commit a technical violation and are subject to additional penalties as enforced by the state and/or county.

A Quick Overview of How Violation of Probation is Viewed

The state will often require a person who is on probation to submit to regularly scheduled drug tests. Random – i.e., unannounced – drug tests also may be ordered in certain circumstances.

A person who is found in violation of probation by testing positive for the use of a controlled substance – such as marijuana, cocaine, methamphetamine, etc. – is subject to additional criminal penalties that may include a revocation of probation.

Additionally, those who face a violation of probation proceedings are not afforded many of the same rights and protections as those given during an initial criminal trial.

What Happens During a Violation of Probation Proceeding

Violation of probation proceedings differ from criminal court proceedings in that, the defendant has already been sentenced for the crime. A violation of probation proceeding can move quickly, leaving little time to mount a viable defense. This could leave the defendant/offender with significantly less civil protections than would be afforded during an initial criminal hearing.

How Violation of Probation Proceedings Differ from Criminal Trial

Some of the special circumstances that apply during a violation of probation proceeding include: 

  • lack of a jury trial;
  • hearsay – statements made out of the court – are allowed as evidence against the accused (this opens up the door for “evidence” such as “Tom told me that Susan was buying cocaine from a neighbor.”);
  • the accused has no right to seek a bond while awaiting the hearing;
  • the accused may testify against himself or herself; and
  • the state does not have to prove guilt beyond a reasonable doubt.

While the state holds sway in a violation of probation proceeding, there are viable defense options available, including: 

  • proving one’s innocence;
  • demonstrating full compliance of probationary terms; or
  • proving that the state has a lack of sufficient evidence of violation. 

Penalties for Violating Probation by Use of Controlled Substance 

The penalties for violating probation by use of controlled substances may include: 

  • revocation of probation (this gives the judge the right to impose the maximum penalty for the initial criminal charge that led to probation);
  • modification of probation (for example, extending the probationary period from one year to three years or requiring more frequent drug testing and visits with a probation officer); or
  • reinstatement of probation. 

The severity of the penalties may depend on the accused’s ability to mount a viable defense. 

Understanding the Terms of Probation

When an individual is given probation, he or she must be made aware of the full terms of said probation. In many cases, this includes abstaining from the use of controlled substances and agreeing to submit to regular and random drug tests.

For example, a person who was convicted of a drug crime – such as trafficking of marijuana or possession of marijuana – will be required to submit to random testing throughout the probationary period. These conditions should be made clear at the time that probation is awarded.

If you are facing a violation of probation proceeding, contact a defense attorney who understands how to defend against such charges. Call 877-663-5110.

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