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Positive Drug Test

It’s true. 90.45687 percent of all violations are based on something simple–a positive drug test. It’s also true that a positive drug test may lead to a violation warrant–but a conviction is much tougher to prove. Let’s run through how this works.

A probationer showing up for his monthly meeting, takes a urine test, and the test comes up positive for some illegal drug. Once a probation officer obtains a positive drug test, the violation process begins (basically, the probation officer sends an Affidavit to the judge swearing that the probationer has done something wrong, and the judge then, typically, issues a warrant). Sometimes, a violation and warrant for the probationer’s arrest are filed soon–even though a laboratory has never examined the probation officer’s test results. Other times, the probation officer will not file the violation until the lab report confirms the positive drug test. Either way, it is always best that the probationer not say anything more to the probation officer. Anything said at this point will be used against you later.

There are lots of defenses to a dirty urine violation, but the defenses available depend upon which drug the person tested positive for. Testing positive for marijuana will be defended differently than cocaine, and a positive cocaine test will be fought differently than methamphetamines.

To understand what defenses are available, we first have to understand the state’s offense. The good news is, the State will NOT present ANY scientific evidence! As such, the prosecution is leaving the door wide open for the defense to explain how these test results may have come up positive–without the probationer ever breaking the law.

How will the State attempt to prove a dirty urine violation? They will present two pieces of evidence. First, the probation officer will testify regarding the results of the urine test kit. Yes, these are the same kits that are stamped “Not Admissible In Court”. I wish this were the case, but unfortunately, the results of these field test kits are quasi-admissible, as recent court decisions have elevated probation officers to a status once held by expert chemists. The field test kit results were considered “hearsay” for as long as I’ve been practicing criminal defense (since 1993), but for reasons that defy logic, our courts are now permitting probation officer testimony regarding the results of these field test kits (the case I’m speaking of is Florida v. Queior, 2016 Fla. LEXIS 841 (Fla. 2016).

Keep in mind–a positive drug test does not mean that a defendant ingested an illegal substance, it could mean many other legal substances were ingested. Often, the State’s drug test kits only identify certain metabolites, not the illegal substance itself. There are numerous scientific explanations supporting the fact that a positive drug test does not mean the probationer ingested an illegal substance. And, with the recent state strategy of NOT calling any expert witnesses to defend their test results–the door is wide open to the admissibility of alternative explanations as to why the lab reports are positive for a certain substance. For a deeper understanding of how flimsy the State’s case can be on a dirty urine violation, click on my article “A Violation Based Upon Dirty Urine, Proof Is Now Optional“.

For more details on how a positive drug test can play out in court, check out my articles “Positive Drug Test Not Enough to Support VOP Conviction”, and “Another VOP Based Upon Dirty Urine is Thrown Out of Court.” Both of these articles must be read in light of the Florida Supreme Court’s decision in Florida v. Queior, cited above.

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