Drug Offender Probation is a type of probation that may be offered to people charged with drug offenses. However, it can also be used as a modified form of probation should somebody have a probation violation for a positive drug test.
People on probation fail drug tests all the time. It's considered a technical probation violation and is probably one of the most common violations.
While on regular reporting probation you will be drug tested monthly. If you fail a drug test, your probation officer will file a probation violation affidavit. That affidavit is submitted to the judge, who then may issue a warrant for your arrest. When you are taken into custody, you may sit in jail without a bond due to the pending violation. All because you may have smoked a little marijuana.
If you're on probation for a serious offense (second-degree felony or higher) and you test positive for drugs, expect that the prosecutor will be seeking jail time. Especially if you are on probation for a crime in which you score state prison at the bottom of your guidelines (burglary of a dwelling, aggravated battery).
If you are on probation for a crime that falls under the Anti-Murder Act, you will be considered a Violent Felony Offender of Special Concern, and may not be eligible for a below-guidelines sentence unless the judge makes specific findings that a below-guidelines sentence is warranted.
Drug Offender Probation, however, is an alternative when faced with a probation violation due to drug use. If you have a drug problem, you should receive treatment. Drug addiction is not a crime, it's a disease.
However, prosecutors and many judges don't feel that way. They want to lock you up for being sick. Drug Offender Probation provides the state and the court with a way to put you back on your probation without having to serve jail time. However, unlike regular probation, Drug Offender Probation is geared toward helping addicts. You will receive treatment and counseling and will be required to submit to more frequent, random drug tests.
As a criminal defense attorney, I am constantly faced with clients who are looking at probation violations. Mostly because of positive drug tests. It can be very scary to be facing a probation violation. The burden of proof is substantially lower, meaning that it is easier for the state to win a probation violation hearing than a trial by jury.
Negotiating a resolution is what every good defense attorney should aim to do when their client is facing a probation violation. Fortunately, Drug Offender Probation may be the solution that will keep you out of jail. If you are on probation and have violated with a positive drug test, having your probation modified to Drug Offender Probation will alleviate the need for jail as you will be getting the treatment and services that you need.
If you are on probation and violate with a positive drug test, you may call me to see if a modification to Drug Offender Probation is possible. I represent clients in Miami-Dade and Broward and can be reached at (305) 542-9491.