A very common violation of probation allegation in Michigan and elsewhere is for using or testing positive for drugs or alcohol while on probation. The punishment for drug or alcohol related violation of probation can include one or a combination of any of the following: no sanction; added conditions of probation such as increased drug/alcohol testing, drug treatment, AA/NA meeting attendance, community service, etc.; extending the term of probation; requiring Adult Treatment Court program participation (if the Court has an Adult Treatment Court program); incarceration of various lengths up to the maximum allowable sentence that can be imposed.
Judges differ in philosophy in terms of how they view a positive drug or alcohol test. Some Judges view a relapse, or relapses, as a part of recovery and may be willing to invest additional resources into the probationer to address the drug and/or alcohol problem. Other Judges have a no tolerance view of a positive drug or alcohol test, and want their reputation of strictness to deter a probationer, and others, from use. There are Judges that combine these philosophies and balance rehabilitation with punishment. A Court usually will eventually give up on a person who repeatedly violates their probation, and will usually choose to incarcerate the person.
There are circumstances in which a person will falsely test positive for drugs. A positive drug screen is often sent for additional analysis to confirm or negate the original test. Drug and alcohol testing is viewed as reliable by Courts, and it is often hard to overcome a positive test at a probation violation hearing. Reasons why someone might wrongfully test positive for drugs or alcohol include: the person tested positive for a valid prescription that he or she was taking; the person ingested a substance that could lead to a false positive such as poppy seeds, vanilla, or mouthwash; there was a human error regarding the testing procedures, etc. Any error in drug testing should be contested by an experienced criminal defense lawyer, such as Attorney Daniel Hilf.
Courts differ on their views of medical marijuana, however, it seems that the vast majority of Courts in Michigan do not recognize medical marijuana as a valid medical treatment option even though the majority voters in the State of Michigan think differently with the passage of the Michigan Medical Marijuana Act. A Judge has large discretion in setting the terms of probation and can prohibit a probationer from doing things that are otherwise legal such as using alcohol, frequenting bars, using medical marijuana, using any opiate based prescription drugs, etc.
There are several ways that probationers try to pass detection for use of drugs when subjected to drug testing:
Abstaining – Not all drugs remain detectable in urine for the same amounts of time. For example, cocaine may be undetectable after 3 to 5 days, however marijuana may remain in someone’s system for 30 to 45 days. Alcohol may be detectable for 3 or 4 days through a ETG (Ethyl Glucuronide) urine test, and a much shorter period of time through a breathalyzer test. Abstaining to a user usually means not using a particular substance within a window of time prior to a drug or alcohol test in the hope that the substance will no longer be in his or her system when the drug or alcohol test is administered. Abstaining from use to avoid detection for use of drugs or alcohol is, of course, legal. However, with the administration of random drug testing this is often a risky proposition.
Adulteration – This strategy involves adding a substance to the urine to nullify the test results. This may be difficult depending upon the testing procedures. Also, certain adulterants are detectable depending upon the testing methods employed.
Dilution – A person dilutes a urine sample by either adding water directly to the urine sample, or purposely drinking an excess of water or other liquids, to try and flush out drug metabolites. Along with the color of the urine sample, dilution is detected by testing the creatine level and/or the specific gravity of the urine sample. In many instances a person innocently dilutes a urine sample. Sometimes a testing facility even encourages a person to drink water or liquids when he or she is unable to produce a urine sample at a testing facility or a probation department which sometimes leads to a diluted sample.
Masking – Sometimes a person subjected to drug testing will try and take a substance to cover up the presence of drug metabolites in their urine so the drug metabolites are not detected when the urine is tested. Some drug tests can detect masking agents.
Substitution – A very risky strategy employed by some probationers to evade drug and/or alcohol detection is for a probationer to attempt to submit someone else’s urine as their own. This usually involves using a hidden device to pour urine in the testing cup at the testing facility. Probationers are often caught doing this because either the device is discovered by the person monitoring the test, the sound of the urine being poured into the testing cup does not match the sound of urine being excreted from the body, the test results are inconsistent with other test results, and/or the temperature of the urine is not consistent with the temperature of urine coming from the body.
If a Judge determines that a probationer intentionally tried to manipulate or cheat the drug or alcohol testing procedures, the Judge can be very heavy handed as it relates to the sentence imposed for violation of probation. Providing someone else’s urine, or directly adding a substance to the urine, attacks the integrity of the system and undermines the authority and respect of Courts.
Anyone charged with probation violation has the right to be represented by a lawyer. The probationer can elect to have a contested hearing in which either the prosecutor or the probation department would have to establish that the probationer violated at least one condition of his or her probation by a preponderance of the evidence. Preponderance of the evidence means that a probation violation is established to be more likely than not to be true (which is a far lesser standard than beyond a reasonable doubt). At the hearing the probationer has a right to be present. His or her lawyer can cross examine any witness presented against them, and can even call witnesses on his or her behalf to testify in Court. Subpoenas can be issued to witnesses that will not come to Court on their own accord. Any relevant evidence is considered by the Court that is submitted. The Court can even consider hearsay testimony or hearsay evidence at this type of hearing, submitted by either side. The Michigan rules of evidence do not apply in the same manner at a probation violation hearing. A probationer does not have to testify at a probation violation hearing, and the probationer’s silence will not be used against him or her. If a violation of probation cannot be established, the probationer has a right to be continued on probation.
Drug and alcohol violations of probation are most often proven to the Court by the testing results. Sometimes the violation of probation is based upon the credibility of a witness that allegedly saw the probationer use alcohol or drugs. If the probationer admitted that he or she used prohibited drugs or alcohol, this also can be sufficient to establish the probation violation. Often when a probationer admits to use of alcohol or impermissible drugs an alcohol or drug test is not given to confirm the admission.
The probationer also has the option to admit to the violation of probation. The probationer (if he or she either pleads guilty or is found guilty of probation violation) is always given the opportunity to explain why the violation of probation came about and to try and mitigate any sentence the Court might impose.
It is important for the probationer to be represented by an experienced criminal defense lawyer. An experienced criminal defense lawyer can properly defend the allegations at a hearing when necessary. An experienced criminal defense lawyer, when the violation of probation is established at a hearing or through a plea of guilty, can often persuade a Judge in terms of the sentence imposed. The experienced criminal defense lawyer should be aware of all potential sentencing options that can reduce or eliminate incarceration, and/or address rehabilitation issues. In many instances the use of illicit drugs is related to a probationer self medicating for a detected or undetected medical or mental health condition. The bottom line is that the attorney needs to do everything in his or her power to achieve the best possible outcome available.