Can a Failed Drug Test Result in a Probation Revocation?

April 9, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The short answer is yes.  But as with all things in our court system, it’s not certain.

Here’s how a revocation works — if you do something (or don’t do something) which is a violation of your probation or deferred adjudication, then usually a probation officer will make the decision to recommend revocation to the prosecuting attorney.  If the prosecuting attorney agrees with the probation officer (and virtually all will), then a motion to revoke probation is filed, and usually a warrant is issued.  After the accused is brought back to court, the revocation is heard.  (FYI, you’re entitled to a bond on misdemeanor revocations but for felony revocations you are not entitled to a bond in Texas.  You’re only entitled to a bond for felony revocations if you were on deferred adjudication).

Technically, a probation officer in Texas works for the Judge, but they don’t carry the power of the judge.  If they want to take any action against you — they cannot do so on their own.  In order for a probation officer to formally change the terms and conditions of your probation, they must either do so with your agreement (admittedly sometimes after bullying probationers with “or else” threats), or they must go through the prosecutor.

A failed drug test is a common example of a probation violation that results in revocation (or adjudication if the person is on deferred).  Probation officers consider many things, however, before deciding to revoke.  They are people too and they’ll hopefully consider your history, your past cooperativeness or progress, or your sincerity in admitting making a mistake if that’s the case.  In some counties, probation officers may have a bigger or smaller case load — and unfair as it may be, that can also impact their decision.

If you have questions about how a probation officer is treating you or if you’re not sure about legal representations they make to you — it is not inappropriate at all to involve a lawyer.  Also remember that you have the right to remain silent even with a probation officer about violations they may allege.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any particular matter you should consult an attorney directly.

Leave a Comment » | Uncategorized | Tagged: , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Probation Conditions

November 22, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

texasdefensefirm.com

When you’re on probation in Texas, you are given a host of “terms and conditions” of probation (otherwise more formally known as “community supervision.”).  Those terms and conditions comprise the laundry list of everything you’re responsible for doing (or not doing as the case may be.)

Common examples of terms and conditions of probation are community service hours and paying off costs and fines.  Usually the nature of the underlying case is reflected in some of the probation requirements.  For example, in a theft case the prosecutor may recommend an anti-theft class and prohibition from entry into a store where the theft occurred.

For DWI probation, the legislature has made several requirements which must be completed.  Examples are attending a victim impact panel and going to a DWI class.  Recently the legislature has added provisions for drunk driving probation depending on the blood alcohol level of persons arrested.  In cases where the blood or breath test is over a 0.15, a deep lung device must be installed on the vehicle for at least 1/2 of the probation period.

Drug offenders are generally required to give random urinalyses and it is not uncommon for probation on drug and alcohol cases to be fairly intensive.  In some extreme cases (felonies), the Judge can order a person to go to county or state-run in-patient rehabilitation which can take upwards of a year to complete.  Even though the program is essentially prison — it is done as a “pre-requisite” of probation.

It is a safe assumption that a violation of the laws of the State of Texas or any other state can trigger a revocation.

A probation officer does not determine whether you have violated your probation (regardless of what they tell you).  They do have a lot of power, however, in a revocation proceeding.  Usually it is the probation officer that can trigger the violation to be heard by a judge by suggesting the prosecutor file a “motion to revoke” or “motion to adjudicate” in deferred adjudication cases.  The judge determines whether there has been a violation and it is a much lower standard of proof than would normally be at trial.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice about any situation you should always contact an attorney directly.

Leave a Comment » | Uncategorized | Tagged: , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.