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Defending Against Drug-Usage-Based Probation Violation Charges

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test tube

The United States has gone drug-testing mad. (Image re-posted under the terms of the GNU Free Documentation License.)

Probation and parole violation charges often include allegations that the defendant submitted one or more positive drug tests (usually involving a urine test) or that the urine was presumptively positive for drugs if the defendant was unable to produce a glass of urine (which often can reasonably be ascribed to physical health or diet issues, and more often to performance anxiety, particularly if the probation agent is standing behind the defendant to assure the defendant is not trying to submit someone’s clean urine sample; at least one psychological study found that people have more trouble starting to urinate when someone is standing nearby).

Here are a few ideas for defending against allegations of dirty urines:

  • Consider issuing a subpoena to obtain all documents (including notes, procedural rules, and certification of the materials used and the person analyzing the urine) and everyone related to the urine tests.
  • If a dipstick test was used, then a further test needs to be done for accuracy. Some probation offices do not save the dipstick nor urine sample for the defendant to re-test. Such disposal may be sufficient grounds to suppress the urinalysis.
  • If the urine was tested by a chemist, the defendant can challenge chain of custody of the urine,  the testing methods used (including whether the urine got contaminated with other people’s urine or other substances in the lab), and the qualifications of the tester.
  • In Maryland, the drug test results do not come into evidence without live chemist testimony at a hearing to revoke probation or work release where the defendant demands the chemist’s presence to testify at least five days before the hearing. Md. Ann.Code, Cts. & Jud. Proc. art. § 10-914.
  • Toxicologists can be key witnesses and consultants on this. One place to look is Our Criminal Law Practice Areas.

Jon Katz.