Failed a Drug Screen on Probation?

Failed or missed a drug screen? Let’s look at your options.

Call Wynn. (317) 832-1182

Free consultation · Calls answered 24/7

By Myekeal Wynn, Attorney at Law

A positive or missed drug screen is one of the most common reasons a probation violation gets filed. It is also one of the most contestable. Before anyone decides you violated, the State has to prove it in open court, and you have the right to challenge the evidence.

What the State has to prove

The State must prove the violation by a preponderance of the evidence. The evidence has to be presented in open court, and you are entitled to confront and cross-examine the witnesses and to have a lawyer. Ind. Code § 35-38-2-3(f).

What I challenge

• The collection. Who collected the sample, how, and whether the procedure was followed.

• Chain of custody. Every hand the sample passed through, and whether the paperwork accounts for it.

• The type of test. An instant cup is a screening tool. I ask whether the result was confirmed by a lab.

• Prescriptions and other explanations. Lawful medications and other substances can produce a positive result.

• Dilute and missed screens. A dilute result or a missed call-in is not the same as a positive test, and the reason matters.

• The records. I get the lab reports and the testing records, not just the probation officer’s summary.

What to do right now

• Keep reporting and keep testing. Clean screens after the filing are some of the best evidence you can have.

• Get into treatment now if you need it. Do not wait for the judge to order it.

• Gather your prescriptions and a list of everything you take.

• Do not sign an admission before you talk to a lawyer. The law requires that you be offered the chance to talk to an attorney before you waive your hearing. Ind. Code § 35-38-2-3(e).

What the judge can do

If the judge finds a violation, the options are to keep you on probation with or without new conditions, extend probation by up to one year, or order all or part of the suspended sentence. Ind. Code § 35-38-2-3(h). Jail is not automatic.

What I bring to the fact-finding hearing

At the fact-finding hearing, which the court may call a dispositional hearing, the judge decides what happens to you. I bring a treatment plan, letters from your employer, proof of payments, clean screens since the filing, and emails with your case manager.

For the full picture, including deadlines, your rights, and warrants, see my probation violation page.

Common questions

Will I go to jail for one failed drug screen? Not automatically. The judge has options short of jail, and I fight for the least restrictive one.

Can I challenge a positive result? Yes. The State has to prove it, and the testing process can be questioned.

What if I missed a screen instead of failing one? A missed screen can be alleged as a violation, but why it was missed matters. Bring any proof of the reason.

I have a prescription. Does that matter? Yes. Bring it. A lawful prescription can explain a result.

Is there a warrant because of this? There may be a summons or a warrant. I can check and move to recall a warrant.

Let’s get ready for your hearing

Call Wynn. (317) 832-1182

Past results do not guarantee a similar outcome. Contacting Wynn Law does not create an attorney-client relationship.