CAN A PERSON BE ARRESTED FOR POSSESSING DRUGS WHEN THEY FAIL A DRUG TEST WHILE ON PROBATION?

CAN A PERSON BE ARRESTED FOR POSSESSING DRUGS WHEN THEY FAIL A DRUG TEST WHILE ON PROBATION?

I don’t think you can be arrested for failing a drug test for an underlying drug offense per se, although possessing drugs is implicit with the failed test.  Louisiana jurisprudence prohibits the prosecution from offering failed drug tests as evidence of drug possession in pending criminal cases so I think the reasoning extends to whether charges can be brought.  After all, “false positives” do occur.  

But a person who fails a drug test while on probation can be remanded or arrested for other reasons. Should “remaining drug free” be a condition of probation, you could be arrested for violating the conditions of your probation and be subject to a potential revocation of your probated sentence. Normally, a failed drug test alone will not justify a full revocation and can be treated as a “technical violation” causing the state probationer to serve 90 days in jail in lieu of revocation.  

The Court could also modify conditions of probation and mandate drug treatment.. But some judges have a short leash with specific probationers either due to the nature of their case, prior criminal history, or behavior while charges were pending.  Nevertheless, revocation does occur.  We recently had a client on federal supervised release who failed four drug tests and refused his supervising officer’s offer of enrolling in an inpatient treatment program.  This course of conduct gave the Court no choice but to revoke his supervised release and impose an 11-month sentence upon someone who tested positive for marijuana four times.