Michigan Criminal Defense Lawyer Blog
In other Blog articles about Probation Violations, I have pointed out that the person facing the Violation faces an uphill fight. By and large, a person gets Violated for doing something they shouldn’t have (like pick up a new charge or test positive for drugs), or for NOT doing something they were supposed to (like fail to show up for a urine test, or “drop”).
This article will focus specifically on those cases where a person has missed a urine test. If this applies to you, hopefully you’re reading this before you ever receive notice from the Probation Department of a Violation or Show Cause (another fancy name for Probation Violation).
I say that because there are some things to do to minimize the damage caused by a missed “drop.” If a person has waited until they hear from the either the Court or the Probation Department, the ability to take protective action diminishes considerably.
To begin with, it really doesn’t matter where the urine test was to be provided. Many Probation Departments have a person go take their tests at a “facility” such as JAMS, Drug Testing Services, Inc., or Michigan Court Services, Inc. JAMS is by far the most popular facility in the Tri-County area. Other Probation Departments will administer their own breath or urine tests, and send the urine out to a laboratory for analysis. Some Courts even order people to report to their local Police Department to have a breath test done on a daily basis, but that’s not the subject of this article.
Whatever the scheme, a miss is a miss.
In my practice, I hear all kinds of stories about how a person called their Probation Officer to explain why they missed, or called beforehand to tell them they couldn’t make it. Sometimes, a person will tell me that they left a message for their Probation Officer explaining the situation, and because the Probation Officer didn’t call back, they assumed that everything was okay. Other times, the person tries to contact the facility to “make up” the missed test, only to be told that there’s nothing that can be done, and the Probation Officer has been notified of the miss. While many of these stories are true, we come back to the same point made above: a miss is a miss.
And that point really hits home when that miss is the reason for a Probation Violation.
So what should a person do when they miss a test?
Get another, right away. Even if a person has to go to another Clinic, like Clinton Counseling in Mt. Clemens (2 Crocker Boulevard, Mt Clemens, MI 48043-2558 (586) 468-22662), or try to have one done at another substance abuse treatment place, they should do so as soon as possible.
It is a given that Judges treat missed tests as positive tests. Let’s face it, while there may be legitimate reasons why a person missed, it is well know that people will try and deal with that situation later when they know that any given test will turn up positive. Thus, many Judges will even forewarn a Defendant that a missed test will, in fact, be treated as a positive test.
If a person can at least come to Court and show that within hours of the missed test, they took one, and it came back clean, they have a leg to stand on while in Court. This doesn’t change the fact that they missed a test, and many Judges will point out that the terms of the order of Probation were set by the Court, and did not contain any “if you miss, then you can go here, instead” provisions.
Still, when I represent someone who has missed a test or tests, if I can at least show that later that same day, or early the next, my Client had the foresight to go and get a test done, and that test is clean, it at least begins to remove some doubt about the person’s not being clean, and allows me to work on the Judge to reset my Client’s Probation without locking them up or extending their Probationary term.
Of course, there will always be cases where the person who missed the test left that message for their Probation Officer and who, not having heard back, assumed they were alright. Even if they only find out that there’s a problem when they receive notice of a Violation, it cannot hurt their cause to go and get a urine test right away.
Although the half-life of metabolites of different drugs vary widely, it is generally understood that marijuana stays in the system for 30 days. This means that if a person is to provide a urine sample which includes testing for tetrahydrocannabinols, the active ingredient in marijuana, and even if they miss a test, another test within a week or two (or even longer) still has some evidentiary value.
The point here is that no matter what, if a person misses a urine test, they should go and get a substitute test done somewhere as soon as possible, if not right away. As I noted above, doing this cannot hurt, and usually helps.