M.J. was placed on CORE probation in St. Lucie County on 8/4/09 for disorderly intoxication. This was a first offense. The Court, therefore, withheld adjudication, placed M.J. on probation, required a letter of apology to a police officer, and completion of a substance abuse course. Since M.J. lived in Palm Beach County, she was to report in by mail.

At her probation officer’s request, M.J. submitted to drug testing 29 days after being placed on probation. She tested positive for cannabis. She brought this matter to the attention of her substance abuse counselor, who immediately drafted a letter to the probation officer. The counselor attempted to explain to the probation officer that the positive urinalysis could have been residual from marijuana use before being placed on probation. The counselor’s letter further explained that, under many circumstances, marijuana users will test positive for six weeks or more after they last used.

Unfortunately for M.J., the counselor’s letter arrived after the probation officer submitted an affidavit for VOP and a warrant issued. The probation officer certainly wasted no time in promptly seeking to violate M.J.’s probation. Curiously, the probation officer continued to accept M.J.’s monthly probation reports and financial payments. M.J. served the entire period of probation, paid all of her financial obligations, completed her substance abuse course and letter of apology. She was never arrested on the VOP warrant and did not learn of its existence until after she was “off” probation.

M.J. retained Jeffrey H. Garland on 9/28/11 to assist her in dealing with the warrant. With the exception of this relatively minor problem, M.J. had never been in trouble. She was, of course, fearful of spending time in jail waiting for her case to be heard. Mr. Garland recognized that M.J.’s situation was categorically different than most probation violations. The only reason for violation was insufficient to prove drug use after being placed on probation. Based on these unique circumstances, Mr. Garland filed a motion to recall and set aside violation of probation warrant. He attached proof of each of the circumstances described above. On 10/12/11, within days of receiving the motion, St. Lucie County Judge Phillip J. Yacucci, Jr. issued an order withdrawing the VOP warrant. M.J. was very happy, both because the warrant was resolved, and because she did not have to go through the hell of being arrested and jailed.

Comment

Most people facing a violation of probation give up hope. They quit reporting to the probation officer and make things worse. It is usually far better for the probationer to consult with an experienced attorney to discuss the available options. In this case, the “dirty urine” was insufficient, because there had been no baseline drug test done at the time she was placed on probation. The single drug test was taken during the period of time when the positive result could have been from previous drug use. Without either a baseline test, or a subsequent drug test, there would be no way to establish a probation violation in this case.

Each potential probation violation involves unique circumstances. The best strategy for dealing with a given VOP will depend upon the particular circumstances of the case.