Violation One Dirty Test Can Do It

Verified Credentials

Reggie & Njeri London
Co-Founding Partners

Texas Bar verified. Reggie London (Texas Bar No. 24043514) and Njeri London (Texas Bar No. 24043266) are the co-founding partners of L and L Law Group, PLLC — based at 5899 Preston Rd, Suite 101 in Frisco, Texas (Collin County), with many 5-star Google reviews, and available 24/7 for criminal defense consultations.

Why One Test Is Enough

When a judge in Collin, Denton or Dallas County places you on community supervision, the order lists your conditions. Texas Code of Criminal Procedure art. 42A.301 gives the court broad power to set them, and almost every order includes two that matter here: no controlled substances unless a doctor prescribed them, and drug testing whenever you are told to. Those are court orders, not suggestions.

There is no "three strikes" rule in the statute. One positive result is a violation, and one violation is enough for the State to file. Whether it actually files is a judgment call. Many probation departments handle a first positive in-house with a sanction and more frequent testing. They are not required to, and a positive early in your supervision or stacked on top of other problems (missed appointments, unpaid fees, skipped classes) is far more likely to end up in front of the judge.

The same is true on deferred adjudication, where the stakes are higher because no sentence has been set yet. More on that below.

How the Process Unfolds

The path from cup to courtroom is predictable.

1. The probation officer documents it. The result goes in your file, along with anything you said about it. You will often be asked to sign a form admitting use. That form matters.
2. The officer decides what to do. Either an internal sanction or a violation report to the prosecutor, which usually lists every alleged violation, not just the test.
3. The prosecutor files a motion. On regular probation it is a motion to revoke community supervision. On deferred adjudication it is a motion to adjudicate guilt. Both fall under Chapter 42A of the Code of Criminal Procedure.
4. The judge may sign a warrant. Article 42A.751 allows you to be arrested for violating a condition. Some courts issue a summons instead, especially on a first violation where you have been reporting and cooperating. If you are arrested, whether a bond is set is up to the court.
5. The hearing. Judge alone, no jury. The State typically calls your probation officer and offers the test records. You can present evidence and witnesses, and you can testify or stay silent.
6. The ruling. The judge decides whether a violation was proven and, if so, what happens next.

Your Rights at the Hearing

Two United States Supreme Court cases set the floor. Morrissey v. Brewer, 408 U.S. 471 (1972), held that revoking parole requires basic due process. Gagnon v. Scarpelli, 411 U.S. 778 (1973), applied the same protections to probation. Together they mean you are entitled to written notice of what you are accused of, disclosure of the evidence against you, a chance to be heard in person and to bring witnesses and documents, the right to confront and cross-examine the witnesses against you unless the judge finds good cause to limit that, a neutral decision-maker, and a statement of the reasons for the decision.

Texas law adds a hearing under art. 42A.751 and the right to a lawyer at that hearing, including an appointed one if you cannot afford to hire one.

What you do not get is a trial. The State does not have to prove the violation beyond a reasonable doubt; the burden is a preponderance of the evidence, meaning more likely than not. That lower bar is why a signed admission form or an offhand comment to the officer can decide the whole case before you ever see a courtroom.

Where Positive Tests Get Challenged

None of these is a guarantee. They are the questions a lawyer asks about every positive result, and sometimes the answers matter.

• Screen or confirmation? Instant cups and other immunoassay screens are presumptive. Laboratory confirmation by a different method is the standard for calling a result positive. A screen alone is a point to raise.
• Chain of custody. Who watched the sample given, who sealed and labeled it, who transported it, and whether the paperwork covers every step. Gaps are not automatic wins, but they are cross-examination.
• Prescriptions. A valid prescription for the substance, or for a medication that produces the same metabolite, is the most common explanation. Bring the bottle, the pharmacy printout and the prescriber's name. Many orders require you to report prescriptions to your officer in advance, so check whether you did.
• Dilute is not positive. A "dilute negative" means the sample was too watered down to read, not that a drug was found. Some departments treat repeated dilutes as a violation, but a single dilute and a single positive are different things. Know which one you got.
• Timing and cutoff levels. Some substances clear slowly. A positive shortly after supervision begins may reflect use before the order took effect; declining levels across tests can show that.

What to Do the Day You Find Out

1. Call your lawyer before you discuss it with anyone. If a court-appointed lawyer handled the original case, that representation may not carry over. Ask.
2. Say this to your officer, and nothing more: "I understand. I'd like to speak with my attorney before I discuss this or sign anything." Say it calmly, then stop talking.
3. Do not stop reporting. Missing your next appointment turns one alleged violation into two, and the second one is easy to prove.
4. Gather your records. Every current prescription, recent pharmacy records, your doctors' names, and any paperwork the office gave you about the test.
5. Write down a timeline the same day. The date and time of the test, who collected it, what kind of test it was if you know, what the officer said, and what you said.
6. Keep every other condition perfect from today. Classes, fees, community service, curfew. What you do before the hearing is evidence too.
7. Ask your lawyer about an independent retest. A fresh lab sample or a hair test can sometimes help. Timing matters, so ask before you act.

What Not to Do

• Do not argue with or accuse the probation officer. Their notes become the State's exhibit.
• Do not sign an admission form without your lawyer reading it. Often that signature is the State's entire case.
• Do not move, go quiet or skip court. A warrant plus a failure to report is worse than the test.
• Do not try to beat the next test with products, someone else's sample or a device. Texas law treats falsifying a drug test as its own offense under the Health and Safety Code.
• Do not post or text about it. Assume anything you write can be read aloud in court.
• Do not quit treatment or counseling. Staying in the program helps on every possible outcome.

The Range of Outcomes

Nobody can tell you in advance where your case will land; anyone who promises to is guessing. The outcomes run along a range.

• Handled in-house. A warning, more frequent testing, an extra class. No motion is filed.
• Motion filed, resolved by agreement. Modified conditions such as outpatient treatment, added testing, more community service, a longer supervision term, or a short period in county jail as a condition of continued probation.
• Residential treatment. In felony cases the court can order a term in a Substance Abuse Felony Punishment Facility as a condition of supervision.
• Revocation of regular probation. The judge can order you to serve the original sentence, or a shorter one.
• Adjudication of guilt on deferred. The judge finds you guilty and can sentence you anywhere within the full punishment range for the original offense, not just the probation term you agreed to. That is why one test on deferred adjudication deserves more attention, not less.

What moves a case along that range: the substance, how far into supervision you are, everything else on the motion, your criminal history, and what you did between the test and the hearing.

If You Are on Bond, Not Probation

Judges in North Texas routinely make drug testing a condition of pretrial release. A positive result on bond is not a probation violation, but it gives the prosecutor a reason to ask the court to revoke or raise your bond. If the judge agrees, you can be re-arrested and held until a new bond is set, often with tighter conditions such as a monitor or treatment. Article 17.15 of the Code of Criminal Procedure lists the factors a judge weighs in setting bail, and your conduct on release is part of that picture.

It also hands the prosecutor new information in your pending case. The same rules apply: lawyer first, keep every court date, keep testing, and explain yourself to no one but your attorney.

About the Authors

Njeri London

Co-Founding Partner

Texas Bar No. 24043266. Admitted: TXND, TXED, 5th Circuit. Thurgood Marshall School of Law. Focus: Fourth Amendment motion practice, drug-crime defense, federal cases. Verify on Texas Bar

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Reggie London

Co-Founding Partner

Texas Bar No. 24043514. Former Dallas County Assistant District Attorney. Extensive felony trial experience including DWI dockets. Verify on Texas Bar

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