What happens if I fail a drug test while on probation in MN?

What happens if I fail a drug test while on probation in Minnesota? A court may treat it as a violation of a probation condition and, in some situations, revoke the stay and order a person into custody. Minnesota law also says revocation is to be used only as a last resort when rehabilitation has failed (Minn. Stat. § 609.14). For a person with no earlier violation in an open case, the law favors continued rehabilitation over confinement, with exceptions for certain offenses. The sections below explain how that works.

Why a failed drug test can be a probation violation

Probation is a court-ordered sanction involving a period of supervision. It is imposed as an alternative to confinement or along with it, and its purposes include deterring further criminal behavior and giving offenders opportunities for rehabilitation (Minn. Stat. § 609.02).

When a court stays a sentence, it may place a defendant on probation on the terms the court prescribes (Minn. Stat. § 609.135). One common kind of term is a requirement to abstain from controlled substances.

The statute on revocation speaks of a person who "fails to abstain from the use of controlled substances without a valid prescription" in violation of a court condition (Minn. Stat. § 609.14). A valid prescription therefore matters to whether use counts as a violation.

A court may also bar a defendant from using adult-use cannabis flower or cannabis products. This requires a chemical use assessment showing that abstinence is consistent with a recommended level of care (Minn. Stat. § 609.135).

Special treatment for a first violation

Minnesota law states that correctional treatment is better provided through a community resource than through confinement in certain cases. It also says that not revoking probation would not unduly depreciate the seriousness of the violation. Policies favoring probation outweigh the need for confinement when a person has not previously violated a condition of probation or an intermediate sanction in an open criminal case and fails to abstain from controlled substances without a valid prescription (Minn. Stat. § 609.14).

The same protection covers several other first violations, such as failing to abstain from alcohol, possessing drug paraphernalia, missing a curfew, or failing to keep employment (Minn. Stat. § 609.14).

Exceptions for certain offenses

The protection does not apply to drug or alcohol violations by a person under supervision for certain offenses. These are:

• a violation of section 169A.20 (Minn. Stat. § 609.14);

• criminal vehicular homicide under clauses (2) to (6) of the first subdivision of Minn. Stat. § 609.2112; and

• criminal vehicular operation under clauses (2) to (6) of the three subdivisions of Minn. Stat. § 609.2113.

Those clauses involve causing death or harm while driving negligently under the influence of alcohol or a controlled substance, driving with an alcohol concentration of 0.08 or more, or driving with a Schedule I or II controlled substance in the body (Minn. Stat. § 609.2112; Minn. Stat. § 609.2113).

When custody requires a written report

For a person covered by the first-violation protection, the violation does not by itself warrant imposing or executing a sentence. The court also may not direct that the person be taken into immediate custody unless it receives a written report. The report must be signed under penalty of perjury and must show probable cause to believe the person violated probation. It must also establish, by a preponderance of the evidence, that the person's continued presence in the community would present a risk to public safety (Minn. Stat. § 609.14).

If the court does not order custody, it may request a supplemental report from the supervising agent. That report covers:

• the specific nature of the violation;

• the response of the person under supervision, if any; and

• the actions the supervising agent has taken or will take to address the violation.

The revocation process

Outside the protected group, a court that sees that a condition has been violated may revoke the stay without notice and direct that the defendant be taken into immediate custody (Minn. Stat. § 609.14). Here "stay" covers a stay of adjudication, imposition or execution, and a deferred prosecution.

The defendant must then be notified in writing of the grounds alleged for revocation. If the defendant contests those grounds, a summary hearing is held at which the defendant is entitled to be heard and to be represented by counsel. If none of the grounds are found to exist, the defendant is restored to liberty under the court's previous order (Minn. Stat. § 609.14).

Timing can matter as well. If a violation occurred during the stay but the stay has since expired, the probation officer or the prosecutor may ask the court to start revocation proceedings within six months after expiration, and the court may also start them on its own (Minn. Stat. § 609.14).

Alternatives to jail and possible outcomes

In some cases a probation agent must offer the court local options to correct the violation, including inpatient chemical dependency treatment. This applies at a summary hearing when the defendant is a nonviolent controlled substance offender on supervised probation, appears based on a technical violation, and admits or is found to have violated a condition (Minn. Stat. § 609.14).

Intermediate sanctions can include local jail, home detention, electronic monitoring, intensive probation, chemical dependency or mental health treatment, fines, and community work service (Minn. Stat. § 609.135).

If the court finds a violation, what it may do depends on the type of stay:

• Where imposition of sentence was stayed, it may stay sentence again, impose sentence and stay its execution, or impose sentence and order it carried out.

• Where a sentence was imposed and its execution stayed, it may continue the stay with probation or intermediate sanctions, or order the sentence executed.

• Where adjudication was stayed or prosecution deferred, it may continue the stay, with or without intermediate sanctions, or adjudicate guilt (Minn. Stat. § 609.14).

A court may also require up to one year in a county jail or similar local facility as a condition of probation (Minn. Stat. § 609.135).

When court-ordered treatment is not successfully completed at least 60 days before probation ends, the prosecutor or probation officer may ask for a hearing. The court may then change the conditions, revoke probation, or extend probation for up to three years if the treatment is unlikely to be completed in time (Minn. Stat. § 609.135).