the person was given 5 years probation, checks in once a month with home visits, random drug testing, along with court costs, restitution, community service, and probation fees. having almost completed one year of probation, the past month a drug test results showed they were diluted. the probation officer called and said that he did not fail the test but because it was diluted he will need to come up with $250 to pay for a polygraph that the judge said he would like to administer. are polygraphs admissible in court? given the situation is it legal for them to make him take one or can he refuse? if so what are the consequences of refusing or taking it and failing?
Criminal Defense Attorney
When this person went on probation, he agreed to all the terms of probation. One of the terms is to follow any terms that probation deems to be appropriate. Also, this is the court's probations, so if the court wants the polygraph the court can order it. Failing to follow the court's orders could result in a revocation and thus a return to jail and or prison. Remember, this person has already pled guilty. It does not matter that polygraphs are not admissible for trial purposes, they judge may just want to know what is going on. It will be up to the judge what will be done if the polygraph fails. She has to sign the order to revoke the probation. She can recommend to revoke, do jail therapy, modify the probation, or do nothing...
My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed to practice in the appropriate jurisdiction where the legal issue may be filed or in the state where the law applies
DUI / DWI Attorney
Your case is an example of why probation is so dangerous. You can violate on the 364th day of a year probation, and have a Motion to Revoke filed. Ordinarily polygraph tests aren't admissible at trial, however they are used by the probation department all of the time, especially for sex offenders. Urine tests which appear to be diluted raise a red flag. If the amount of creatinine in the urine is abnormally low, the probation department suspects intentional dilution to conceal drugs. Dilution can occur by consuming too many liquids, especially liquids that contain diuretics ,like coffee, soda, and certain medications. It's summertime here in Houston where I practice, and people, especially those who work outside, drink more fluid than they normally would. It's possible this could present itself as dilution. Once a person pleads guilty and receives probation, they agree to abide by all reasonable terms and conditions of probation. Being asked to take a polygraph is unfortunately a reasonable condition. The fee for the polygraph will be added to the multitude of fees the probationer is expected to pay. Once a Motion to Revoke is filed, a Judge has the option to modify, extend, or revoke the probation. They can extend the term of probation and add additional conditions like drug counseling, "jail therapy", and any other "reasonable" terms and conditions.. You will need the help of a local lawyer who is familiar with the judge and the policies of that court. The option of getting the State to agree to dismiss the Motion to Revoke is no longer an option since the Judge is involved. Try for an "unsatisfactory termination" of probation. This is an option when the term of probation is near the end and all other terms and conditions have been met. Of course,the easiest option is to take the polygraph, pass, and get on with your life. But be warned, they can ask you other questions besides whether you diluted your urine.
My answer is based upon the limited amount of information available at the time of writing. If possible, hire an attorney from the county where this offense occurred.
Criminal Defense Attorney
I agree completed with Mr. Butler's thorough answer. He has no choice - he must take the polygraph. The diluted urine alone could result in the revocation of his probation.