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If you have a Vop while on felony probation and you fail a drug test in court what is the chance of having probation reinstated?

Panama City, FL |

My husband is on felony probation for arson and burglary. He got a technical violation for leaving the state without permission and while at court for the VOP he failed a drug test which is another VOP. This is the first time he's been in trouble since being on probation and this is also the first drug test he has failed in 4 years. Do you think the judge may have mercy and reinstate his probation or is he looking at prison time?

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Attorney answers 4


Your Judge is the ultimate decision maker. However, the balance rests in your husbands favor. As I read it, your husband has been in compliance for 4 years without a violation. This will demonstrate that he is not a habitual violator who simply cannot abide by Probation Rules and therefore no option exists other than a prison sentence. That being said, he has violated two times and will be sanctioned in some manner. The Judge will look at the totality of circumstances(i.e. other criminal history, current employment and family status, and overall compliance with probation. In my estimate, he will likely avoid prison time and receive a sanction from community service to a few weekends in the county jail. Get a good lawyer to put your husbands best foot forward when he goes to court. This can make all the difference!

Tim Martin


It has been my experience that, absent unique circumstances, judges are not very forgiving on probation violations on serious felonies. The reason is because being placed on probation is a "second shot" and the judge and the State Attorney's Office were willing to take a chance on your husband by placing him on probation. Again, probation is a privilege and one when violates, then it's as if one is "thumbing his nose" at the judge, the State Attorney and the criminal justice system. The probation violation of a dirty urine is easier to deal with since one can always ask for drug treatment to be part of any probation reinstatement, but leaving the state without permission is more problematic.

My immediate concern is that he was placed on probation originally for two fairly serious felonies, and it will take one amazing argument to get his probation reinstate and/or avoid prison time. Off the top of my head, I'm confident he scored prison based on the two original charges, and "Bravo" to the lawyer that got him probation the first time.

Best of luck


A couple of more insights:

1. Leaving the state is not a "technical" violation -- it is a substantive violation. Not paying court costs in a timely fashion is a "technical" violation.

2. Failing a drug test, another example of a substantive violation, does not make this case any easier for your husband. Rather, despite not failing a drug test over the course of four years, he nonetheless failed this drug test.

The rest will depend upon how the judge and the prosecutor perceive these violations, in lieu of the charges for which your husband is being supervised. My advice: hire an attorney with a stellar reputation in Bay County, and see whether or not he/she may be able to work out a gem of a result.

Derek Brett
The Brett Law Firm, P.A.
Orlando, Florida
Pensacola, Florida


Knowing our local judges and prosecutors in Panama City like I do, his biggest problem is the leaving the State aspect. Basically, he will be deemed to have absconded (or disappeared/run) from probation which is probably the single biggest 'no-no' a probationer can do.

Considering what he is on probation for, the State has their hooks into him pretty deep. Honestly, it may be difficult for him to avoid prison with that allegation of absconding. You really need to hire a good, plugged in local attorney to handle this for him. Hopefully he will have a good explanation or defense to the absconding. The positive UA is nothing to worry about compared to the absconding. Good luck.