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Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 32324
Experience:  Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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My son is on probation for a DUI charge last year. He failed

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My son is on probation for a DUI charge last year. He failed his drug test for pot this month. Will he go to jail?

JD 1992 :


Hello and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.


JD 1992 :

There is no way to give you a yes or no answer on this. I am willing to discuss it with you if you would like, but no one can give you an absolute yes or no.

Customer:

He has an appt with his atty this week. His court date is late in June.

Customer:

I thought I'd ask if it was mandatory jail. He doesn't give it a priority.

JD 1992 :

The answer to this question depends on the judge. Some give them one chance and on the second they will revoke probation, others are more lenient.

JD 1992 :

What he probably wants to do is talk to his lawyer about offering to get some kind of substance abuse counseling, more intense than what is standard, to try and avoid jail.

Customer:

Well, he didn't hurt anyone. He was actually under the DUI limit, but Ohio can charge you now even if under.

JD 1992 :

But no, jail isn't mandatory.

JD 1992 :

A lot off states are lowering their limits.

Customer:

Well substance abuse counselling might be what he needs. I wish he would have got his act together before this happened. This type of conseling is not covered by insurance.

JD 1992 :

There may be some free counseling available through the state.

JD 1992 :

There often is.

JD 1992 :

If he avoids jail this time then the judge will almost certainly send him if there is any kind of further problem, even minor.

Customer:

Well maybe he needs to promise something or even go to jail. Hate to say it.

JD 1992 :

He is definitely pushing his luck at this time. It sounds like counseling or some form of rehab may be the best thing for him.

JD 1992 :

How old is he?

Customer:

All his friends are graduating from college, and he is still screwing around with pot. He is 24.

Customer:

He is still on my insurance, until 26.

JD 1992 :

He definitely needs to take this seriously.

JD 1992 :

The lawyer may even want to suggest he do a few days or a week in jail and then get reinstated.

Customer:

Yes, I believe that is what the judge will say. That is what I say. He had 1 violation for not getting a requirement done on time.

Customer:

What does reinstated mean?

JD 1992 :

Put back on probation.

Customer:

What if he is going to counseling before he goes to court. Would that help. At least that is covered by insurance.

JD 1992 :

Talk to the lawyer about that.

JD 1992 :

Sometimes it is better to start and sometimes not, depends on the judge.

Customer:

I know he won't go to a rehab place to stay there. Can the lawyer ask for another test, if there is anything irregular with his lab result?

JD 1992 :

Yes, although the judge doesn't usually take the request very seriously because he hears it so much. If the test was irregular it is worth a shot. What you have to be careful of is that the judge doesn't think he was taking something to clear up before the test.

Customer:

I know that he was taking something to clear up. I don't know what they found on the test, only that he failed.

JD 1992 :

Sometimes it shows up as being adulterated.

Customer:

He works as server in a nice restaurant. He drinks and not supposed to and he smokes pot. Not uncommon for young people, but you are not supposed to do that when on probation. He feels he should not have been charged, and has an attitude. That attitude will land him in jail.

JD 1992 :

It absolutely will.

Customer:

Well, we will find out at the end of the month. If he needs to go to jail, then so be it. Thanks for your help. He should probably be in counseling for the attitude, more than the pot.

Customer:

I will give you an excellent rating thanks.

JD 1992 :

That wouldn't hurt, but it may all be connected.

JD 1992 :

Thanks much and best wishes to you and your son.

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