Can a Florida Drug Possession Charge From a Failed Probation Drug Test Be Fought?
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Reviewed & verified by A. Jason Velez, Esq.*
Managing Attorney, 1LAW · Last reviewed January 1, 2026
Legal Inquiry
Consumer Legal Issue
My boyfriend is serving time and failed a drug test. They charged him with possession of drugs instead of a failed urine analysis. Is there any way to fight this without him going back to prison?
Attorney Answer
A positive drug test and a new drug possession charge are two different legal problems, and figuring out which one is actually happening to your boyfriend is the key to fighting it effectively.
If he is on probation or community control, failing a drug test is normally treated as a violation of probation under Florida Statute 948.06, not automatically a new crime. A probation violation is decided by a judge rather than a jury, using a lower standard called "greater weight of the evidence," and if the judge finds a violation, the original sentence, including prison time, can be imposed.
A charge of drug possession under Florida Statute 893.13 is different and more serious. To convict him of possession, the state must prove beyond a reasonable doubt that he actually or constructively had a controlled substance, meaning metabolites showing up in a urine test are usually not, by themselves, enough to prove possession of a drug. If he was charged with possession rather than just a technical violation, there is likely some other evidence the state is relying on, such as drugs found on him, in his belongings, or in a place he controlled. Getting a copy of the arrest or probable cause affidavit will show exactly what that evidence is, and that is usually where a real defense starts.
What you can do now 1. Get him a criminal defense attorney immediately, whether a public defender or private counsel, since he needs representation both for any violation of probation hearing and for the new possession charge, which are handled somewhat differently. 2. Request the probable cause affidavit and any lab reports connected to both the drug test and the possession charge. 3. Ask the attorney to examine whether the drug test itself was reliable, including chain of custody and whether a confirmatory lab test was done. 4. Ask specifically how the possession charge is supported, since a positive urine test alone is weaker support for a possession charge than actual drugs being found. 5. Do not miss any court dates. Missing a hearing while these charges are pending can make the situation significantly worse.
This is general legal information, not legal advice. A local Florida criminal defense attorney can review the paperwork and tell you exactly what is being alleged and how strong the case is.
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Frequently Asked Questions
Is failing a drug test the same as being charged with drug possession in Florida?
No. A failed drug test on its own is usually treated as a violation of probation, while a possession charge under Florida Statute 893.13 requires the state to prove he actually or constructively had a controlled substance. If he is facing both, they are separate legal issues with different standards of proof.
Does he have the right to a court-appointed attorney for a probation violation hearing?
Yes, people facing a violation of probation in Florida generally have the right to counsel, including a public defender if they cannot afford a private attorney. The same right applies to the new possession charge.
What happens if the judge finds he violated probation?
If a judge finds a violation by the greater weight of the evidence, the judge can reinstate probation with new conditions or impose up to the maximum sentence originally available for the underlying offense, including prison time. This is why fighting the violation itself, not just the new charge, matters.
