Simple Drug Possession Charge: Should I Take a Drug Test?

Attorney Answer

Whether you should take the drug test depends entirely on who is requiring it, and that hasn't been answered yet -- a court-ordered test tied to your pending case works very differently than one requested by an employer or school.

Because you have a pending simple possession charge and have already described using cocaine, any drug test connected to that criminal case could produce evidence the prosecution uses against you. What it does not do is trigger your right against self-incrimination. In Schmerber v. California, 384 U.S. 757, 761 (1966), the Supreme Court held that the Fifth Amendment privilege protects an accused "only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." A urine or blood sample is physical evidence, not testimony, so the privilege gives you no ground to refuse a test. Do not refuse one on that basis -- if a court has ordered the test as a condition of release, bond, or the criminal case itself, refusing to comply can cost you your bond or count as a supervision violation. What you say is a different matter: statements about your drug use are testimonial, and the privilege does cover those. A test requested by an employer, school, or other non-criminal party works differently and doesn't carry the same court-enforced obligation, though it can still affect that separate relationship.

Given that a criminal charge is already pending, this isn't simply a logistics question -- it's a decision that could affect your criminal case, and it should be made with a defense attorney's input before you take any test connected to your charge.

What you can do:

1. Confirm, in writing if possible, whether the specific test being requested is court-ordered or requested by a non-criminal party such as an employer or school.

2. If it is connected in any way to your pending possession charge, contact a criminal defense attorney before submitting to the test.

3. Avoid discussing your drug use or this decision with anyone other than your attorney until you've gotten legal advice.

4. If the test is unrelated to your criminal case, weigh the separate consequences of that specific request on its own terms.