Can I Be Arrested if I Fail a Drug Test?

Hands in Handcuffs

More and more employers and businesses are using drug tests as a pre-employment screening tool, to weed out candidates they deem to be unfit. Some employers use periodic or random drug tests to regularly check up on employees, meaning, once you’re hired, the intrusions into your privacy can continue.

Additionally, due to a 2002 ruling by the Supreme Court, middle and high schools can use participation in extracurricular activities as an excuse to conduct random drug tests on students.

Another place drug tests are common is in the criminal justice system. Submitting to regular or random drug tests is often a condition of parole or probation, and a clean test can mean the difference between freedom and a return to incarceration.

While passing a drug test is always in your best interest, you’re probably curious as to if you fail a drug test, can you be arrested? This article will outline the possibilities and consequences of failing a drug test for a job or something else.

When Do You Have to Take a Drug Test?

One of the most common reasons to take a drug test is for a pre-employment screening. Nearly all government and public jobs will test you, but private employers use drug tests during pre-employment screening for a number of reasons—chiefly because they’re very likely to get federal and state incentives to conduct drug tests.

Insurance companies will also provide financial breaks to companies that drug test. Certain occupations are required to drug test as well, such as firefighters or bus drivers, due to concerns for public safety.

While companies are free to set their own guidelines and standards for drug testing, most tend to follow the guidelines put forth by the Substance Abuse and Mental Health Services Administration. This is done to protect from lawsuits.

Test Tubes in a Laboratory

Drug tests might also be ongoing, as required by your employer. Many workplaces institute random drug tests for individual employees or will periodically drug test their entire staff. Another time drug tests might be mandated by the employer is after you’ve been on a significantly long vacation.

If you’ve been involved in an accident involving injury to persons or damage to equipment, you may be drug tested, as well, by companies, in an attempt to shift blame and responsibility and avoid having to pay claims if the accident was caused by intoxication or impairment due to alcohol or drugs.

Another time when a drug test might be required is at school if you’re a student in a middle school, high school, or college, and participating in extracurricular activities like sports. In middle school and high school, the tests are done to discourage students from using drugs. The thought is that by hanging the possibility of random drug testing over students’ heads, they will be more able to resist the peer pressure to do drugs, due to the possibility of consequences.

In college, with college athletes, drug tests are performed in accordance with NCAA guidelines, to ensure collegiate athletes aren’t using performance enhancing drugs, in addition to illicit or street drugs.

Probation and parole are common times when one has to submit to a drug test. Regular drug tests might be part of your schedule, and your parole officer or the probation department will usually reserve the right to have you submit to a drug test at any time. Parole and probation will attach these conditions to their terms for a number of reasons.

The state believes that drug use is an obstacle for an individual’s successful rehabilitation and reintegration into society, and, as such, will use failing a drug test on probation as a hammer to return you to incarceration or institute stiffer penalties and punishments upon you.

Failing a Drug Test

If you have an upcoming drug test, or you’re facing down the possibility of failing one, you most likely have a number of questions running through your head. Can you be arrested for testing positive for drugs? Can you go to jail for failing a drug test for a job? These concerns and more might be weighing heavily on you. Well, depending on the reason for your drug test, you may have less cause to worry. Different drug tests carry different consequences for failure—some minor and some more severe.

A pre-employment drug test, if failed, will usually result in the company declining to hire you. It’s very unlikely that you would experience any consequences beyond that. Companies are under no obligation to share the results of a drug test with any entity other than themselves and, in many cases, would be legally unable to do so even if they wanted to.

Angry Man Shaking His Fist

All states and some federal agencies have laws in place to protect the privacy of the individual, so a failed test usually goes no further than the human resources department of that company.

Some employers may be required to report the results of your drug test to an outside agency, such as the Department of Motor Vehicles or the unemployment office, but this should have no legal repercussions.

When currently employed and taking a drug test, the consequences for failure depend on a number of factors. The reason for the test, your company’s internal policy regarding drug tests, the length of time you’ve been employed, and your position within the company could all affect the aftermath of a failed drug test.

Most often, failing a drug test results in a separation of employment from the company, but, again, these results will usually only stay within the company, and you’re very unlikely to suffer any legal consequences. Some employers may allow a second test after a period of time, and some employers may use a failed drug test to send you to rehab or otherwise provide assistance or counseling with addiction, usually on the condition that your continued employment depends upon it.

In the public school system, a failed drug test could have a number of consequences. Notification of your parents, being kicked out of any extracurriculars, being put into intervention or treatment programs, and academic probation are all likely consequences of a failed drug test.

When in college, participating in NCAA sports, the penalties for failing a drug test are more severe, as prescribed by NCAA rules. Failing a first drug test for a banned, performance-enhancing substance results in a loss of a year of eligibility and a 365-day suspension from competition. A second positive test results in loss of all remaining eligibility. Illicit substances result in a ban from competition for half the year, and a second positive test results in the loss of an entire year of eligibility, the same as if you had tested positive for banned substances.

Failing a Probation Drug Test

Man Getting an Injection

Probation and parole drug test failures, of course, have higher stakes. As the terms of parole and probation are directly connected to incarceration, there are, naturally, legal consequences for failing.

Failed drug tests and parole or probation violations will be used by the court system to determine whether or not to send you back into prison. Your probation officer will write a violation report and send it to a judge, who will then decide whether or not you receive only a warning, or get returned to incarceration. The judge’s decision will be based on the number of failed tests or other violations, and any other factors the judge deems necessary and relevant in your specific case.

While failing a drug test is definitely not the best outcome of having to take one, the possibility of suffering legal ramifications is usually distant, at best. It is, of course, in your best interest to pass one by any means necessary, but you can remain confident that your freedom and liberty are unlikely to be unjustly stripped from you.

Posted by A. Shapiro
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