Positive Drug Test? That Might Not Be Enough to Revoke Your Probation.

By: John Guidry

“Say What?”

That is the reaction most people have when I tell them that a positive drug test doesn’t automatically mean they are going back to jail.

Defendant on probation? Check. Defendant tests positive for marijuana? Check. Defendant not guilty of Violation of Probation (VOP)?

The devil is in the details. Let’s face it: in Orlando, a large percentage of probation violations are based upon a positive drug test for marijuana. So, why can some folks get away with this while others cannot?

Failed a drug test on probation?

Don’t admit to anything before speaking to a lawyer. Call John today at (407) 423-1117.

The Legal Breakdown: Melton v. State

Let’s look at the case of Melton v. State, 63 So. 3d 856 (Fla. 1st DCA 2011).

• The Situation: Melton was on probation. A drug test was administered, and the results came back positive for marijuana.
• The Hearing: At his violation hearing, a probation officer testified that the test registered positive. However, this officer was not the one who actually administered the test.
• The “Fatal Error”: The State failed to call the officer who actually conducted the test to testify.
• The Result: The First District Court of Appeal overturned the VOP conviction.

Why? The Hearsay Rule. The court found that the testifying officer’s statements regarding the test results were merely hearsay (testimony based on what someone else said or wrote). While hearsay is admissible in a VOP hearing, Florida law is clear: Hearsay cannot be the sole basis of the violation. Since the State had no other evidence (like an admission from Melton or the actual tester’s testimony), the violation could not stand.

John’s Takeaways

From a criminal defense attorney’s perspective, this case highlights a critical strategy for fighting VOPs in Orange and Seminole County.

• Silence is Golden: The key to this case was that Melton never admitted to smoking weed. If he had told his probation officer, “Okay, yeah, I smoked a little,” that admission would have been “non-hearsay” evidence. The judge would have upheld the violation based on his confession alone.
• Make the State Do the Work: The State often gets lazy in VOP hearings. They send one officer to read a file. We object to this as hearsay. If they can’t produce the right witnesses (the lab tech or the collecting officer), we can often get the violation dismissed.
• Don’t Do Their Job for Them: I am not suggesting people lie to probation. I am merely pointing out that honesty—while a virtue—is often the only evidence the State has against you. If you admit to the violation, you remove their burden of proof.

Fight the Violation

Just because a test strip turned a certain color doesn’t mean your freedom is gone. Procedural defenses like the hearsay rule can save you from prison, but only if you have an attorney who knows when to object.

Call me at (407) 423-1117. Let’s challenge the evidence.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.