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Aggressive. Experienced.

Chicago Criminal Defense Attorney
Former Cook County Felony Prosecutor

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Is It a Crime to Fail a Drug Test in Illinois?

If you’ve ever been required to take a drug test, you know what a nerve-racking experience it can be – even if you haven’t been taking illicit drugs and shouldn’t have anything to worry about.


You may be concerned about the potential consequences should you fail a drug test. After all, this could be considered evidence that you have been using an illicit substance, right? Isn’t that a crime?


Fortunately, in most cases you will not face criminal consequences for a failed drug test, although you may face consequences with your employer, and potentially be reported to regulatory agencies.


There is one big exception to this, however. If you are on probation or parole, you can incur legal consequences for failing a drug test.


Generally speaking, the civil and legal consequences for failing a drug test depend on the circumstances under which it was administered. Below, we review the consequences you could face for failing a drug test in several common contexts.


Pre-Employment Drug Testing


One of the most common reasons for drug testing is pre-employment screening. Nearly all government and public jobs require a pre-employment drug test, and private employers often receive state and federal incentives for pre-employment screenings, along with financial breaks from insurance companies.


Although individual companies are free to set their own guidelines regarding drug testing and reporting, most follow the guidelines of the Substance Abuse and Mental Health Services Administration in order to avoid lawsuits.


Under these guidelines, should you fail a pre-employment drug test, the result will likely not go any further than the company’s HR department. Although you will most likely be denied employment, this is unlikely to show up on a background check, and even more unlikely to results in criminal consequences.


Chicago Drug Crimes Lawyer

Ongoing Employer-Required Drug Testing


When you are currently employed and fail a drug test, the consequences depend on a number of factors. The reason for the test, your occupation within the company, and the length of time you’ve been employed may all affect the outcome.


In most cases, you will be terminated for failing a drug test, although some employers may allow a second test after a period of time, or provide counseling services for assistance with addiction, usually requiring your participation in such programs to stay employed.


In most cases, a failed drug test with a current employer will go no further than the company. However, some employers may be required to report the results of your drug test to an outside agency such as the unemployment office. Although this has no legal repercussions, it could affect your eligibility for unemployment.


Further, if your next employer runs a very thorough pre-employment background check, it’s possible that this process will reveal that you previously failed an employer’s drug test.


Probation Drug Testing


Mandatory continued drug testing is a condition of most parole, probation, and drug court programs. Failing a drug test in this situation could lead to legal repercussions, and it may also have a negative impact on sentencing for the original offense.


Below, we describe the consequences you could face for failing a drug test on probation. However, all cases are at the discretion of the parole officer, and it’s possible that you could face criminal consequences even for your first failed test.



Depending on the nature of offense that you are on probation for, you may receive a warning for your first failed drug test. However, if you are caught committing a drug crime, you may be sent to prison immediately.


Generally, once you have been issued a warning while on probation, you should absolutely refrain from all other drug use, as you will likely face legal consequences for an additional failed test.


Community Service and Rehabilitation

In some cases, a probation officer will issue community service after the first warning. This is an attempt to rehabilitate the person rather than imposing severe criminal consequences.


However, if this does not help with the defendant’s substance abuse issues or the parole officer believes another program is warranted, the defendant may be sent to a rehabilitation center. Refusing to attend rehabilitation or leaving before completing the program will result in jail time.


Counseling Services

In some cases, the defendant may be ordered to attend counseling, especially if the officer discovers an underlying mental or emotional issue. The idea behind this is that counseling can help identify the root cause of the defendant’s substance abuse problems.


Chicago Drug Charges Defense Attorney

Jail or Fines

In some cases, the probation officer may send the defendant back to jail or impose criminal fines. This is likely in the event of multiple failed drug test, or if the defendant is caught committing a drug crime in addition to the failed test(s). However, this is possible for even the first failed drug test.


In some cases, you could be imprisoned in the county jail. Generally, this is only for a few days or weeks. However, if you were participating in a criminal diversion program, you may be forced to serve out the duration of your sentence in prison.


The bottom line is that failing a drug test while on probation is quite serious. However, consulting with a lawyer in this situation may help you avoid additional charges or increased sentencing.




About the Author:

Andrew M. Weisberg is a former felony prosecutor who now serves as a defense attorney in the greater Chicago area. He has extensive experience in handling all types of criminal cases, from sex offenses and domestic violence to retail theft-related crimes, murder, and drug crimes.

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