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Can You Go To Jail For Failing A Drug Test?

Most recreational drugs are illegal, so when you’re faced with taking a drug test, it’s natural to wonder, can you go to jail for failing a drug test?

Since most illegal actions, once they’re discovered, tend to involve the authorities in one way or another, you might be feeling anxious, thinking that failing a drug test is going to get you into serious trouble.

Well, don’t worry too much.

While there are a few circumstances where legal repercussions could follow a failed drug test, it’s extremely unlikely that a positive drug test would result in criminal charges.

Failing a drug test can cause you significant problems, but in most cases, going to jail won’t be one of them.

Although, if you’ve attempted to cheat a drug test, many states have rules in place which make that an act an offense, and the penalty could include jail time.

Read through this article to understand how the drug testing process works, and to learn about the consequences of failing a drug test.

Could You Pass A Drug Test?

Could You Pass A Drug Test?

Many people worry themselves silly that a drug they took weeks ago could show up on a drug test when that won’t usually be the case.

That’s not to say you should go ahead and take lots of drugs, but that you shouldn’t worry unnecessarily.

The two most common types of drug tests you’ll face are saliva tests and urine tests.

Both of these tests can pick up the same substances, but urine tests can detect them for longer.

Drug tests usually screen for the most commonly abused illegal drugs, although sometimes an extended panel will look for less common substances.

Recommended Reading: How to Pass Swab Drug Test With Listerine Strips

Common Substances Screened For On A Saliva Drug Test

(Other names Oral Test or Mouth Swab Test)

  • Marijuana
  • Cocaine
  • Opiates
  • Amphetamines and methamphetamine
  • Phencyclidine (PCP)

These substances can usually be detected 48 hours after the last use. However, marijuana can be picked up for much longer depending on your body composition and level of use.

Because THC in marijuana has an affinity for fat cells, the more body fat you have, the more THC your body can store and the longer it can show on a drug screen.

Regular marijuana use can also take much longer to clear from your system.

Common Substances Screened For With A Urine Drug Test

  • Marijuana – can be picked up for 30 days depending on the level of use and body composition.
  • Cocaine – detectable up to 3 days since last use
  • Amphetamines & methamphetamine – can be found up to 4 days since the last use
  • Opiates – detection window up to 4 days since last use
  • Phencyclidine (PCP) – can be found for up to 2 weeks since the last use

Can You Go To Jail For Failing A Drug Test For A New Job?

Can You Go To Jail For Failing A Drug Test

The most common reason that people will have to take a drug test is for a pre-employment background screen.

Many employers make passing a drug test a condition of employment, and drug tests are usually required once a conditional offer of employment has been made.

If a drug test is mandatory during the hiring process, employers should inform you of this when you make your initial application.

It’s always sensible to assume that an employer will require a drug test. And to remove any chance of failing, you should make sure you stop using drugs before you apply.

But what if you’ve been caught unaware and your job offer has come with an unexpected drug test attached?

You’ve got 24 hours to provide a sample and you think you might pass, but you’re not certain.

Should you risk taking the test, and what’s the worst that can happen?

Can I go to jail for failing a drug test an employer has given me?

Relax. The worst that can happen if you fail a drug test (in a non-regulated profession) is you won’t get the job.

An employer will simply terminate your application and move on to someone else.

They have nothing to gain by calling the police and there isn’t a crime they could report you for.

What’s more, your drug test is private medical information and you could take action against anyone sharing your results without your consent.

You didn’t give the employer permission to disclose your result to anyone else, and that includes the police.

Related Article: How do I Know If I Passed My Drug Test?

Can You Be Charged for Having Drugs in your System while you’re At Work?

Before we address that question, let’s look at the reasons you might have to take a drug test at work.

  • Random drug tests
  • Reasonable cause drug test
  • Post-accident or incident drug test
  • Annual physical drug test

Except for a drug test for an annual physical, these other drug tests could catch you out at any time.

If you take drugs, you’ve got good reason to worry about failing a drug test.

You could refuse to take a drug test, but most employers treat a refusal to take a drug test in the same way that they treat a positive test result.

If you refuse a drug test, they’ll proceed with disciplinary action.

The action your employer takes will depend on the reason they tested you, their company policy, and whether you’re in a regulated profession.

A regulation profession is one where you need a professional license to work in a safety-sensitive job.

Examples of regulated professions are medical workers like doctors and nurses, and transportation workers like pilots, train drivers, and commercial vehicle drivers.

Recommended: How To Find Out If A Company Drug Tests?

Can An Employee Go To Jail For Failing A Drug Test?

Can An Employee Go To Jail For Failing A Drug Test?

If you’re an employee in a non-regulated profession, you’re not at risk of going to jail if you fail a drug test at work.

  • You may be suspended.
  • Asked to enter a drug rehab or education program and agree to further testing.
  • You may be fired.

If you fail a drug test, you can challenge the result if you believe the result is a false positive. It’s important to seek legal advice if your job is at risk because of a false-positive test result.

For employees in a regulated profession, failing a drug test won’t result in jail, but employers have to follow certain procedures when an employee tests positive for drug use.

These procedures vary, and failing a drug test can have serious consequences for your professional license.

Please note that actually being caught taking drugs at work is grounds for your employer to call the police.

Employers can also involve law enforcement if you’re in a safety-sensitive job and you are clearly intoxicated while doing your job.

CDL Holders: What happens if you fail a drug test?

For CDL holders, there is a specific procedure that employers have to follow when a routine drug test returns a positive result.

In the first place, a medical review officer (MRO) will contact you to find out if there is a legitimate reason for the positive result.

If there is no legitimate reason, they will suspend you from your driving job, and depending on company policy, they could fire you.

Before you can return to your driving job, or obtain another driving job if you were fired, you’ll have to complete a Return to Duty Process.

This involves meeting with a substance abuse professional (SAP) and following whatever recommendations the SAP specifies.

Often you will have to meet all the costs involved with the Return to Duty Process, and these costs involve additional drug testing.

You can expect to take a minimum of 6 drug tests in the 12 months following your return to work.

There isn’t any risk of being sent to jail for failing a drug test as a CDL holder unless you were stopped while you were driving and tested by a police officer.

Can You Go To Jail For Failing A Drug Test On Probation?

When you fail a drug test on probation, your probation officer is required to submit a report to the court.

The judge will then order a hearing and you’ll have the opportunity to make a case for why you should be allowed to remain on probation.

If you fail a drug test on probation, you should seek legal advice right away.

Violating your probation conditions is very likely to end up with your probation revoked and your return to prison.

What Happens if you fail a drug test?

Can You Retake Drug Test If You Fail?

Not usually, although if you are certain your test should have come back negative, you may be able to have the same sample rested at your own expense. You can also pay for a new drug test with a new sample if you want to dispute the test result. A hair test is usually chosen for this because it has a longer detection window than a urine test.

What If Your Drug Test Comes Back Positive?

If your test comes back positive, a medical review officer (MRO) who is trained to interpret drug test results will contact you to find out if there is a legitimate reason that could explain the positive result. If there isn’t, then action will be taken in line with company policy.

What Is A Good Excuse For Failing A Drug Test?

Common excuses for failing a drug test include inhaling secondhand smoke, unknowingly eating a brownie (marijuana), using over-the-counter cough medicine (opiates, PCP), eating poppy seed bagels (opiates), and having dental anesthetic (cocaine).


Taking a drug test at work or during the pre-hire process won’t result in any legal action being taken against you. The worst that can happen is you will lose your job.

Workers in safety-sensitive regulated professions will face suspension, the potential loss of their license, and a Return to Duty Process. Legal action is unlikely unless the drug test was given because an offense had been committed on the job.

For individuals on parole or probation, a positive drug test could very well lead to a return to jail.

Related Resource: How to pass a drug test with hand sanitizer.