In my role as a Michigan driver’s license restoration lawyer, I handle a lot of cases (over 120 per year)– way more than any other lawyer I know.  I guarantee to win every case that I take (and do that by only taking cases for people who have honestly quit drinking), yet even among my client base, probably about half have previously tried a “do-it-yourself” license appeal and lost.  Although the term “do-it-yourself,” in the context of a license restoration case, technically means without a lawyer, I intend the term, at least in this article, to include using some lawyer who does not really concentrate in this field (because that qualification alone narrows the field down to a very small number of lawyers).  The sad truth is that in many cases, the only difference between someone trying their own license appeal or hiring a lawyer is the money saved (or wasted).  The Michigan Secretary of State’s Administrative Hearing Section (AHS) is the agency that decides all Michigan restoration and clearance appeals, and it does so under a very specific set of rules and requirements.  If you’ve had your license revoked for multiple DUI’s you must know and follow them thoroughly in order to win it back, or obtain the clearance of a Michigan hold on your driving record.

188252-do-it-right-the-first-time-unknown-picture-quotes-quoteswaveIn order to make sure we adequately cover everything, my first meeting with a new client takes about 3 hours.  He or she will be asked to bring in whatever paperwork they have from any prior appeal(s) so that I can see why they lost.  This includes the denial order wherein the hearing officer identifies the evidence presented and the reason(s) the appeal was not successful.  Denials are always based upon problems with the evidence.  Undoubtedly, the hearing officer will point to problems with the timing of the case, the facts of the case itself, the letters of support, the substance abuse evaluation, or the testimony from the hearing, because almost every losing case fails due to problems with one or more of those things.  All of these are amateur mistakes, and for me, completely avoidable.  Whether these things wind up being missed by a lawyer or a true do-it-yourselfer, the results are the same: you lose.  As the old saying goes, “You don’t know what you don’t know.”

There is a very real cost to losing a license appeal; you have to wait another full year before you can try again.  Sure, you can consider appealing the denial to circuit court, but I don’t take those cases for any money because they are expensive, takes months and months, and, most important, are almost always sure losers.  The hearing officers seldom make the kind of legal mistakes that will cause a Judge to overrule and reverse their decisions.  It is very important here to separate the difference between being genuinely sober, and proving that you’re sober, under the rules set out by the state.  Think about it this way:  Assume that you’re an American citizen who has travelled to Canada, and while there, you wind up being a witness to a crime, do the police question you about it.  When you’re asked about your citizenship, you reply that you’re American.  The officer asks you to prove it.  You produce your driver’s license.  She replies that a driver’s license proves nothing.  What about a birth certificate, she asks?  You respond that you left it at home.  At that moment, you are really unable to prove your citizenship, even though you are 100% American.  The point is that genuinely being something or having a particular status (a high school graduate, an American, or sober, etc.) is one thing, but proving it is another.  It comes down to evidence.  You can have all the sobriety in the world, but you must prove it according to the rules, procedures, and standard of evidence required the state.

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In this ongoing article about the mandatory alcohol assessment (detailed in part 4) and pre-sentence investigation (PSI) in a Michigan DUI case, we have covered, so far, 2 of what I call “the big 3” components of the PSI process.  Ultimately, the purpose of that process is to generate a written report and recommendation to the Judge about whether a person has (or not), or is otherwise at risk to develop a drinking problem, and what level of education, counseling or treatment should be ordered to prevent another drunk driving offense.  As we’ve seen, the first task in “the big 3” is to gather background information about you (where you’ve come from), while the second is to look at what’s currently going on in your life, both in terms of life itself and your relationship to alcohol (where you are).  The third part of all this, which is actually the end result and goal of the whole alcohol assessment and PSI process itself, and the subject of this 5th and final installment, is to recommend to the Judge what he or she should do to you by way of punishment, supervision and treatment (where you’re going).  It is over this recommendation for counseling, education and/or treatment that we can, if we do this right, have the most control.

recommendations 1.2This is important.  All along, I’ve been repeating how the PSI’s recommendation is really like a “blueprint” for what the Judge will do, and to be perfectly clear, it is.  In the real world, a Judge does not have the time to assess you to determine if you really have, or otherwise are at risk to develop a drinking problem, much less to evaluate your past (including researching any past criminal record) and current life situation.  When you go to the doctor, he or she doesn’t personally take your blood and then run a panel of tests on it; instead, when he or she need information, you get sent for “testing.”  Ultimately, those results are used by your doctor to determine the appropriate course of treatment.  It’s pretty much the same in the court system, especially when it comes to DUI cases.  Ultimately, it is the Judge who uses all the PSI information in deciding what to order in your OWI case, but even saying it like that overlooks the critical importance of the PSI’s recommendation.  For the most part, Judges rely heavily upon the probation department’s recommendation.  After all, it was the probation department that assembled the background information about you, administered the alcohol assessment and “scored” it, and then finally met with you.  At least in theory, probation has come to know you somewhat, and certainly a lot more than the Judge ever can for the few minutes you stand before him or her.  If you’ve ever run any type diagnostic or repair program on your computer, then you know how this goes:  You get a list of “recommended” actions to take, and unless you really have the technical knowledge to know something different (please, computer geeks, just pretend you’re like the rest of us here in order for this analogy to work), you just go with the recommended actions precisely so you DO NOT have to go in and do every single thing yourself.

This is where I see most lawyers miss the best opportunity to really influence the outcome of a DUI case.  Once the PSI recommendation has been written, so too, at least for the most part, has the script for what will happen to you.  By the time everyone shows up in court for sentencing, it is really far too late for the lawyer or the client to make any real difference in terms of what the Judge will do.  By law, the DUI driver and his or her lawyer must read the PSI report and its recommendation before the Judge calls the case.  The Judge will specifically ask if the defendant and his or her lawyer have read the report, and if there are any corrections that need to be made to it.  The Judge will then ask what the lawyer and the person have to say about the PSI report and recommendation.  This is your one and only chance to tell the Judge what you think about it.  We will look at this more closely in the coming paragraphs, but in the all-important real world, this is far more about giving a person a chance to say his or her piece, or to vent, than it is to convince the Judge to deviate, in any significant way, from the recommendation itself.  Wholesale differences between what is recommended and what the Judge actually orders don’t occur very often.  Instead, a Judge can, once in a while, be persuaded to make a small change here or there (like reducing the number of hours of recommended community service from something like 60 hours down to 30, in those jurisdictions that order it).  This is why it is so absolutely imperative that you be thoroughly prepared for the alcohol assessment and the PSI so that, instead of winding up having to make an essentially futile argument against its recommendations at the time of your sentencing, you positively impact the recommendations that are made so that they are more favorable to you.  In other words, since the Judge is already predisposed to follow the recommendation, it is far better to have some real influence in making one that is more lenient, and then showing up in court and asking the Judge go along with it, given that he or she is pretty much going to do that, anyway.  By contrast, if a person goes in and “bombs” the alcohol assessment and/or the PSI, or just otherwise doesn’t do as well as he or she could have, it is a waste of time and breath to show up at sentencing and try and convince the Judge to disregard the recommendation in large part.  That’s simply not going to happen…

This is the 4th part in our examination of the Pre-Sentence Investigation (PSI) and mandatory alcohol assessment in Michigan DUI cases.  In part 3, we left off our overview of the “where you are” in your life component right at the point of the actual written alcohol assessment.  In this installment, we will zoom in on the subject of written alcohol testing as part of the PSI for anyone who has been convicted of an OWI (Operating While Intoxicated) or other alcohol-related traffic offense.  Without a doubt, the alcohol screening assessment is the single most important determinant of how things will turn out in a Michigan DUI case that otherwise doesn’t get thrown out of court.  In It is fitting that this absolutely critical step in the DUI process get its own treatment.  Here, however, I must talk about myself a bit before getting into the subject: I am, of course, a DUI lawyer, but beyond law school, I have also completed a formal, post-graduate program of addiction studies.  This means that I academically and fundamentally know and understand the research into, and theories of, addiction.  I know all about the development, diagnosis and treatment of alcohol problems from the clinical side, while I also understand, from daily experience, how the court system tends to get caught up in the pervasive over-diagnosis of alcohol problems because of its inherent alcohol bias.  The point here is that I can help save you from unnecessary time and expense, meaning classes, counseling and treatment, resulting from a drinking and driving charge.

check boxA lot of people come to a DUI lawyer all worried, and cannot stop telling anyone who will listen, how willing they are to do any kind of classes or counseling just to stay out of jail.  I would be, too, if it came down to a choice between jail or treatment, but the real kicker is that, especially in 1st offense drinking and driving cases, jail simply is not on the menu.  Why would you jump into rehab you don’t need in order to “avoid” jail that you’re not going to get, anyway?  With only a single local Judge as an exception (and even that isn’t a dead-sure thing), you don’t get jail in a 1st offense drunk driving case in the Detroit area, meaning Macomb, Oakland or Wayne County.  I’m sure it’s like that in a lot of other places, as well, but I limit my DUI practice to the Tri-County area so that I can speak with authority when I talk about what happens around here.  The bottom line is that you want to avoid as much of the burden and expense of counseling – particularly unnecessary counseling – as possible.  Even in those cases where a person knows that his or her relationship to alcohol has become problematic and wants help, it is better to find the kind of help that is a good fit, rather than just getting “fit” into whatever program the court assigns without regard to what works for you.  This is where my understanding of the broader clinical (meaning treatment and recovery) landscape becomes especially useful.

Yet for all of this, the court is required, by law, to assess a person by having him or her complete a written alcohol screening test.  Each answer on these “tests” has a numerical point value, and those answers are scored and totaled up, and then a scoring key is used to determine whether or not a person falls into a range that shows him or her to be at risk to develop a drinking problem, or in fact has one, and, if so, how far along it has progressed.  In a perfect world, this would be an unbiased, tabula rasa (clean slate) assessment, but simply by virtue of the fact that this rather clinical function is being performed in the criminal justice setting, as the result of a drunk driving offense, and by a corrections (probation) officer, no less, it turns out to be about as biased as you can get.  Before we get into the nitty-gritty of things, consider this:  How much professional interaction do you think the average probation officer has with people whose drinking hasn’t caused some kind of problem (like a drunk driving arrest)?  In other words, the entirety of a probation officer’s contact with DUI drivers is limited to people for whom the use of alcohol has given rise to a criminal conviction.  It is almost laughable that anyone could think it is possible to do any kind of unbiased assessment in that context.  With that as our background, let’s now turn to the whole assessment process…

This series of articles is about the most important part of any DUI case – the mandatory alcohol screening and pre-sentence investigation, or PSI.  This is all about getting better results and a more favorable outcome if you’ve been arrested for drunk driving.  When we began our inquiry in part 1, I explained that Michigan law for OWI cases requires anyone being sentence for a drinking and driving offense to complete a written alcohol screening.  The results of that “test,” along with the other information gathered by the probation officer as part of the larger pre-sentence investigation itself is used to make a formal sentencing recommendation to the Judge.  In the real world, that recommendation is pretty much the blueprint for what will happen to you, and the most effective and proactive plan is to make sure you are thoroughly prepared to do as well as possible during the PSI (thus procuring a more favorable recommendation), rather than just passively letting things happen and then showing up in court and trying to persuade the Judge to disregard the probation officer’s findings.  Although that’s a losing idea from the outset, it tends to be, by default, the approach most widely used, perhaps because unraveling all of this takes a lot of effort.  Despite the breadth of the undertaking, I did it anyway, and in doing so, have termed the whole PSI process as “the big 3,” meaning an examination of where you’ve come from (your past), where you are (your current life situation), and where you’re going (the sentencing recommendation).  In part 2 of this article, we looked at where you’ve come from in terms of an inquiry into your past.  Here, in part 3, we’ll look at where you are, meaning how your current life situation is assessed.

you-are-here 1.3The whole point of a PSI, meaning pre-sentence investigation, is to assess a person to determine what kind of counseling, education, treatment and, yes, punishment, he or she should receive after a DUI in order to minimize the chances of him or her ever doing it again.  As we saw in part 2, a person’s background, meaning the “where you’ve come from” part of what I call the big 3 of the pre-sentence investigation – where you’ve come from (your past), where you are (your current situation), and where you’re going (what should happen to you) – involves a detailed look at where to whom you were born, where and with whom you were raised, the important things that did (or did) not happen in your childhood, all with an eye to whether or not you are dragging emotional baggage and unresolved “issues” from your past into the present.  As much as you may or may not be negatively affected by your past, and as dreadful or nurturing as it may have been, we all live in the present (although most of us know people who are kind of psychologically “stuck” in the past).  Accordingly, an equally important part of the PSI assessment is to determine where you are in your life right now.  Obviously, a big part of that is that you in the midst of dealing with a drunk driving case.  In this third installment, we’ll look at how significantly your current life status impacts what will happen to in your DUI case.

Your status is important.  In the real world, there is a kind of life currency called “social capital” that separates the “haves,” at one end, from the “have nots,”at the other,  and is why things are different for the rich and famous than the poor and homeless  We all have varying degrees of social capital, and it doesn’t entirely relate to money, either.  Neither a Bishop nor a Police Chief are “rich” people, but they have a status (and therefor a certain degree of power) far above the ordinary.  And while most of us are not rich and famous, chances are, if you’re reading this (as in on your own, or a work computer, tablet or smartphone), you probably have a good job to be able to afford and use these devices, and simply because you’re reading one of my articles, you’re almost certainly something of the analytical, cerebral type.  My typical client has a good career and a good life, and therefore has much to be fearful of losing in the face of a DUI.

In the part 1 of this article, we began our examination of the PSI process and the role of the mandatory written alcohol assessment in DUI cases.  While the first installment was mostly a kind of overview, here, in this second part, we’ll zone in on the first of the 3 main things evaluated in a pre-sentence investigation; your background, upbringing and prior record, if any.  I typically describe the whole PSI process as “the big 3,” meaning an assessment of where you’ve come from, where you are, and a recommendation about where you’re going.  This is more than just a cutesy way of looking at it, though, because those really are the 3 pieces of the PSI puzzle, and they directly impact what the Judge will do to you in a drunk driving case.  In the same way that how well or poorly you perform on the alcohol screening test figures into the kind of alcohol education, counseling or treatment you will receive (or not), your background and your current living situation are also evaluated as important factors in deciding what the Judge should do to you when you are sentenced for a DUI.  Let’s break this down to make it clearer, and we’ll start with a hypothetical example:

only-the-present-the-secretAssume that Tipsy Tina was arrested for a drinking and driving offense in one of the cities in the 41B district court (Clinton Township, Harrison Township and/or the City of Mt. Clemens) and her original charge of OWI (Operating While Intoxicated) has been bargained down to OWVI (Operating While Visibly Impaired, often just called “Impaired”).  She already pled guilty to the reduced charge, and her sentencing date has been set out about 4 weeks.  She has been given a date to return to court in about 2 weeks (before her sentencing date) to meet with a probation officer for her PSI, and she must also complete the legally required alcohol assessment test, as well.  We’ll get to the test later, because not only is it the single most important factor in determining what happens in a drunk driving case, it also requires its own, separate article to properly explain.  Thus, we’ll begin with the first (“where you’ve come from”) of what I have dubbed “the big 3” and see how a person’s background, childhood and upbringing figure into all of this.

One of the easiest ways to demonstrate this is to compare yourself to someone else, so we’ll use poor, hypothetical Tipsy Tina for that purpose.  As part of any PSI process, you’ll be asked to fill out some paperwork about your past.  By and large, this means explaining where and to whom you were born, with whom you were raised, and how your childhood played out.  As life goes, no matter who you are and how you came up, you probably consider your own background to be “normal,” so just take that as a starting point and then contrast your past with Tina’s.  On her intake paperwork, Tina indicates that she was given up for adoption as a baby and was bounced around to various foster homes as a child.  She admits that she was sexually abused throughout her childhood and that she dropped out of high school in the 10th grade.  Not long after that, having already tried a number of substances, including tobacco, alcohol, marijuana, she became an IV drug user.  By her late teens, she had been in trouble with the law several times and had not had any kind of stable living arrangement for several years.  At age 20, she had a child, and then lost custody because she was sent to prison for 3 years, beginning at the age of 22.  When she was sent to prison, she was diagnosed as having schizo-affective disorder.  She reports that she recently discontinued taking her psychiatric medication because, although it helped with the “voices” she hears, she doesn’t like its side effects.  This is her 1st DUI, but she has 3 prior misdemeanor convictions, including one for solicitation (prostitution) and 4 prior felony convictions, including home invasion and delivery of a controlled substance.  As to her health, she reports many problems, including a worsening of the symptoms from her schizo-affective disorder (she’s suffering from more frequent auditory hallucinations) and she fears that she may be HIV positive, although she has not been tested for it since before her time in prison.  She has not seen her child in over 6 years.  Tina, as it turns out, is a train wreck…

There is one, specific step in the DUI process that affects the outcome of each and every case far more than any other.  In fact, this step is really the most important one, in terms of what actually happens to you, and its direct relationship to actual results in a drinking and driving case cannot be overstated.  Most often referred to as the PSI, but variously called the “screening,” “assessment,” “alcohol assessment,” “substance abuse assessment (or screening)” or “pre-sentence investigation,” it is what takes place right before a person is sentenced by the Judge.  It is here that you complete a written alcohol use screening instrument (think of it as a “test”), fill out forms and provide information about your background, current life situation, your version of the facts of the case, and then go through an interview by a probation officer, who will ask additional questions.  After you’ve taken the test, provided all the requested information and completed the interview, the probation officer must write up a sentencing recommendation (this is required by law) for the Judge, advising what should happen to you at sentencing.  For everything that can be said about this, here is the bottom line:  Most Judges follow these recommendations like a blueprint.  In other words, what’s recommended here is – with very little exception – what’s going to happen to you later on.  In this multi-part article, we’ll examine the PSI and the recommendation that follows, and what can be done to make the outcome of your drunk driving case better.

Student filling out answers to a test with a pencil.Over the years, court probation departments have been tasked with completing PSI recommendations.  Because this job has been assigned to them, the probation officers who staff these departments have developed and, perhaps more importantly, have been perceived to have developed, a real expertise in assessing DUI drivers to see if they have, or are at risk to develop a drinking problem (or not), and to know all the educational, counseling and treatment options best suited for any particular case and person in order to prevent another drunk driving incident.  This sounds complex, and while there is a lot to it, our examination will ultimately focus on the simple reality that how well or poorly you do at this PSI stage determines what kind of sentence you will receive from the Judge.  This is a topic skipped over by most lawyers because it is deep, does not involve any specific legal knowledge or skill and is just otherwise easy to ignore.  Unless, like me, you’re inclined to take things apart to see how they work, the whole PSI process seems impenetrably closed-off, because, indeed, it is closed-off; the PSI is done entirely by the probation officer and the only other party in the room is the person going through the DUI.  On the day you come back for sentencing, the PSI report and its recommendation is provided to you and your lawyer, and the two of you are REQUIRED to read it over, and note any corrections that need to be made to it.  Once your case is called for sentencing, the Judge will ask your lawyer if the two of you have reviewed the report, if it is factually accurate, and what comments you have as to the sentencing recommendation.  Here is where I, as a DUI lawyer, part company, in a very big way, with most of my colleagues who essentially ignore this critical step, precisely because I am that guy who takes things apart to see how they work, and I know how proper guidance here can have a direct and substantial impact on making things better in a DUI case.  Even though I always have the PSI in mind as I handle a case, I also have a separate 1 to 2-hour meeting with every client right before he or she fills out any paperwork or goes in for the interview with probation to complete his or her pre-sentence investigation.

Most lawyers show up on the day of sentencing, ready to read the PSI report and then make a “pitch” to the Judge regarding its recommendations.  The idea, of course, is to get the Judge to “take it easy” on the client.  Here is something you can take to the bank:  It’s way too late to change the outcome of your case by arguing against the recommendations in the pre-sentence report when you’re standing in front of the Judge at sentencing.  And to be perfectly clear, let me repeat and properly emphasize this:  It’s WAY too late to have any real impact after the report and recommendation has been written up by the probation officer.  I often say that 99% of all Judges follow these recommendations 99% of the way, and that’s probably an understatement, if anything.  In order to change the outcome of your case, you need to directly influence the recommendation itself, and that begins long before you ever pick up a pencil to take a written alcohol screening test or ever sit down to speak with a probation officer.  It begins when you choose a DUI lawyer, and this is where I can help the most.  Throughout this article, we’ll look at how the court system’s inherent alcohol bias and the work experience of probation officers and Judges directly affects all of this, but before we get to that, we need to make clear that when your lawyer is asked to make any comments about the recommendations contained in the PSI report, the only real latitude he or she has to convince the Judge to ignore or do something different from what has been recommended is to show how that recommendation or suggestion is just plain wrong.  Anything less than that just sounds like (and is certainly perceived as) whining from someone unhappy with the consequences of his or her drinking and driving conviction.  Let’s see what all that means…

For most people who win back their Michigan driver’s license (or a clearance of Michigan’s hold on their driving record), getting back on the road represents putting the last piece of the puzzle back into a fully rebuilt life.  In that sense, restoration of your driver’s license goes hand in hand with the restoration of your life.  Given that the real meat and potatoes of a driver’s license appeal is demonstrating that you are a safe bet to never drink again, this whole “last piece of the puzzle” stuff has some real evidentiary importance to it, as well.  It requires a deep commitment and profound life changes to first decide to quit drinking, and then to stay quit.  There is no one who will report that life today, as a non-drinker, looks much like it did back when you were drinking.  A lot of times, those people who focus too much on the whole “I need a license” thing are those who did not spend enough time caught up in getting sober, and this usually marks a clear distinction between those who just want to win and those who have what it takes to actually win.

SobrietyMissing-Puzzle-Piece 1.2, of course, is the key.  The journey to sobriety is a truly humbling and difficult ride.  There is no way to fake it, meaning both the experiences of claiming one’s sobriety and the joy of living it thereafter, although as the hearing officers in the Michigan Secretary of State’s Administrative Hearing Section (AHS) know all-to-well, there is also no shortage of people who will try.  Amongst the lot of pretenders and scammers are also those who really think, at least at the moment, that they are sober; the sworn-to-quit and those afraid to pick up again.  These people may have quit drinking, but they have not begun to really get sober.  Conspicuously lacking in all of their stories, yet uniquely present in the “last piece of the puzzle” reports, is how obtaining and maintaining sobriety became, to the exclusion of all other pursuits, job number one in such a profound way as to eclipse even the inconvenience of not being able to drive.  As poetically as this can be described, you either get it, or not.  The same, by extension, will hold true for the outcome of your appeal to get your driver’s license back.

This distinction often shows up most vividly in the differences between the story told by an honestly sober person going through the license appeal process and the information provided by the writers of his or her letters of support.  Well-intentioned friends or family will often skip over (and may not be intimately familiar with) the details of a person’s labors to get sober or efforts at remaining so, and then go on to explain how tough it has been for him or her to function without a driver’s license, and how he or she “deserves” it back.  Given that the SOLE discretion to make that decision rests with the hearing officer, I normally advise the letter writers (usually by revising their letters with my red pen) to cull some of these opinion statements and focus more on the facts of how the person has remained alcohol-free, and since when.  By contrast, the subject of these letters will often speak very little of his or her struggles to get around, focusing instead (and somewhat ironically, considering that they’ve had no ability to drive for the last however many years) on how much better life is now, without alcohol, than it was back in the day.  This is not a bad contrast in the evidence, but rather part of that greater imperfection that is always present in stores that are true.

In part 2 of this article, we continued our inquiry into probation violation cases in Michigan criminal and DUI cases.  In particular, we tried to see how the whole violation thing is perceived by the Judge who sentenced you for a drunk driving offense or something like a drug (including marijuana) crime.  We also noted that although positive test results are the most common reason for being violated, missed tests come in a reasonable close second, with false-positive results a distant third.  Here, in our 3rd and final part, we’ll go into the courtroom itself and see how it is proven that a person has violated his or her probation and how that plays out in front of the Judge.

Decorative Scales of Justice in the CourtroomUp to this point, we’ve looked at the 3 most common reasons that give rise to a probation violation:  A positive result, a missed test, and a false-positive result.  Now, let’s look at how these are handled in court and what must be shown to prove that there was, in fact, a violation.  That “showing” is technically called the “standard of proof.”  Everyone knows that if you’re accused of a crime and go to trial, the prosecutor must prove your guilt beyond a reasonable doubt.  A probation violation is proven by a much lower standard, called a “preponderance of the evidence.”  The most common way this is explained is to imagine the scales of justice sitting even, or level.  As soon as you put something on one tray, it goes down and the empty side goes up.  Now, if you put something of equal weight in the other tray, the scales go back to even and level.  If you put something that weighs just a little more on one side than you do on the other, then the heavier side falls farther down, and the lighter side remains higher.  Surely you get this.  A preponderance of the evidence means just enough evidence to tip the scales from being exactly even, one way or the other.

Let’s consider an example:  Assume that Sneaking Sam has missed a test.  Now, picture the Judge on the bench, with the scales of justice next to her, and they’re level (even).  She looks at Sam and says, “I have a notice that you missed a test last week, Sam.” She then grabs a 5-pound weight and puts it on one of the scales, causing it to tip.  So far, the preponderance of the evidence weighs in favor of Sam having missed his test.  Next, the Judge asks what Sam has to say, and his lawyer explains that Sam’s boss called him in early the day of the missed test because there had been a flood at the workplace, and hands up a letter from the boss to that effect.  The lawyer also offers up a make-up EtG test taken the next day.  The Judge then takes a 2-pound weight for the letter and a 2-pound weight for the make-up test and puts them on the other scale, causing the missed test side to rise.  Still, the scale hangs a bit lower on the side of the missed test.  That’s because the preponderance (think of it as the majority) of the evidence supports the idea that Sam did, in fact, miss his test.  Sure, he has a relatively good reason for doing so and it’s true that he has a clean make-up test, but in terms of the simple allegation that he missed the test, Sam’s evidence does not outweigh that on the “missed” side.

In part 1 of this article about Michigan probation violations, specifically in the Detroit-area district and circuit courts of Wayne, Oakland and Macomb Counties, we began examining what happens when a person who is on probation for a criminal or DUI case either tests positive or misses a test altogether.  I pointed out that to the Judge, a violation of his or her order to not drink (and/or not use drugs) by either a positive or missed test can feel like either getting the middle finger from the person to whom a break was given.  The only other alternative to “screw you, Judge,” is that the person is suffering from an overwhelming and irresistible compulsion to drink (or smoke weed or whatever).  As we noted, however it plays out, a missed or positive test does not look good.  I certainly understand that people who do have a drink (and get caught) are not, for the most part, trying to “flip off” the Judge, nor are they caving into cravings of some sort, but rather just want to be normal, like everyone else.  An order to not drink, however, must also be seen as a part of one’s punishment for the original offense, and a missed test, even if it is followed by a clean make-up test (or there is a “good” explanation for missing the test) is a violation of the requirement that a person test when directed, on the schedule ordered, and not one that is “convenient.”  In other words, part of the penalty for a criminal or DUI conviction is that you don’t get to act normal by enjoying an adult beverage.  At the end of part 1, we were, figuratively speaking, standing in front of the Judge who was wondering if a person tested positive because he or she is hell-bent on NOT following the rules or is otherwise unable to cope with his or her urges to drink (or use drugs).  We concluded by pointing out that it’s that very spot where most people really get a sense of how bad their situation looks, and asking what can be said or done to make it better.

Plan-or-Growth 2.0There is no simple, one-size-fits-all answer to that question.  And to be perfectly honest, some Judges are “easier” than others.  You can call them more forgiving, lenient or understanding, but the plain fact is that there are some Judges who won’t really have much interest in your side of things if you test positive, and I can think of at least one Judge who will have about ZERO interest in anything you have to say once you’re caught drinking or smoking weed while on probation.  In that sense, as you look for a lawyer, you need to find one who really knows the Judge or Judges in the court where your violation is pending.  For example, that Judge who would probably have the least interest in anything you have to say is also (not surprisingly) rather short on patience, so it would not be a good tactic to go in there with an attorney who will drone on and on about kinds of stuff she DOESN’T want to hear.  Any chance to change her mind needs to come right out of the gate, not after torturing her by babbling on and on….

As we noted above, the goal in a probation violation case is to convince the Judge that you neither callously disregarded his or her orders to not drink (or use anything else) nor do you have an underlying problem with urges too strong to resist.  Of course, everyone’s first strategy is to say that very thing.  Part of the problem with such a plan is that, almost without exception, everyone does and says that same thing.  Over the course of my 26 years, I have read, quite literally, thousands of DUI police reports.  Ask any DUI lawyer or any police officer what people say when the officer asks if the person has been drinking, and you’ll learn that far and away, everyone gives about the same answer; “2 beers,” “2 drinks,” or “a couple of drinks.”  No one replies, “Hell yeah; officer, I drank a lot, and man, am I am really drunk right now!”  Likewise, everyone who stands before the Judge for drinking while on probation says that he or she didn’t mean any disrespect nor do they have drinking problem.  So if that’s not going to fix things, what do you do?

As a Michigan criminal defense and DUI lawyer, I get called upon to handle a lot of probation violation cases.  In fact, it’s quite likely that if you’re reading this, you or someone you care about is facing one.  In this article, I want to take a real-world look at the 2 most common reasons people wind up getting violated:  A positive urine or breath test result or a missed test for alcohol and/or drugs.  Sure, there are plenty of other ways that people violate an order of probation, and much of what we’ll look at here applies equally in those situations, but most of the calls I get follow a positive result or a missed test.  I want this installment to be candid and conversational, as if you were sitting in my office and we were speaking across my conference room table.  I’m sure that you’ve already come across plenty of lawyers with catchphrases about your freedom, your future, and/or control over your life, or who focus on how tough and aggressive they are.  By now, you’ve probably grown weary of all that, so we’ll change focus and use this article to examine how probation violations play out in real life, and how I handle them.  This article will be divided into 3 installments, and will really explore the goings-on in a probation violation case.

27777764-fresh-we-need-to-talk-symbol-background-with-space-for-own-text-Stock-Photo-300x300We’ll start by looking at the hard truth that a lot of people (including lawyers) want to dance around, rather than face head-on:  When you’re caught giving a positive test result, the first impression is either that you’re giving the finger to the Judge or you have a real problem with alcohol and/or drugsProbation is a break; an opportunity to stay out of jail by, amongst other things, showing up for all required tests and then passing them.  Of course the job of your lawyer in a probation violation case is to get the Judge to see what happened as being neither a disregard of his or her order nor as proof that you have some irresistible compulsion to drink or get high, and for everything else that can be said, this is the real crux of the matter.  It should be pointed out that although most Detroit-area courts use the term “probation violation,” some others call it a “VOP,” meaning violation of probation, or a “show cause,” which is a hearing that requires you to go before the judge and show cause (a good reason) why you shouldn’t be held in violation.  Whatever it’s called, it’s all the same thing.

We should also note, at the outset, that good reasons do exist for having missed a test, and that false-positive results do happen.  Sometimes, the simple truth is that a person misses a test because he or she forgot, or got real busy, or had to go to work, but was not to avoid a positive result.  In a perfect world, when that happens, a person will be timely notified of a positive result and have an opportunity to retest.  In the real world, however, it often works out that by the time a person learns he or she has failed a test, it’s too late to do anything about it.  Sometimes, a test result is wrong, but when a positive result is correct, meaning you did, if fact drink (or use drugs), you need the kind of lawyer who is a persuader, and who can explain things clearly.  In other words, if the positive test result is correct, it couldn’t matter less if your lawyer has a Nobel Prize in chemistry; that’s not going to make things better in front of the Judge.  Instead, you need to convince the Judge to not put you in jail or otherwise hammer you.  At the end of the day, while some cases do involve false-positive results, most arise because you simply got caught, and here, you need to go into full damage-control mode.  Let’s examine, in turn, positive test results (when you did drink or use), false-positive results, missed tests, and what has to be shown for you to be found guilty of a probation violation and how that all goes down in court.