No one wants to go to Jail. In my Criminal Practice, I try everything possible to make sure my Client doesn’t wind up there. In the overwhelming majority of Cases I handle, my Clients avoid any incarceration. In fact, it is, fortunately, a rare occurrence when my Client doesn’t walk out of Court with me.
At the beginning of any Criminal Case, the person charged generally has one concern above all others; staying out of Jail. When a Client is told that Jail can be avoided, and they will, instead, likely be placed on Probation, they are usually very pleased. Really, would you doubt me when I say that pretty much everyone charged with a Crime says they’ll do anything to stay out of Jail? I’d say the same thing if the situation was reversed.
Somehow, though, as both time and the Case march on, some Clients become secure in the idea that they’re not going to Jail, and then their thoughts turn to the details and Conditions of Probation. What will I have to do? Will I have to report? How often? When and where? What if my boss won’t let me get that much time off?
To fast-forward a bit, all this thinking usually winds up with the Client asking me if we can get “Non-Reporting Probation.” And although the final decision in any case is up to the Judge, there are certain generalizations we can make about whether or not Non-Reporting Probation is likely to be ordered in any particular case.
First, when a person pleads guilty to or is otherwise convicted of a Felony, Non-Reporting Probation is highly unlikely. Even someone with no prior Criminal Record, and who works out some kind of a deal in a non-violent type of case can pretty much bank on getting Reporting Probation. It’s kind of like asking “why do we shake hands with our right hands, rather than our left?” And the short answer is “because that’s the way it is.”
Misdemeanor cases, by contrast, run the gamut of possibilities, from “absolutely not” to “perhaps.” Geography plays a role in all this, as well. Because I only handle Criminal Cases in Macomb, Oakland and Wayne Counties, my observations are limited accordingly.
Oakland County Courts are, in my experience, far and away the least likely to ever give Non-Reporting Probation.
Macomb County Courts, on the other hand, are far more inclined to at least consider the possibility of Non-Reporting Probation if the offense is minor enough.
Wayne County Courts are about as likely as those in Macomb County to at least consider Non-Reporting Probation in minor offenses, although the range of possibilities is wider. In some Wayne County Courts, like Detroit’s 36th District Court, Non-Reporting Probation is essentially a “done deal” in lots of cases, because the Court has so many cases it would take an army of Probation Officers to monitor them all. Other, more Conservative cities are far less likely to ever allow Non-Reporting Probation, and tend to emulate the Courts in neighboring Oakland County.
By now, though, you should be sensing a pattern here: Minor Offenses are those where the possibility of Non-Reporting Probation is the highest. More serious Offenses are far less likely to bring about that result. And there are certain Offenses where it can be fairly said that Non-Reporting Probation will never happen.
While not an exhaustive list, here are a few Misdemeanor Offenses where I can pretty much guarantee that, no matter where the case is pending, and no matter who the Defense Lawyer is, the Defendant will wind up on Reporting Probation:
Domestic Violence DUI 2nd Offense Stalking
On the other side of the coin, here are a few Misdemeanor Offenses where I think a Defendant has the highest possibility of getting a break and being place on Non-Reporting Probation:
Driving While License Suspended Improper Plates Retail Fraud, 1st Offense
The larger point is that in some Cases, there is essentially ZERO possibility of getting Non-Reporting Probation.
In other cases, there is a variable possibility of getting Non-Reporting Probation, and the most important components of that variable are where the case is pending and the kind of charge involved.
For all of that, it doesn’t hurt to ask about Non-Reporting Probation. When I represent someone in a case where I simply know the Judge will say “no”, and might even wonder what’s wrong with me for asking, I’ll tell the Client to forget it. In other cases, I will ask the Judge to at least consider the possibility.
But sometimes, at the end of it all, I have to remind my Client how concerned they originally were about just staying out of Jail, and how they said they’d do anything to avoid it. Then, they’ll usually smile and nod and say something in agreement.