Within my Criminal Practice, I am regularly called upon to Represent former and new Clients in Probation Violation proceedings. This article will be a real-life examination of that process, and how a person can, in fact, stay out of Jail, rather than a confusing discussion filled with useless legal mumbo-jumbo. Let’s start by being candid; a Probation Violation is always a bad situation. While there are a million different reasons why a person can have their Probation “violated,” these charges tend to fall into one of only a few categories. In other words, a person will most often face a Probation Violation for one (or more) of 5 reasons:
- Missing a urine or other chemical test
- Testing positive for alcohol and/or drugs
- Missing a Probation appointment, or just stop Reporting
- Picking up a new case, or
- Not completing some condition of Probation, like community service, counseling, or paying all outstanding Fines and Costs.
Anyone who gets “violated” knows, in the pit of their stomach, that the Judge is not likely to be happy with them. After all, “Probation” specifically means “not in Jail.” Even if a person is given an initial Jail Sentence, they had to have been Sentenced to less than the maximum possible Jail term in order to have any Probation left to do. Thus, Probation stands in as a substitute for Jail. And when facing a Probation Violation, the first and biggest concern is staying out of Jail.
Everyone has their reasons for “violating” Probation, and we’ll get to those shortly. First, however, a person has to understand that from the Judge’s point of view, this all boils down to the simple notion that a break was given, and the person apparently didn’t live up to their end of the bargain. This is, understandably, frustrating to the Judge.
That said, there are certain Courts, very often in Oakland County, that seem to “load up” on the Conditions of Probation. While no one ever wants to face a Violation charge, some people feel like they knew it was going to happen sooner or later, especially when they walked out of Court wondering if Jail wouldn’t have been easier than having to do all the things that they feel were dumped upon them.
By contrast, plenty of other Courts, most often in Macomb County, dispense with imposing a million conditions and classes and community service and testing and Reporting and whatnot, and instead of almost setting a person up for failure, will rather sensibly and simply Order a person to just stay out of trouble, and maybe report once a month, as well.
The reader can no doubt tell which approach I favor…
For what it’s worth, Wayne County Courts tend to be more like Macomb, although any number of them still impose more things, like community service or Court-work programs, than do the Courts in Macomb. Still, they don’t tend to lay it on nearly as thick as the typical Oakland County Court.
The irony in all of this is that whatever Court handles a person’s case, the Judge presiding over it will undoubtedly feel that he or she was reasonable with the Sentence they imposed, even if the person thinks they got hammered.
And that is perhaps the first thing to bear in mind. It doesn’t matter that a person with a DUI in Chesterfield was given a year Non-Reporting Probation, while, for almost an identical set of circumstances, a person in Novi wound up with 18 months Reporting Probation, breath and urine testing, classes and community service. Each Judge will feel that they Sentence they imposed was appropriate and reasonable, and will NOT care what another Judge in a different Court would have done in the same or similar circumstances. In other words, we need to look at things from the point of view of the Judge to whom the case was assigned, because they are going to be deciding what happens next.
And no matter how few, or how many the conditions imposed, being called back into Court to explain a failure to comply with the Court’s Orders is just never a good situation, period.
In that regard, the single most important quality a Lawyer can have when handling such a charge is charisma. Probation Violations rarely hinge upon some complex legal strategy or tactic. Sure, there are cases, for example, where a particular chemical test can be shown to be unreliable, and result in a dismissal of the Violation. Other times, the person may have a legitimate excuse for not complying with some condition. Thus, a person who misses a Court-Ordered work program date because they wound up in the hospital has a legitimate excuse.
In most cases, however, the person may have missed a urine test because they had to work, or worked late, or didn’t have a ride. And while that’s an explanation, at least from the Judge’s point of view (and that’s all that really matters), it is NOT an excuse. The Judge will simply say, “You were Ordered to go there and provide a sample. How inconvenient, or difficult that might be is YOUR PROBLEM, not mine.”
Further, the Judge could say (and some will) “Imagine how hard it would be to manage your work schedule if I sent you to Jail for several months….”
Sometimes, a person misses something, like a test, or community service, or even a Probation appointment, and then freaks out. They panic. They just kind of hide out, and avoid the whole thing until they either get picked up, or the stress becomes too much to bear and they simply want to clear the matter up, and thereafter Appear in Court to do that.
There is an important distinction to be made here. There are 2, and only 2 classes of people who wind up in front of a Judge for a Probation Violation:
However, and no matter how bad things might at first appear, a person inevitably gets some credit just for showing up on their own to take care of things, even if they’ve been avoiding the Violation for a long time. After all, Judges are people, too. If you just switch places with them, in your mind, for a moment, you can see how anyone would be more inclined to be kinder to the person who voluntarily presents themselves over the person who gets caught and has a bag full of excuses (invariably seen as a bag full of b.s.) about why they haven’t taken care of this yet, and how they were planning on doing so, but got picked up first.
Anyway, however it happens, at some point the person is going to be standing in front of the very Judge who gave them a term of Probation instead of Jail, and now is asking why the person didn’t comply with the Court’s Orders.
That’s when the single most important skill a Lawyer can have is that charisma we mentioned above. Unless there is a really good and provable reason why the Violation should be legally dismissed, the Lawyer is going to have to swing into “sales” mode. The Lawyer better be able to sell air conditioners to Eskimos, or water to fish, because being persuasive is about the only thing that stands between the person and a Jail cell.
The Lawyer has to first explain to the Judge, in the best light possible, how or why the person failed to comply with the Court’s Order. Part of this is knowing the difference between an explanation and an excuse. A person will have to explain, for example, how they had to work late and missed a urine test. That will never count as an excuse, in the sense that it will simply excuse the miss, but that beats the heck out of saying “I was out on some friends boat, and we got all caught up partying, and I just forgot.”
Then, the Lawyer has to present options to the Judge in terms of what to do. Let’s go back to my suggestion that the reader switch places with the Judge. At the point where a person has, for lack of a more delicate way to put it, squandered the break given by the Judge, the Judge will be hard pressed to start looking for ways to be sympathetic and lenient and give another break. If you were the Judge, you might just figure that a couple of weeks in Jail will do the trick. And it sure would, but we want to avoid that, at all costs. Jail is a quick and easy decision, it seems appropriate for a Violation of Probation (read; a break that was squandered…), and, to the Judge’s thinking, it only makes the person pay the price they were spared by being given Probation in the first place.
Therefore, the Lawyer has to convince the Judge that the quick and easy decision IS NOT the best one. This involves a lot of considerations. From my point of view, one of, if not THE most important of those considerations is that the Lawyer needs to know the Judge. It really makes no sense to go before a Judge with a Lawyer who doesn’t know that particular Judge well, and know what is important to him or her, and know how that Judge thinks, and what he or she is inclined to do in similar cases. In other words, the right Lawyer is a Lawyer who has experience with the specific Judge before whom the Violation is pending. If that’s not the case, rather than paying the Lawyer’s Fee, the person will be paying for the Lawyer’s tuition. That should never be the case.
And while we’re on the topic of Fees, let me pull the curtain back a bit here. No Lawyer with the kind of skill and specific experience to do a really good job for a Client facing a Probation Violation is going to come at a bargain price. That’s not to say that every Lawyer who charges a lot is going to be good, but anyone who has the confidence, experience and skill to really make a difference in a Probation Violation will certainly not have put decades into getting there only to sell those skills on a low-bidder bases. For my part, I charge $1600 for a Probation Violation, beginning with ½ down, with the other ½ required to be paid before the actual Hearing date. I’m exceptionally good, I’m darn well worth it, and I am not interested in discussing discounts or payment plans beyond what I outlined above. While that may sound harsh, when is the last time you saw a “deal” on a BMW or Mercedes? Those products sell based upon their quality, so competing on a “low bidder” basis is not of interest to their respective manufacturers. While anything can be overpriced, as far as quality goes, you usually get what you pay for, and you certainly won’t get top notch quality for a low-bidder price.
To be worth anything, the Lawyer should know what the particular Judge in any case will or won’t do, and know that as a result of experience before that Judge or Court. Some Judges, for example, can be persuaded to NOT send a person to Jail, but will almost always extend any Probation Sentence the person has. Other Judges can be persuaded to simply “reset” the whole matter, and essentially call the Violation a “false start.” Still other Judges, while able to be persuaded out of a Jail Sentence, feel that imposing additional conditions, like more community service, or more Court “work programs” are appropriate. Knowing this beforehand is important, because it will only serve to frustrate the Judge and test his or her patience to have some Lawyer arguing for an outcome he or she would never dream of giving in the first place. In addition, while no one can preciseley predict exactly what the outcome of anything will be, part of what the Client is paying for is a fair and accurate assessment of what is likely to happen
By the same token, the Lawyers top, if not only priority, is to MINIMIZE the consequences to the Client. And a Lawyer should put his or her hear and soul into that. However, that passion is wasted if a Lawyer, unfamiliar with a particular Judge, is up there arguing for something the Judge wouldn’t consider in a million years, and using up the Court’s time to do little more than tick the Judge off even more.
In my Practice, I confine my Probation Violation cases to those Courts in which I regularly handle cases. I think it is important to be able to tell the Client what is likely to happen, or at least tell then what is NOT likely to happen. And of course, everyone wants to hear that NOT going to Jail is likely to happen.
The larger point is that NOT going to Jail is more likely if a Lawyer knows the Judge, doesn’t waste his or her time, and knows how to be persuasive. There is a time to be argumentative (during a Trial, for example) but arguing with a Judge at this critical stage is a losing strategy in every sense of the word. Thus, even though a certain Lawyer might be the best person around to defend someone in a murder case, that same Lawyer may be the last person to hire for a Probation Violation.
How do you know?
You read what the Lawyer has written on this subject. Are they straightforward and persuasive, or do they simply drone on with the worn out and tired old lines about being “tough” and “aggressive?” Then, pick up the phone and call. What kind of Office answers that call? Does the call go to voicemail, meaning there is no “Office?” How are your questions answered? Do those answers sound too good to be true? Chances are, as the reader has no doubt heard, if it sounds too good to be true, it probably is.
Most of all, do you like the Lawyer or Office with whom you’re speaking? If not, then there’s really nothing more to be said. I like to think anyone calling my Office will like my staff, and me, but I realize that what “fits” for one person may not “fit” for another. You’ll never know, however, unless and until you pick up that phone and call.
In the end, a person has to like the Lawyer they hire, and feel that person is charismatic and persuasive, but also has experience in front of the Judge before whom they’ll be Appearing. They need to feel confident that the Lawyer has their best interests at heart, and an intelligent plan in their head to minimize the consequences of a Probation Violation.
The bottom line, really, is that a Judge will essentially be thinking, if not asking, “I gave you a break and now you’re back for screwing up. Why should I even think of not sending you to Jail?” Then, it’s up to the Lawyer to convince the Judge that yet another break is both appropriate, and warranted, and to make that happen, or at least give his or her all in trying to do that.