Articles Posted in Probation

As a Michigan criminal and DUI lawyer who is in court almost every single day, one of the most common situations I see involves someone on probation for a criminal or DUI charge testing positive for alcohol or drugs (often, but not always, marijuana). If you’re reading this, it’s likely that you, or at least someone you care about, is or will be facing a probation violation for a positive test result. In almost every case, there is no dispute about how or why there is a positive test result, except that some people will still try to offer what is known as the “Nyquil defense” and blame the detectable presence of alcohol on the use of something like cold medicine. Let’s not waste any more time than necessary on this: There is no sitting Judge who will buy this story (you have to gulp the stuff by the multiple bottles for it to show up) which is why it is has been nicknamed the “Nyquil defense” in the first place. If that’s your excuse, then you’ll need a new one. The point here is that, almost without exception, a probation violation for a positive test result happens because a person has, in fact, used the substance that showed up. That will be the focus of this article.

!0_0000_MORGUE_DrugTest_UrineSpecimenCup.jpgIn many cases, a person will just take the chance that he or she won’t get called in for or will otherwise have cleaned out enough to pass a breath or urine test. Most of the time, it’s not like the person has been partying up a storm; failing a test is usually a case of bad luck and bad timing. Even so, the reality for anyone facing a probation violation for a positive breath or urine screen is that you’ve been caught, and absolutely everyone knows that going back in front of the Judge is not going to be fun. Sure, there are 2 sides to every story, but in the case of a probation violation, unless you can clearly show that the test result is wrong, the Judge’s side of that story is the only one that matters. For everything we could say, the bottom line is that the Judge is looking at someone he or she could have put or kept in jail, and who, despite the fact that it was explained that staying out of jail requires not drinking alcohol or using drugs, chose to do so anyway. There is no way to sugar coat or soft peddle this.

At this point, it is tempting to go off on how it’s unfair that a person who has never been in trouble before and who got caught in one mistake is penalized to the point of not even being able to have a glass of wine with dinner, or for some special occasion. The thing is, none of that matters. When someone is placed on probation and a condition of that probation is to refrain from drinking alcohol or smoking pot, it basically amounts to a kind of “deal” with the Judge. From the Judge’s point of view, NOT drinking and/or NOT smoking pot is the price a person agrees to pay to stay out of jail. A person is perfectly free to reject the terms of that deal, but he or she must understand that by doing so, the Judge is likewise perfectly free to reject the terms that called for the withholding of punishment, like jail. In other words, as much as it may suck to not be able to have a drink while on probation, it is what it is. All the frustration about it is nothing more than hot air that won’t help a bit if you’ve tested positive. Everybody understands this because, as much as they might express these feelings privately, no one is dumb enough to do so to the Judge. So how do we fix this situation?
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In a recent article, I looked at how the court system has an inherent bias regarding alcohol in criminal and DUI cases. The examination in that piece was, of course, from my perspective as a Michigan DUI lawyer. A few weeks ago, I received a nice, descriptive email from a past client in which he detailed his experience of having gone through the DUI process. What a gift! Of course, I was glad to hear from my client (he is a really nice guy, and when you read his email, you’ll quickly get a sense of that), but I was even more thrilled at the unexpected gift of a long email that I could use to show what it’s like to go through the DUI probation process from the client’s perspective, especially in light of how my client related it directly to my recent article about “The Alcohol Bias,” where I looked at how the court system is naturally inclined to suspect a drinking problem in just about every OWI (Operating While Intoxicated) case that goes through it. The set up here is important: My client had provided a High BAC breath test result in a drunk driving case that took place in THE undisputed toughest court in the Detroit area, located, of course, in Oakland County.

Thumbnail image for Insiderer 1.2.jpgAs you’ll see from the email itself, my client didn’t feel like he had been treated too harshly, or in any way treated unfairly. Instead, he felt the full weight of the court system’s built-in tendency to “over-diagnose” the existence and/or extent of a person’s alcohol problem. The term “over diagnosis” is not some crafty phrase I came up with as a DUI lawyer, but rather something I formally learned about doing post-graduate work in addiction studies. This is a very real concept, well understood in the clinical community, yet virtually unknown in that judicial system that suffers from it. It is relevant here because the facts of this client’s case were somewhat unique, and he was very much at risk to be ordered into an expensive and time consuming IOP (Intensive Outpatient Program), and all kinds of other counseling, education, rehab, testing and treatment. We worked hard and intelligently to minimize that, and, as you’ll see, my client was able to carry away enough from our time together to help himself from being stuck in AA that didn’t “click” with him during his time on probation. AA is great for some people, but certainly not everyone. Unfortunately, the court system is just not in a position to analyze and then act with such clinical precision, so many people find themselves in the cross-hairs of the kind of “over treatment” caused by over diagnosis.

To be clear, I have no dislike for or problem with AA in general, but I believe it is best for those who really need and want it, and will fit well with it. You may go to a particular church and find lots of comfort and inspiration from your Pastor. Good for you. That does not mean, however, that it’s the place for everyone. You may hate my favorite restaurant. Some people thrive in AA, while others hate it; some like it, some tolerate it, and some just don’t connect with it. As the saying goes, “Different strokes for different folks.” The court system, unfortunately, often sees AA as a kind of universal, super-cure-all, even though it is certainly not. If there’s one lesson that seems to go perpetually (and curiously) unlearned, it’s that sending someone to AA who does not belong there, or who is turned off by it, will almost certainly never produce the desired outcome. In other words, if someone is forced into AA who doesn’t like or need AA, then they’re not going to get any help from it. That’s like sending a skinny person to Weight Watchers. Likewise, even if someone needs help, forcing him or her to get it from AA alone is rather short-sighted, given that modern research has and continues to validate an ever-widening panorama of helpful treatment options, including things like Cognitive Behavioral Therapy (CBT), brief interventions, individual counseling, group therapy and other support groups besides AA (Smart Recovery, Women for Sobriety, ect.). With that as our background, let’s move on to my client’s email (reprinted exactly as written, including typos, with the exception of the removal of his Probation Officer’s name), and get his take on all this:
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As a Michigan Criminal and DUI lawyer, I sit in various courtrooms almost every single day, and often several times per day. I get the chance to watch more cases that you could count. An important part of what I do involves handling probation violation cases. Like so many of my other articles, the inspiration for this short installment is something I observed during the week this article was written. It was a busy week, and I was really all over the map in terms of cases and the various courts I had to visit. For some reason, an unusually large number of the matters I heard last week were probation violations, even though I had none on my own schedule. Again and again I heard people step up to allegations that they either drank alcohol, used drugs (particularly marijuana), or missed a test while on probation, despite having been specifically ordered not to do so by the Judge.

Thumbnail image for Bax 1.2.jpgIn the world of probation violations, testing positive for alcohol and/or drugs, or missing a test, are far and away the most common reasons that someone has to go back before the Judge. In one of the cases I saw, the lawyer, to his subsequent regret, tried what the Judge herself called “The Nyquil Defense.” I’ve written about this, and so have other lawyers, but it bears repeating: No Judge believes that a breath or urine test that’s positive for alcohol was caused by using cold medicine. This old excuse has been so universally discredited and rejected that even if someone really did produce a positive test from the use of something like Nyquil or Vicks Formula 44, he or she is screwed. It won’t fly. There’s a lot to this, but it boils down to the amount of cold medicine a person would need to use to test positive, and the math never adds up. In the real world, it’s assumed you’d have to chug a couple of bottles of the stuff, and that, no matter how bad you may have felt, sounds a lot more like “abusing” the stuff than “using” it. You won’t even get that far, however.

We can debate the how and why of all this until the stars burn out, but the plain fact is that violations like this just happen. If you’re reading this, it’s probably because you, or someone you care about is facing a probation violation, and there’s a very good chance that it’s for a positive alcohol or drug test. The bottom line to looking for a lawyer is to find one who can keep you out of jail because you don’t need to be a rocket scientist to figure out that the Judge is not going to be happy when you go in front of him or her for a positive test result. Jail is always a real possibility in any probation violation, but the logic behind it is a lot clearer when you’re standing before the Judge for doing something he or she specifically told you not to do. When you stop and think about it (and you probably have done a lot of that), there aren’t really a whole lot of good excuses to help you out. This is the exact point where the charisma and persuasiveness of the lawyer you decide to hire becomes the most important thing in your life. Let’s put this in context…
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In some of my criminal law, DUI and driver’s license restoration articles, I have gone beyond a mere discussion about “the law” and have tried to pull back the curtain a bit, so to speak, in order to help the reader understand the real working role of the lawyer, and not just in the sense in some way that amounts to nothing more than an excuse to say “call me!” If we’re going to be brutally honest, all doctors, dentists, lawyers and even funeral directors are in business. At the end of the day, every professional offers his or her services to make a living. Sure, most of us really want to help people, but you’re not much of a professional at anything if you’re not success driven. For my part, I want to receive a rewarding fee for what I do, and in exchange feel like I’m providing a top-notch service to my client. I want to be the best at what I do. And while this all sounds great, what does it mean, and why should any of this matter to you?

Ing.1.2.jpgIf you are looking for a lawyer for a DUI or driver’s license restoration case, then you already know that the field is crowded, and there is a lot to sort through. The same thing goes for anyone facing a criminal charge and looking for a criminal lawyer. Beyond your own inquiries, you may get recommendations from friends and family. In the strongest way possible, I’d advise against just “jumping” at anyone’s recommendation, even if the lawyer who gets the endorsement is me. You should always check around on your own, read articles, see what kind of information any given lawyer has posted, and then make some phone calls. There simply is NO downside to being a smart consumer and doing your homework.

There’s an old saying to the effect that “information is power.” Actually, it’s not. At best, information is only potential power. Any real power comes from using that information to your advantage. If you go back through my blog articles, for example, especially many of those written earlier, I examine just about every legal situation a person could possibly face. Therefore, when I say “information,” I mean a lot more than meaningless prattle about being “tough” or “aggressive.” Labels, especially those we use for ourselves, fall far short of any kind of useful information. One of first things you should look for in the search for a lawyer is genuine value, and not just in terms of cost, or price. “Value,” in this sense, means importance to your life. What is the value of being able to breathe? That’s not something on which you put a price. What’s the value of winning back or keeping your driver’s license, or keeping a criminal conviction (perhaps for something like possession of marijuana) off of your record? And there’s more…
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Whether it’s front and center, as in a Michigan DUI or driver’s license restoration case, or less obvious, as in many other kinds of criminal cases, the entire Michigan court system has what at times seems like a fixation on alcohol. If you consider a domestic violence case, for example, or a leaving the scene of an accident charge, there is practically a systemic assumption that the person facing the charge was drinking, if not drunk, at the time the incident took place. In this article, I want to explain why, in so many cases, the path through the judicial system leads back to alcohol, and what can and should be done in every case to help with that. Before you dismiss this as just more meaningless prattle by some lawyer, please note that I write this article as a lawyer with very extensive and specialized training in the field of addiction studies. Given the system’s focus on the role of alcohol in so many kinds of cases, it is important that, in order to best protect my client from the “alcohol bias” inherent in the judicial system, I walk into a courtroom with more expert knowledge about alcohol and substance abuse than anyone else in there.

alkie 1.2.jpgIt has long been known that alcohol (and drugs) are “involved” in all kinds of criminal cases. You could put the most socially sheltered person in the role of Judge, and it wouldn’t take too long for him or her to connect the dots and see how drinking sometimes leads to all kinds of trouble. The day this article was written I resolved a case where a young lady had been charged with indecent exposure in a local, Oakland County court. The short version of the story is that she was at a bar with a group of people and she and a male suitor wound up outside, in a parking lot, where the romance heated up a bit too quickly and they were seen in a very compromising situation. The police were called, and both were arrested and ultimately charged with indecent exposure; I represented the woman. I was able to have things worked out so that nothing will ever appear on her record and the whole thing will just go away, but before the Judge decides on any probationary conditions, he ordered that she be “screened” by the probation department. Realizing this happened out behind a bar, it didn’t take much for the Judge to figure the parties here had been drinking. Now, he wants to make sure that this incident wasn’t caused, in some part, because my client has any kind of problematic relationship to alcohol.

In the young lady’s case, the role of alcohol, and therefore the Judge’s concern about it, is pretty obvious, at least in this one incident. Experience teaches anyone in the criminal justice system, from police to Judges to criminal lawyers, like me, that all kinds of bad things can (and often do) happen when drinking is involved. It is basically assumed that anyone who leaves the scene of an accident does so because he or she was drinking. Many, if not most, disorderly person charges occur because someone had a little too much to drink. Statistics show that alcohol plays a role in the majority of domestic violence cases. When kids get into trouble (consider things like mailbox vandalism, for example) it is common to find out they had been drinking. Even stalking type charges, including harassing phone calls, often take place when the actor’s inhibitions have been lowered after having had a few. Add all of this up over years, and then decades, and the court system has seen a clear pattern that now has it as concerned about the presence of an underlying drinking problem as the actions that gave rise to a criminal charge in the first place. So what does all this mean to you?
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Tying in with my last article about probation violations, the inspiration for this installment comes from a recent experience handling a DUI probation violation in a case that also involved a possession of marijuana charge. I was in one of the indisputably “toughest” Courts in Michigan, and certainly in the Detroit area. My client, who, after being charged with both drunk driving and possession of marijuana, had used a court-appointed lawyer, was facing his first probation violation. It became clear to me early on that much of the problem, and “problem” will become an important word here, was the utter lack of proper representation in the underlying drinking and driving and marijuana cases, which, when coupled with the tough court where the case was pending, combined to exacerbate a potential nightmare. The remaining background here is simple; the client had tested positive for drinking while on probation.

request__bad_lawyer_by_ccc7ccc-d542dim.jpgBecause he used a court-appointed lawyer, his “representation” essentially consisted of a few minutes’ conversation in the hallway with the legal defender who, as is usually the case, had sat down with the prosecutor before the Judge took the bench and gone through his or her whole pile of cases, quickly agreeing to a “deal” for each. In this client’s case, the “deal” wasn’t any kind of deal at all. He wound up pleading straight up guilty to both charges. Had a retained lawyer been involved, things would almost certainly have worked out better. At a minimum, had I handled his case, I would have gotten rid of the marijuana charge, or at least kept it off of his record, and the DUI charge would have almost certainly been worked down to something less severe. This assumes, of course, that the evidence against him was solid in the first place. I have no way of knowing whether the case against him was good or bad; I came in at the point where the charge had long ago been resolved and he was already on probation, ordered to not drink, and regularly tested to make sure he did not. Despite all that, he did pick up a drink, test positive, and then get violated.

The whole bias of the court hearing this case, with respect to DUI cases in general, and, by extension, this client in particular, is that every DUI is strong evidence of an underlying drinking problem. There are some courts that seem to try to outdo other courts in terms of making it seem like any and every DUI offender had a troubled relationship to alcohol, but the court on this case takes the cake in that area. One could argue that the whole judicial system has some degree of this bias, and I certainly agree that there is more than a little truth to this characterization. Beyond all that, however, my client found himself in a court that simply doesn’t recognize that a DUI can sometimes be an out-of-character, one-shot deal for someone.
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As a Michigan criminal and DUI lawyer, the whole notion of “probation” fills a good part of each of my workdays. This article will concentrate on what happens when things don’t go as planned, and you wind up facing a probation violation. To frame our discussion, we must remember that at its most basic, probation is an alternative to incarceration. Sometimes, when a person hires in at a company, he or she is placed on “probation” for the first 90 days; in that case, “probation” is an alternative to being unemployed. Back in the judicial world, being put on probation is seen as being given a chance to show that you can follow orders, stay out of trouble, and otherwise be trusted. When it is alleged that you somehow violated probation, the perception flips to your being seen as unable to follow orders, incapable of staying out of trouble, and not being trustworthy. If it is determined that you did, in fact, violate your probation, the Judge must decide what to do, which typically means how to punish you further. The biggest threat within that concept of “punishment” is, of course, getting locked up. And that is precisely what you hire a lawyer to avoid.

Doggy 1.2.jpgThere are only 2 possible answers to the charge that you have violated some provision of your probation order: Either you did, or you did not. Thus, if you have tested positive for alcohol, the bottom line is that you either drank or not. This does not include that incredibly large number of people who, after a positive alcohol test, will claim that they used something like Nyquil or Vicks Formula 44. And if the implication of what I’m saying here is not obvious enough, let me be even more direct; no one buys the cold medicine excuse, so don’t make things worse by trying that one. This very situation points to the uncomfortable yet undeniable fact that most probation violations are solid, meaning that they are not based upon false allegations. Whether you’re violated because you tested positive for something, missed a test, picked up a new charge, or did not complete something you were ordered to do, it is really only in relatively few, special cases that the whole allegation is just plain wrong.

I can safely say this: Unless you have a “special case,” you’re going to need a special lawyer. Even if you are completely innocent of having violated your probation, you can’t afford to hire some bargain lawyer to stand next to you and mumble excuses; you need a clear, dynamic and sharp communicator to explain to the Judge how the probation officer has it all wrong. And when you actually have violated some condition of probation, which, in the real world of probation violation charges, is more often than not, it becomes imperative to convince the Judge to give you another chance. Here, you need to step up and hire a lawyer who clearly stands out from the pack. It is my intention to be direct and honest here, so let’s get to it…
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1. Driver’s License Restoration and DUI cases share the same “DNA”

In the first article from this week, I examined the overlapping roles of being a Michigan DUI lawyer and a Michigan driver’s license restoration/clearance lawyer. I noted that day-to-day experience in the courts of the Greater-Detroit area handling DUI cases is helpful in my role as a license appeal lawyer, when I appear before the Michigan Secretary of State’s Driver Assessment and Appeal Division (DAAD) hearing officers. While it’s pretty much true that everyone has a general understanding that a DUI carries certain license sanctions, particularly in a case beyond a person’s 1st offense, or where there is a “troubled” driving record, knowing the finer points of the administrative sanction imposed by the Secretary of State, beyond those that are part of the criminal law, is very helpful, and can sometimes impact the strategy I employ to avoid certain consequences for my client. Likewise, in-depth knowledge of DUI cases is equally helpful in winning back driver’s licenses. Here are some of the more important points from the license restoration/DUI article:

  • A Michigan DUI lawyer will understand at least basic driver’s license consequences
  • A Michigan driver’s license restoration lawyer knows a lot more about driver’s licenses
  • Most driver’s license restoration cases arise because a person has multiple DUI convictions
  • A thorough understanding of how DUI cases work is helpful in winning a license appeal
  • Comprehensive knowledge of the licensing rules is often critical in a DUI case
  • What will happen to a person’s license can impact how a DUI case is handled, and ultimately resolved
  • Beyond just DUI cases, driver’s license rules can impact how DWLS and revoked license cases are handled
  • I have saved many a license because my understanding of the licensing rules goes way beyond the criminal law and the consequences the Judge will impose
  • A better DUI lawyer knows the ins and outs of driver’s license appeals
  • A better license restoration/clearance lawyer knows the ins and outs of DUI cases
  • It is better still to know both areas well from working with them daily

 

Now, on to “What will happen to me in a probation violation?”…
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There are many possible reasons why a person may wind up violating his or her probation. Most frequently, a probation violation has to do with missing or failing a breath or urine test, picking up a new charge, not completing something the Judge had ordered, skipping out from probation altogether, or just not paying fines and costs. Sometimes, a person may be the victim of a “false positive” test result, or may have had to miss a test for circumstances beyond his or her control. Whether it’s for one of those reasons, or any other, the real question anyone facing a probation violation wants answered is “What is going to happen to me.”

violation 1.2.jpgIn my other probation articles, I have addressed many different aspects of probation violation cases, but not the ultimate question: What is going to happen to me? Obviously, it would take a fortuneteller rather than a lawyer to give a specific answer in any particular case, but it’s probably fair to say that anyone going online to look this stuff up is most interested in what may or will happen to him or her. I know I would be…

We can skip all the discussion about the probation officer. If you’re facing a probation violation, all the “could have, would have, should have (coulda, woulda, shoulda)” stuff in the world doesn’t matter, because you’re already at the stage where you need to go to court and appear before the Judge. It’s kind of like a traffic ticket where you feel the cop wasn’t fair, or justified in writing you up; maybe not, but that part of the transaction is in the past, and the only thing left is to address the matter in court. Accordingly, our efforts have to be directed forward, into the future, rather than backwards, in rehashing the past. We need to convince the Judge that you have a false positive test result or a legitimate reason for something like missed a test. In cases where there isn’t a technical or practical excuse for the violation, we have to convince the Judge to go easy on you.

It is important to remember that probation is always an alternative to incarceration. From the Judge’s point of view, probation amounts to a kind of bargain, sort of like a contract: You do this, don’t do that, and I won’t stick you in jail. Think of the bank or finance company explaining a car payment: If you make the payment, you can keep the car. When you don’t make the payment, however, the bargain, or contract, is considered breached, and the deal can be called off. The car gets taken back, and you’re on the hook for the money. In the same way, if you don’t live up to your end of the probation deal with the Judge, the most important part of the deal (staying out of jail) can be called off, and you can get locked up and/or face other consequences. This is exactly what we have to avoid…
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The best outcome in any DUI case is to get the whole thing dismissed, or otherwise beat the case, so that nothing happens to you. Most people, however, aren’t so completely lucky. Short of nothing happening as a result of a DUI arrest, the less that happens to you, the better. In a very real way, success in a Michigan DUI case is judged by what doesn’t happen to you.

Less-is-More-Final-1.2.jpgWe can see that sometimes, in a high-profile DUI case, a Judge will order community service in order to remind a celebrity that he or she is not above the law, and subject to the same rules as everyone else. Getting caught speeding in your 2014 Lamborghini after having a had a few too many doesn’t entitle anyone to any better treatment that someone caught weaving on I-696 in his or her 2004 Chrysler Sebring. In the real world, less community service (or even none), and really less of everything, is the yardstick by which “success” is measured in terms of a DUI outcome.

You’ve probably already figured out that unless your DUI gets thrown out of court, you’re going to wind up on probation. This is true even in 2nd and 3rd offense cases. Interestingly enough, there are still a few places where, at least in a 1st offense DUI, if everything is done just right, a person can either skip probation altogether, or, at least wind up on what’s called “non-reporting” probation. Non-reporting probation means that all you have to do is not get in trouble for however long the Judge orders, and everything will be fine. In a recent 3-part series of articles, I examined what “probation” means, and I reviewed the different “do’s and don’ts” of probation. Here, it’s more relevant to talk about how you get on probation, meaning the process by which you wind up standing before the Judge and are ordered to follow that list of “do’s and don’ts.”

Michigan law requires that, in a DUI case, before the Judge can pass sentence, you must complete an alcohol screening (written test). This is handled by each court’s probation department, and is part of a larger process called a “PSI,” or pre-sentence investigation. The “PSI” can also simply be called the “screening,” or “assessment.” No matter what it’s called, it boils down to the same thing, in every case, and in every court. Once your charge has been resolved, and before you come back to court to be sentenced by the Judge, you have to be interviewed by a probation officer, who will also hand you a written test to fill out. This test is scored, numerically, and the probation office compares your score to a scoring “key” to determine what kind of risk you present in terms of having or developing a drinking problem. This is hardly any kind of clinical assessment, but it is, unfortunately, exactly how the law does things. Even so, we can make it better…
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