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.
Up 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.