Michigan Criminal Defense Lawyer Blog

In my role as a Metro-Detroit DUI Lawyer, I answer every conceivable kind of question about the DUI process. One question that virtually everyone asks is about Probation. I'm asked everything from what "Probation" means, to what it entails, whether or not I can help my Client avoid it, and if any kind of exception can be made to accommodate some circumstance a person facing a DUI has. This article will be a brief, minimalist summary of what Probation means in a DUI case.

Within the more than 120 DUI articles I have on my Blog, some make a rather detailed examination of the whole Probation process, requiring 2 installments to do so adequately. This article will be the polar opposite of that. If I've had to learn anything the hard way, it's that not everyone is interested in the textbook treatment and microscopic analysis that defines most of my earlier articles.

Probation is, first and foremost, an alternative to incarceration. In a DUI case, it is given as an alternative to Jail. To be clear, a person can be put in Jail for a few days and then be let out on Probation, but in most cases, and in this article, we'll be referring to Probation in lieu of Jail. Probation comes in 2 major types: Reporting, and Non-Reporting. You don't even have to know much about Probation to know that Non-Reporting sounds better, and it is; everyone wants Non-Reporting Probation. Probation is usually given in terms of either 12 months (most common), 18 months (more common in Oakland County), or 24 months (usually handed out in 2nd Offense cases).

Non-Reporting Probation simply means that you don't have to show up and report, in-person, to a Probation Officer. Sometimes (although rarely), it can mean that a person has to write-in periodically and either complete a form, or in some other way communicate with their Probation Officer, who is often just called the "P.O."

Here's the real skinny: In a DUI case, Non-Reporting Probation is a possibility in certain Courts in Macomb and Wayne Counties, but will never be given in Oakland County. If you have a DUI in any Court in Oakland County, you are more likely to win the Powerball Lottery AND the Publisher's Clearing House Sweepstakes on the same day than you are to get Non-Reporting Probation.

Reporting Probation is far more common. Reporting Probation requires that you go to the Probation Department (usually in the Court where your case was heard) and meet with a Probation Officer. Most of the time, this is done once a month, although a person can be required to report more or less often than that. Part and parcel of Reporting is that you fill out a form that asks if anything has changed since your last Report. Here, you're supposed in indicate if you've moved, changed jobs, or anything like that. You're also asked if you've had ANY Police contact.

The defining element of Probation is "Conditions." Probation is really a specific period of time during which you must not do certain things, and very often must do others. This is really no different that being hired for a job for a probationary period. The company wants to make sure you do certain things, like meet quotas, and NOT do others, like show up late, or miss time. In a DUI case, the standard conditions require that you pick up no new Criminal Offenses, and that you do not drink or use any kind of drugs. This is often backed up by some kind of breath or urine testing, to insure compliance.

Continue reading "Probation in a Detroit-area DUI" »

In the prevous article, we looked at how alcohol testing as a condition of release from Jail after a DUI Arrest is becoming common in the Courts of Macomb, Oakland and Wayne Counties. Of course, this is done to ensure (or, some might say, force) compliance with a "no drinking" condition of a person's Bond. Testing does not stop once the case draws to a close, however. Testing is very often ordered as a condition of Probation, as well. In fact, if you are required to test as a condition of Bond, you can pretty much count on being required to test through Probation, as well, although there is room to have the Judge make some changes to that, including cutting down the frequency with which you test.

Alcohol testing comes in several different varieties, but the most popular are breath tests (either through PBT's at a testing site, or samples blown into an ignition interlock system), urine tests, and a contraption called a S.C.R.A.M. tether. In general, testing is a lot like voice recognition software; it usually gets things mostly right, but often gets things wrong, and is never perfect. Unlike giving voice commands to your smart-phone, however, and winding up calling the wrong number, a bad alcohol test result can get you thrown in Jail.

As a Michigan DUI Lawyer, I am contacted almost daily about problems with alcohol testing. I get calls about missed tests, bad equipment and positive tests. To be clear, many times the positive (or missed) test means that the person tested was, in fact, drinking, but even then, they need someone to get them out of a jam. Whether it's a false positive, an accurate positive, a missed test, or trouble with the equipment, alcohol testing brings lots of problems, and I have to solve them.

I am hired just about every week by someone who has run into problems with their alcohol testing. These "problems" are either alleged violations of Bond or Probation conditions. To help a Client facing an alcohol testing violation, I have to wear several hats: I have to be a Lawyer, of course, but I also have to have a working scientific and technical knowledge of what's involved in a particular kind of testing, and what can affect the results. This involves knowing, for example, how certain chemicals or medical conditions affect a person's performance on a particular a test, or why a false positive result occurs.

Beyond that, I have to be able to define the issue at hand (meaning bad equipment, bad result, or bad test) and then translate it to the Judge. Doing that means I need to be a diplomat and a negotiator. There are times when a Judge is going to get it wrong, and when I see that coming, I have know how to react to protect my Client. If a Judge refuses to accept that a test result is wrong, then that part of me with "diplomatic" skills won't press on in a way to make the Judge angry. In a Courtroom, I have to argue my case, but never argue with the Judge. Remember, the job at hand is to make things better; however wrong the Judge might be, arguing with him or her will only make things worse.

This is particularly true if the violation is for a positive test result that is accurate, meaning that someone tests positive for alcohol because they really did drink. This happens a lot, and, truth be told, "correct positive" results are a lot more common than "false positives." An accurate positive test result occurs because no one thinks they'll get caught. Either they try and "time" their drinking, or they take a chance that they won't be called in for a test on a certain day, only to find out they called it wrong. In these cases, my whole focus is on damage control. Let's be honest, when anyone in this situation calls me, they have one thing on their mind - staying out of Jail. Unless I get lucky, and find some glaring evidentiary defect in the test (not likely), I'm going to be the only thing that stands between my Client and a stint in the pokey. I need to find the magic spot in such a mess and use it to keep my Client from getting locked up.

Continue reading "Alcohol Testing Violations in Michigan DUI Cases" »

After nearly 22 years of Practicing Criminal Law, handling DUI cases, and helping people whose Licenses have been Revoked for multiple DUI cases get their Driver's Licenses Restored, I have seen pretty much everything once or twice, and a few things countless times. One "constant" that impacts each of the 3 kinds of cases I handle traces back to a breath or urine test that is positive for alcohol or drugs. In this article, we'll examine that phenomenon in the context of Probation, and how it gives rise to the dreaded "Probation Violation."

Another "constant" mixed up with the whole concept of Probation Violations is that a somewhat significant number of people wind up testing positive for alcohol or drugs during the course of their term of Probation. If, in the larger picture, the number or such positive tests were incredibly small, there wouldn't be any need for continued testing. But it's not. The number of Probationers who get caught testing positive is surprisingly high. This reinforces the perceived "need" for testing to ensure compliance with Court-Ordered abstinence.

Probation Officers learn, early on, that a positive test can come from anyone. Whether the Probationer is the nicest soccer mom, or the most educated corporate vice-president, just an average Jane or Joe, or the most hardened, ex-con, turning up positive on an alcohol or drug test, whether it be as the result of a breath test, urine test, or even while on some kind of alcohol monitoring device, like a "scram" tether, is a daily occurrence.

Anyone who tests positive knows if the result is correct or not. In reality, most positive tests are actually the result of someone drinking or using, and nothing else. Once in a blue moon, a person might work in a chemical factory and be exposed to fumes that trigger a "false positive" on a "scram" tether, or might walk into some testing facility with such chemicals soaked into their clothing, but this kind of exception is rare. Most of the time, however, what really happens is that a person has tried to time a test, and simply gets popped.

These simple facts make for hard cases. Anyone reading this is likely doing so because either they, or someone they care about, is in this situation, and has tested positive. Not many people are that interested in this topic unless it applies to them, and has immediate relevance, and a positive test result is as relevant as it can get. Positive tests happen every day. It's frightening when that happens, but I'm here to help. To do that however, we have to start off being candid and honest, and not sugar-coat anything. Most positive tests are positive because a person drank or used, and not because the test is screwed up, or the person took cold medicine, or Aunt Bertha put too much vanilla extract in Uncle Bob's birthday cake, or whatever other story you can dream up.

What do you do if you're facing a Probation Violation, or know you're going to be facing one, for a positive test? You probably already know you need a Lawyer, but what kind of Lawyer? How much should you pay? Who do you turn to at this critical moment?

Continue reading "Probation Violation for Positive Test Result - The Science of Persuasion versus the Science of Testing" »

In Part 1 of this article we drew a rough outline of what "Probation" means. In Part 2, we saw how Macomb, Wayne and Oakland Counties were each different from on another, with Macomb being the best in which to face a DUI, Wayne being not far behind, and Oakland really coming in as the last place one wants to wind up before a Judge after a Drunk Driving Arrest.

In this third and final installment, we will look at both standard and "special" conditions of Probation, and try and get a feel for what being "on Probation" for a DUI case really means.

At this point, we can move on from our County-by-County comparison, and examine what "Probation," and being on it (especially for a Drunk Driving charge), really means. Probation begins with the Judge signing an Order, which is a document called an Order of Probation.

An Order of Probation is a list of things the Judge Orders a person to do, as well as some they are NOT allowed to do. All Courts, independent of location, forbid many of the same things while a person is on Probation. Let's look at some "standard" conditions of Probation, beginning with the things a person is Ordered NOT to do:

• Not violate any criminal law of any unit of government.
  
• Not leave the state without the consent of this court.
  
• Make a truthful report to the probation officer monthly, or as often as the probation officer may require, either in person or in writing, as required by the probation officer.
  
• Notify the probation officer immediately of any change of address or employment status.
  
• Not purchase or possess a firearm.
  
• Not consume any alcohol.
  
• Not use or possess any controlled substances or drugs without a valid prescription (medical marijuana is specifically prohibited by many Courts).

In some cases, a Judge will add "special" conditions. Most often these are things like:

• Not to be Arrested or Charged with any crime. No conviction is required.
  
• Not to enter into any bars, or establishments whose primary purpose is the selling of alcoholic beverages.
  
• Not to drive a motor vehicle without a valid License.

Probation is often thought of as kind of an order to just "stay out of trouble," and to a large extent, that is true. However, in a DUI case, a person is quite likely to be required to do certain things beyond just not getting in trouble. Some of these things are pretty standard, while others are unique to either the particular case, or the Judge presiding over it.

Continue reading "What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 3" »

In Part 1 of this article, we began to sketch out a general concept of Probation. Here, in this second part, we'll add more detail, and really get a handle on what it means to be "on Probation" for a DUI in Macomb, Wayne and Oakland Counties. Let's refer back to our example from the first part of this article involving Dan the Driver and his 1st Offense DUI, and see how his case would likely play out in a Court from each of the 3 Counties.

First, we'll assumImpaired Driving" (OWVI). e that the evidence against Dan is solid, that the case is not going to be magically dismissed somehow, and that his BAC (Bodily Alcohol Content) was about a .14, which is not too high (remember, .17 and above can trigger a "High BAC" charge).

Second, we'll assume that Dan's DUI, meaning his original charge of "Operating While Intoxicated"(OWI) charge will be plea-bargained down to the lesser charge of "Impaired Driving" (OWVI).

Third, we'll assume that I am handling the case. I'll make sure that when we talk about Dan being put on Probation, that means Probation with NO Jail. DUI cases are special, and properly handling them requires specialized knowledge and skill. While I can't speak for any other DUI Lawyers, I can enthusiastically advise the reader to NOT hire some Lawyer who just "does" DUI cases - along with all kind of other stuff.

Finally, we'll assume that Dan has been thoroughly prepared to take his written alcohol assessment test, and undergo the whole PSI interview.

In Macomb County, it can almost always be worked out so that a person would face no more than a year's Probation in any Court. In certain places, like Shelby Township and New Baltimore, I can probably keep my Client off of any kind of Probation, meaning that we might be able to wrap his or her case up with little or nothing more than the payment of fines and costs. In other cities, like Eastpointe, Roseville, Sterling Heights and Warren, I might be able to help the Client avoid what's called "Reporting Probation." Instead of having to show up once a month and meet with a Probation Officer, a person can get "Non-Reporting Probation," and will simply be under the "eye" of the Court for the next year. Obviously, if the person gets Arrested and/or Convicted for a new Offense, he or she will be in big trouble.

In places like Clinton Township, Romeo, and St. Clair Shores, I should be able to keep my Client's Probation to no longer than a year, although these Courts will generally require that the person does, in fact, Report for that year. If my Client's case is pending in one of these Courts, I will shift the focus of our alcohol assessment and PSI preparation from trying to completely avoid Probation, which is not likely, to avoiding the kind of "do this and do that" Probation that is sometimes called "Probation from Hell."

The bottom line is that Macomb County still is the best place to wind up facing a DUI. Now, we'll turn our attention to Wayne and the Oakland Counties.

Continue reading "What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 2" »

As a Michigan DUI Lawyer who prides himself on keeping his Clients out of Jail, dealing with "Probation," in virtually every sense of the word, is an everyday thing for me. In many of my other Drunk Driving blog articles, and within the various DUI sections of my website, I examine the rather critical and important role of the Pre-Sentence Investigation (PSI) process carried out by a Court's Probation Department, including the vital part that the legally required alcohol assessment test plays in the ultimate outcome of any DUI case. As I have noted, the PSI, and alcohol assessment test that is part of it, determines, more than anything else, what happens to a person as a result of DUI.

This article will shift the focus from affecting the outcome of the PSI process to the very outcome, itself. We'll look at what being "on Probation" really means, how the conditions and terms of Probation are decided, and how that is different from Court to Court. We'll cover this subject in 3 installments in order to really understand Probation, and to make sense of it.

At its simplest, Probation is an alternative to Jail. A person is put on Probation with the understanding that they will follow the rules (whatever those rules might be) set out by the Judge, at Sentencing, or else get to Jail for Violating Probation. Beyond this rather simple instruction to look at the obvious, written instructions, we must also read "between the lines" in order to get a complete picture of what being on Probation really means.

Although it is an alternative to Jail, Probation can be handed out along with Jail. The maximum legal penalty in a 1st Offense DUI in Michigan is 93 days in Jail, a Fine of up to $500, plus Court costs. Let's look at a typical 1st Offense case as an example:

If the Dan the Driver gets a 1st Offense DUI, and the Judge sends him to Jail for 93 days, he or she cannot put Dan on Probation. Dan will have "maxed out" his Sentence, and therefore, upon his release, not be subject to any further punishment by the Court. The Judge can also elect to NOT send Dan to Jail, and put him on Probation for a year, or two, with the understanding that if he screws up anywhere along the way, he can be sent to Jail for any period of time up to the whole 93 days in Jail.

A less common, but perfectly legal option is to send Dan to Jail for some period less than the full 93 possible days, and put him on Probation, with the understanding that if he screws that up, he can be sent back to Jail to serve any part of the un-served 93 days. Thus, if Dan is sent to Jail for 21 days, and then stuck on Probation for a year, there are 72 un-served day of Jail that the Judge still has "in the bank" that he or she can hand out, if Dave messes up somehow.

For all of that, "Probation" usually means "no Jail."

Continue reading "What Being "on Probation" for a DUI in the Detroit-Area of Michigan Really Means - Part 1" »

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:

1. Missing a urine or other chemical test
2. Testing positive for alcohol and/or drugs
3. Missing a Probation appointment, or just stop Reporting
4. Picking up a new case, or
5. 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...

Continue reading "Probation Violations - Staying out of Jail in Macomb, Wayne and Oakland Counties" »

In part 1 of this article, we began examining the role of the PSI in a Criminal case. We learned that the PSI, or Pre-Sentence Investigation, is a comprehensive process that ultimately results in written Sentencing Recommendation being made to the Judge presiding in any given case. We also learned that the PSI Recommendation could be thought of as a "blueprint" for what the Sentence will be, as almost every Judge out there follows that Recommendation to the letter, or extremely close to it.

Here, in part 2, we'll pick up where we left off, beginning with a look at how the Probation Officer interviewing someone is likely to perceive that person. We'll continue by examining why, in a DUI case, for example, how well or poorly a person scores on the legally required alcohol assessment test impacts what happens to them at Sentencing.

First, bear in mind that everyone showing up for a PSI has been convicted of a crime. Technically speaking, Probation only deals with convicted Criminals. This may seem too harsh or strong a label for someone who has, for example, received their first DUI, and it may not sit well with them, but it does not change the reality that no one is required to meet with a Probation Officer for singing too much in the church choir. A person needs to understand how they are perceived by Probation Officer who will be interviewing them, if they want to positively influence that Probation Officer's conclusions about them.

And make no mistake about it, there is a whole psychological profile to Probation Officers. They are an interesting group, and, whatever else, really are the single most important person in a Criminal case, in that they write the Recommendation that will, in almost every case, be followed by the Judge. Knowing how to deal with them, and understanding things from their side of the desk is an important component in producing a better Sentence.

An example of what not to do in a PSI applies to those first-time Offenders, like the 1st Offense DUI person we mentioned above. Most middle-class DUI Offenders have a hard time thinking of themselves as "Criminals." DUI is, after all, more a crime of bad judgment more than anything else. Almost anyone facing a DUI would never think of robbing or harming someone, or stealing anything. So these individuals, who lack any kind of criminal mindset, are typically horrified at the prospect of being considered, much less treated, as a "Criminal."

Continue reading "How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 2" »

When a person is facing a Criminal charge, they usually have lots of questions. First amongst them, however, is some version of "what's going to happen to me?" In this article we'll take a step back, and instead of trying to answer the question "what's going to happen," we'll examine why whatever does happen, in fact happens. In other words, we'll try to find out why a particular Sentence is handed down in a Criminal case.

Having been a Criminal Lawyer for over 20 years, I certainly have learned a lot. And while I hated to be on the receiving end of these comparisons 15 or so years ago, the reality is that I know a lot more now than I did then. I have learned things that go way beyond knowledge of the Law itself. Often, what is most important in predicting the outcome of any specific case has more to do with where the case is pending, or the identity of the Judge to whom it has been assigned, rather than the rule of Law itself.

This is why, when we speak of Doctors and Lawyers and other professionals who have around 20 years experience, we say they're "hitting their stride." This is also why you'll never see a rich and famous person being represented by a newbie Lawyer. Think of any celebrity Criminal case; the Lawyer who stands in front of the microphones is always a seasoned veteran.

Yet for all that, I began to figure out certain truths about why cases turned out the way they did pretty early on in my career. Here's where anyone who has ever had a prior Criminal case will instinctively understand what I'm about to say, while everyone else will simply have to believe the logic of it:

What happens, meaning the Sentence that a person receives, in any case, is always either identical to, or nearly identical to the Sentencing recommendation sent to the Judge by the Court's Probation Department.

This bears some explanation.

In all Felony cases, and in many Misdemeanor cases (such as DUI), the Law requires that, prior to a person being Sentenced by the Judge, they go to the Court's Probation Department for an evaluation and interview, called a Pre-Sentence Investigation (PSI), and that the Probation Department, as a result of that process, generate a written Report and Sentencing Recommendation to be used by the Judge in Sentencing the person.

Continue reading "How to get a Better Sentence in a Michigan Criminal or DUI Case - Part 1" »

As a DUI Lawyer who has been in practice for over 20 years, I have seen the landscape of the whole Drinking and Driving field change considerably over that time period. Within the body of articles in the Drunk Driving section of this Blog, I have covered many aspects of DUI cases, from the Traffic Stop, to the Field Sobriety Tests, to the actual Breath Test, right up and through how a DUI case is handled in Court, including the Alcohol Assessment Test, how and why that is so important, the steps in the DUI process, through what actually happens to the Driver in Court.

This article will not be as informational as are most of my others. Instead, my aim here is to look at how the DUI world has changed in the last 2 decades. I don't do this because I'm getting long in the tooth, or anything like that. Recently, a number of my DUI Clients have come to me with a prior DUI conviction or two from many years past, and can hardly believe what I'm telling them about how these cases are handled today.

To start with an example, I remember well when many Judges, in Sentencing someone for a DUI, would Order, as a condition of Probation, that the person simply NOT drink and drive. Today, there isn't a single Judge who does not, as a matter of course, Order a person to not drink at all during the term of Probation. In the overwhelming majority of cases, including most 1st Offenses and all 2nd and 3rd Offenses, this is backed up by an order for breath and/or urine testing. Sometimes this testing is done at random, other times it is carried out more regularly.

A number of years ago (okay, at this point I'll admit I've been doing this so long that I don't remember exactly when) a few Courts would order someone with a DUI to complete an "Impact Panel," often called a "Victim's Impact Panel." Now, every single Court, without exception, includes this as part of the punishment for a DUI. If the Pope got a DUI, the Judge might kiss his ring, but he or she would next order His Holiness to complete an Impact Panel.

Similarly, there has been an explosion of "Classes." With names Like Alcohol Highway Safety Class, to Alcohol Awareness Class, to what's called the ARM (which stands for Accepting Responsibility is Mandatory) Class, there seems to be no end to the kinds of Alcohol Education Classes a DUI Driver faces.

Today, just paying Fines and Costs is a relatively rare exception. 15 or 20 years ago, it was far more common.

Continue reading "DUI in Macomb, Oakland and Wayne Counties - How Things Have Changed" »

This article is in response to a number of inquiries I have received asking me to outline what I would do for someone in their particular Criminal case. It's a fair question. If you're about to drop $1000, $2000, or $4000 in Legal Fees on a Lawyer, it's probably a good idea to know what they expect to give you for your money, beyond a polite "thank you."

Unfortunately, the answer to that question, in any particular case, is not so clear cut. Some might find a Lawyer's reluctance to answer such a question with specific information to be a reluctance to "give away the store." In some cases, that may be true. After all, that no one wakes up every day for a week with a stiff knee, then starts calling Doctors and asking them exactly what they'd do to make it better and expects to get a detailed answer. Any Doctor who would take such a call, however, would likely have the same answer any competent Lawyer would have in responding to a question about a person's Legal situation: It depends.

There are really 4 significant parts to any Criminal case, at least once the case is active:

1. The person's story. Their version of what happened, and why, and what they think the Police saw, or learned.

2. The Police story. Their version of what happened, what they were told, and what they learned. This is often well summarized in the Police Report.

3. The Prosecutor's position. While this is largely based on the Police position, different Prosecutors have different personalities, and which one handles any particular case can have a profound effect on how it is resolved.

4. The Court in which the case is being heard. Beyond the fact that the different Counties have different approaches to cases, Judges, like Prosecutors, have different dispositions. Some Judges are especially tough on this or that type of offense, while other Judges might be more lenient toward the same offense, but tougher on another.

Thus, when a person calls and tells me their story, I have precisely ¼ of the information I need to get a clear picture. Going back to the Doctor analogy, after hearing the Patient's complaints, the Doctor probably has figured out that whatever the problem, and ultimate solution may be, it most likely involves the knee. Great. But he or she will want x-rays, blood work, maybe an MRI and an exam, as well, before forming a plan.

Continue reading "The Best Legal Strategy in a Michigan Criminal Case" »

In previous Blog articles, I have written about various aspects of Probation Violations. In some Courts, these are termed "VOP," meaning Violation of Probation. Other Courts schedule them as "Show Cause" Hearings. Whatever the name, the purpose of the Hearing is the same: A reckoning for either doing something prohibited under the Probation Order, or for NOT doing something that was ordered. This article will examine how I do Probation Violations, why I think I'm so good at them, and how much I charge.

In almost every one of my other Blog articles I have steered away from sounding like a salesman, opting instead to describe the various legal processes, and how they work, at least locally. This article will be a departure from that. I write this in response to a number of calls and e-mails inquiring about retaining my services in Probation Violation cases.

I have been asked any number of times if I have ever handled a case like this, or that, or have been in front of some Judge or other. Likewise, I have often been asked what kind of strategy I would employ in handling someone's case. I want to answer all these questions in one fell swoop.

I have observed that Probation Violation Hearings are typically less "legalistic" than other kinds of Criminal Proceedings, because the only issue before the Judge in a Violation Proceeding is to determine, by what's called a "Preponderance of the Evidence" (in other words, that there is more proof that Probation was violated than there's proof it was not; think 50.01% -vs- 49.99%) whether the person either did something that was prohibited by the Order of Probation, or failed to do something that was required by it. Thus, many of the Rules of Evidence, which govern criminal Trials, don't apply, and all that "proof beyond a reasonable doubt" stuff goes out the window. Being a "legal encyclopedia" does not mean even the most knowledgeable Lawyer can effectively handle a Probation Violation.

When it comes to Probation Violations, you should be looking for a Lawyer who's Professional in appearance, and charismatic in disposition. If you really want to get specific, you should be looking for someone whose personality seems magnetic. Forget anyone who comes off as arrogant. Same with Rude. Ditto for cold. And, above all, you should look for someone who's "local."

Continue reading "Finding the Best Lawyer for a Probation Violation in Macomb, Oakland or Wayne County, Michigan" »

Most Lawyers who write anything at all about DUI cases tend to focus on the Evidence and ways to beat the case. However optimistic those sales pitches may be, the plain truth is that the overwhelming majority of DUI charges result in some kind of conviction. In most cases, after the Arrest, and after a person has been Arraigned, their Lawyer will work out some kind of "Plea Deal" that either reduces the severity of the offense or results in a Sentencing agreement or bargain.

This article will focus on what I consider to be, by far, the most important (and least talked-about) aspect of a DUI case. If the case is not dismissed on some technicality, or unless a person has gone to Trial and been found "Not Guilty," some kind of Plea deal will have been worked out by the Lawyer. By law, after a Plea (or conviction, if a person has gone to Trial and lost), but before the Sentencing can be imposed by the Judge, a person must undergo a mandatory alcohol evaluation.

This consists of a written alcohol-use questionnaire, along with an interview by a Probation Officer. This whole process is called the PSI, or Pre-Sentence Investigation. The end product of this process is a PSI Report, or Sentencing Recommendation. Michigan law requires that this Report be provided to the Judge at or before the time of Sentencing to help him or her decide what to do. On the date of Sentencing, both the person being sentenced and their Lawyer are required to read this Report before going in front of the Judge.

It is accurate to say that, almost without exception, whatever is recommended by that Report is exactly what the Judge is going to order. In other words, it is less accurate to call that Report a Recommendation than it is to call it a "blueprint" for what's going to happen.

I know that anyone reading this who has ever been through the DUI process before, (whether for themselves of with someone else) knows this to be true. In fact, I can safely say to anyone who has been through the DUI process before that whatever was recommended in that Report was, likewise, ordered by the Judge.

This means that unless a person is charged with a DUI where the Evidence is weak enough to be dismissed by the Judge, or otherwise has a Defense to the charge strong enough to "beat" it at Trial, they will be undergoing this PSI. And it also means that when the test has been taken and the interview with the Probation Officer completed, the final outcome of their case will have pretty much been determined. The Probation Officer "scores" the person's alcohol test. All of these test are "graded" with a numerical score; generally, the higher a person's score, the more likely they are to have or to develop and alcohol problem. Conversely, the lower a person scores, the less likely it is that they have an alcohol problem, or have the potential to develop one.

Continue reading "Michigan Drunk Driving - What Happens in a DUI Case " »

In previous Blog articles, I have discussed various aspects of Probation Violations, from the simple desire to stay out of Jail, or the imposition of too many conditions, to picking up a new charge while on Probation for another, to dropping a dirty urine. Since Probation Violations are a significant part of my Practice (at least my Criminal Practice), I very recently encountered another scenario that comes up quite frequently. This involves someone who simply quit Reporting to Probation, for one reason or another.

Let's define who we're talking about: a person on Probation who fails to report for some time, and is considered an "absconder" (kind of like a runaway). There are many reasons why this can happen. Sometimes, a person just plain misses, and then becomes afraid. Sometimes, a person has had Police contact, and doesn't want to either report it, or lie about it and not report it. Other times, a person may know they're going to test positive for drugs (or alcohol) and rather than face that music, just decides to bail out and deal with it later. The list could go on forever, but the point is that for some reason or reasons, the person has stopped Reporting to Probation. It doesn't take long, of course, for a Warrant to be issued charging the person with a Probation Violation.

For all of the reasons this can happen, and for all of the stories behind those reasons, there are really only 2 ways people resolve this situation:

1. Voluntarily turning yourself in to take care of things, or

2. Getting picked up by the Police on the Warrant.

Most often (but not always) I am called by people in that first group. They know they have some serious unfinished business to take care of, and they want the burden of this outstanding Warrant and all that goes with it to be lifted from their shoulders.

I think it's important to understand something about those people in the second group, who get picked up on the Warrant and brought before the Judge. Having sat in Courtrooms day after day after day for about 20 years, I know how these things work, and I know how Judges view them. And if there ever was a time to use the term "Bulls**t," it probably could never be more accurately applied to anything like it can to the excuses given by those Probation Absconders when the Judge asks them where they've been.

Continue reading "Probation Violations in Michigan - I Stopped Reporting" »

In other Blog articles about Probation Violations, I have pointed out that the person facing the Violation faces an uphill fight. By and large, a person gets Violated for doing something they shouldn't have (like pick up a new charge or test positive for drugs), or for NOT doing something they were supposed to (like fail to show up for a urine test, or "drop").

This article will focus specifically on those cases where a person has missed a urine test. If this applies to you, hopefully you're reading this before you ever receive notice from the Probation Department of a Violation or Show Cause (another fancy name for Probation Violation).

I say that because there are some things to do to minimize the damage caused by a missed "drop." If a person has waited until they hear from the either the Court or the Probation Department, the ability to take protective action diminishes considerably.

To begin with, it really doesn't matter where the urine test was to be provided. Many Probation Departments have a person go take their tests at a "facility" such as JAMS, Drug Testing Services, Inc., or Michigan Court Services, Inc. JAMS is by far the most popular facility in the Tri-County area. Other Probation Departments will administer their own breath or urine tests, and send the urine out to a laboratory for analysis. Some Courts even order people to report to their local Police Department to have a breath test done on a daily basis, but that's not the subject of this article.

Whatever the scheme, a miss is a miss.

In my practice, I hear all kinds of stories about how a person called their Probation Officer to explain why they missed, or called beforehand to tell them they couldn't make it. Sometimes, a person will tell me that they left a message for their Probation Officer explaining the situation, and because the Probation Officer didn't call back, they assumed that everything was okay. Other times, the person tries to contact the facility to "make up" the missed test, only to be told that there's nothing that can be done, and the Probation Officer has been notified of the miss. While many of these stories are true, we come back to the same point made above: a miss is a miss.

And that point really hits home when that miss is the reason for a Probation Violation.

So what should a person do when they miss a test?

Continue reading "Probation Violations in Michigan - I Missed a Urine Test" »

This article is the companion piece to the last Blog installment about Misdemeanor Cases - From Start to Finish. To begin with, its scope is limited by my experience in the types of Felony cases that I handle (what I call "light-to-medium severity"), as well as the fact that I limit my practice to Macomb, Oakland and Wayne Counties (with the occasional exception of a trip to Lapeer, Livingston or St. Clair Counties). In other words, this article will describe the typical chain of events in a Metro-Detroit area Felony charge for crimes less severe than murder, armed-robbery, and the like.

Just as with Misdemeanors, most, but certainly not all Felony Cases begin with an Arrest. An example of a Felony that often begins without an arrest is the charge of Embezzlement. Usually, these crimes occur in an employer-employee relationship, or something similar, and the Victim goes to the Police. Often during the investigative phase, the Police will call the person suspected of Embezzling, and want to speak with them. Whatever does or doesn't happen, once the case gets to the point of Charging the Defendant (which means obtaining a Warrant, signed by the Prosecutor), the Police will often again contact the person named in the Warrant and try to make arrangements for them to voluntarily turn themselves in.

Whether by Arrest or voluntary turn-in, the person to be charged is "booked" (mug shots and fingerprints) at the Police Station and then brought before a Judge or Magistrate in the District Court of the Municipality where the Offense is alleged to have occurred, to be Arraigned. The Arraignment is the first step in a case, and serves several purposes. It allows the person being charged to be told exactly what they are being charged with, what the maximum possible penalty is that can be imposed (as well as any mandatory minimum penalty) and to be informed of the Constitutional Rights. In addition, there is the setting of Bond, and the imposition of any Bond Condition (like a GPS tether, or a provision requiring the Defendant to have "no contact" with the alleged Victim).

By Law, within 14 days from the date of Arraignment, the next step, called a Preliminary Examination, must be held. This is unique to Felony Cases; there is no Preliminary Exam in Misdemeanor Cases. The Preliminary exam phase requires that the Prosecutor be able to come forward on that date and present enough evidence to the District Court Judge to prove 2 things:

1. That there is "Probable Cause" to believe a Crime has been committed, and
2. That there is "Probable Cause" to believe the Defendant (the person charged) committed it.

In practical terms, the Courts have interpreted this as meaning that the Prosecutor must be able to show the Judge that there is "Probable Cause" to believe a Crime has been committed, and that there is an honest, debatable "question of fact" that the Defendant committed it. This means that unless the Judge is satisfied that the case is so weak that Justice demands it's dismissal, the matter will be "Bound Over," or transferred to the County's Circuit Court.

Continue reading "How a Michigan Felony Case Works" »

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.

Continue reading "Probation in Michigan - Everyone Wants Non-Reporting" »

The issue of Probation Violations has been coming up more frequently in my Practice as a Metro-Detroit Criminal Defense Lawyer. Sometimes the person Violated is unable to attend all the counseling that was ordered as part of the their sentence, or provide all the urine samples required under the terms of the drug testing ordered by the Judge. Often, the person's problem has more to do with not having enough money to keep paying and paying for what seems like endless testing and classes rather than an unwillingness to comply with the Court's Orders.

A test is missed, or a class is skipped, and the person is told that they are being "Violated" and must re-appear before their Judge. Not good news. To make matters worse, the person is in need of a good Lawyer, but if a lack of money is the underlying problem, they realize that calling around to hire a Lawyer without money is like going to the Grocery store, having all your food rung up, and then asking to make payment arrangements. Perhaps reluctantly, some of these people ask for a Court-Appointed Lawyer figuring something is better than nothing. Others will find a way to scratch up enough cash to hire a Lawyer of their own choosing.

Then, on the day of the Probation Violation Hearing, the person is finally asked to admit or deny that they missed a test or test, or a class or classes. Usually, they admit the miss or misses, and seek to have their Lawyer convince the Judge to not just lock them up.

That's done, of course, by trying to explain to the Judge that any miss or misses were truly because of a lack of money, or a real threat of losing their job, and not some disregard of the Court's Probation Order. And it's at this point where the person is walking a very fine line between sympathy and impatience, at least from the Court's point of view. Let's face it, times are tough, and a lot more so here, in Michigan, than anywhere else. People are cash-strapped, and there just isn't enough money to go around. Those lucky enough to have a job need and want to keep it.

When someone is standing in front of a Judge to be Sentenced in a Criminal Case, they are pretty much worried about 1 thing; not going to Jail. No matter what else the Judge Orders, most people feel pretty good when they know they can walk out the front door of the Court, rather than being taken away through the back. Whether testing has been ordered once a month, once a week, or even 3 times per week, human nature leads people to believe they'll figure out a way to do whatever the Judge requires, despite perhaps already knowing that money is a problem.

Then, when the person is back home, settled into a routine, and there's just no money to go to testing or classes, they skip. When they feel they'll lose their job if they keep showing up late, or missing days, because they need to test, they skip. We know the rest of the story from there. So, how does the Court see these Violations?

Continue reading "On Probation in Michigan - Too Many Conditions to Handle " »

I doubt anyone I represent in Court has any intention of ever getting arrested again. As a Criminal Defense Lawyer for nearly 20 years, I can honestly say that I've heard the "it won't happed again" story thousands upon thousands of times. At the end of the day, however, a larger-than-you-might-expect number of Cases that I handle involve someone who is on Probation for one Offense getting arrested and charged with a new Offense.

And of course, they're afraid. In some cases, "freaking out" may be a more applicable term. Let's try to ease some of that apprehension by taking a look at what's really going on when this happens.

For starters, unless the new Offense involves some kind of Peace March, things are not going to be particularly good with the Judge to whom the person is on Probation. Generally speaking, any new criminal activity triggers a Probation Violation. It is beyond the scope of this article to define what does and doesn't constitute a Violation. On both my web site, and in another Blog article, I discuss Probation Violations in considerable detail. For our purposes, we'll assume the person arrested again is going to have to accept some kind of Plea deal on the new Case, thus guaranteeing a Violation on the old Case.

Okay, so when they call they're nervous. Often, however, I find that a person's concern is misplaced. In other words, while many individuals with whom I speak first express concern over what will happen in the new Case, it falls upon me to explain that the real cause for concern is with the old Case.

The plain fact of the matter is that Judges spend all day dealing with people who have prior Records. They're inclined to give a fresh look to someone who's new to them, unless of course the person has such a long prior Record that it begins to define who they are (think habitual offender...).

Continue reading "Michigan - Picking up a new Offense While on Probation for another" »

As part of my Blog-wide effort to publish a "Sort Version" of my various longer articles, this entry will tackle the matter of Probation Violations. In an earlier Blog Post entitled "Probation Violations - Staying out of Jail," we examined, in considerable detail, what happens when someone who is on Probation is charged with a Violation of its terms.

As a Criminal Defense Lawyer, I limit my Practice to Macomb, Oakland and Wayne Counties. Thus, the information related in this Blog comes from my handling cases day-in and day-out in the local, Tri-County Courts.

Almost every Probation Violation comes about because the person on Probation is accused of either not doing something the Judge ordered them to do, or they did something they weren't supposed to, like picking up a new charge or testing positive for drugs.

When the Probation Department "violates" a Probationer, the Court is told what the person either did or did not do which gives rise to the violation. There is an Arraignment, at which the Defendant should plead "Not Guilty," and a Bond is set. The Arraignment is followed by the actual Probation Violation Hearing, which by law must be scheduled within 14 days from the date of the Arraignment.

On the Hearing date, the Defendant and his or her Lawyer appear in Court and go before the Judge. In some Courts, the Defense Lawyer will meet with the Probation Officer before going in the Courtroom, in an attempt to see if some kind of agreement, kind of like a Plea-Bargain, can be worked out. In other Courts, both sides simply stand before the Judge. The Defendant has the right to a full-blown hearing, but the standard rules in Criminal Cases do not apply. Hearsay evidence is allowed. The Probation Department must simply convince the Judge, by what's called a "Preponderance of the Evidence," (simply put, that it's more likely than not, or 50.0001% "Yes" to 49.9999% "No") that the Probationer either did something he or she was not supposed to, or didn't do something they were ordered by the Judge to do.

Most cases don't go this far. Usually, the person being Violated pretty clearly did something they weren't supposed to, or didn't do something they were ordered to do. Thus, most cases are resolved by a Plea of Guilty to the Violation. It's at this point that the Lawyer's ingenuity, persuasiveness and skill come into play.

The Defense Lawyer's job is to convince the Judge to NOT put the client in Jail. This means being able to present viable alternatives (like tether) to simply pounding a non-compliant Defendant with some time in the "Pokey."

The last thing a Judge wants to hear from someone who has already messed up is "I'm sorry" or "It won't happened again." From the Judge's point of view, we've "been there, done that."

Instead, the Judge needs to hear that no matter what did or didn't happen, it was not out of a lack of respect for the Court or a disregard of its orders, but rather because of a regrettable lapse in judgment. A Lawyer handling a Probation Violation better be charismatic, dynamic, know the Court, and be convincing enough to sell air conditioners to Eskimos. To find that Lawyer, a person needs to do some shopping around. Anyone who sounds as subdued as an Undertaker is probably not the person for this kind of job, nor is someone who doesn't know the Judge very well. A Probation Violation Hearing is the last place for a Lawyer to first meet the Judge (who is already impatient with the Defendant) for the first time.

As a Criminal Defense Lawyer who appears in Detroit and Suburban Courts almost every day of the week, I hear and see Judges issue a "Bench Warrant" often. Most people have a general understanding of what a warrant is, but many are not clear on the meaning of the term "Bench Warrant" and how it relates to Warrants in general.

A Bench Warrant is, as you can imagine, a Warrant that is issued "from the Bench," meaning by the Judge sitting at his or her "desk" in Court. A Bench Warrant can only be issued in certain, limited situations. While a Bench Warrant is a kind of "Arrest Warrant," not all Arrest Warrants are Bench Warrants, in the same way that a baseball is a kind of ball, but not all balls are baseballs. The focus of this article is upon Bench Warrants, when they're issued, for whom, and how they're dealt with.

A Bench Warrant is issued when a person who is subject to an order of a particular Court does not comply with it. One of the most common situations in which Bench Warrants are issued is as good a place as any to look for an example.

Assume a person has been arrested for an offense (it can be any offense: Drunk Driving, Possession of Marijuana, Domestic Violence, etc.) and is sent a notice by the Court to appear on a certain day. If that person does not appear on the date required by the notice, when the Judge calls their case and they don't respond, he or she will issue a Bench Warrant. This means that a warrant is put out through the LEIN (Law Enforcement Information Network) and if and when the person comes into contact with a Police Officer, they will be arrested.

Actually, the Bench Warrant itself is an order of Court commanding a Police Officer to arrest someone and bring them before the Court. The Officer cannot ignore an active Warrant. This is one reason why, upon pretty much any contact with the Police, an Officer will want ID from a person so that he or she can run their name and see if they have any outstanding Warrants.

Continue reading "Michigan Arrest Warrants - What is a Bench Warrant?" »

One of the first questions that I ask any caller, as a Criminal Attorney practicing in Macomb, Oakland and Wayne Counties, is "how old are you?" I ask this because there is a provision of Michigan Law, Called the Holmes Youthful Trainee Act, or HYTA, which allows a person who commits a crime after their 17th, but before their 21st birthday, to keep the whole thing off their record.

In an earlier Blog post, we examined how Drug Possession charges can be kept off anyone's record, regardless of age, if they have no prior Drug Record, under something known as a "7411." The HYTA law can produce the same result, but two features make it very different from 7411:

1. HYTA only applies to people charged with a crime which occurred after their 17th birthday, but before their 21st birthday. That age range is inflexible; if someone is charged with a crime that occurred one day before their 17th birthday, or on the very day of their 21st birthday, they are ineligible. Section 7411 does not have any age limitations.

2. HYTA applies to all kinds of Crimes, not just Drug Possession charges, like section 7411. There are certain exceptions: Crimes punishable by imprisonment for life (Capitol Offenses), Major Drug Crimes and all Traffic Offenses.

The reasoning behind this law is the recognition that young people, on occasion, do dumb things. An instance of bad judgment before one has the chance to mature and think like an adult should not necessarily handicap that person for life with a Criminal Record, which can have all kinds of negative consequences for future advancement. HYTA is equally applicable to Felonies and Misdemeanors, with the exceptions mentioned above. HYTA status allows a person to prove to the Court that they can stay out of trouble long enough to warrant dismissing the whole case without ever placing it upon their Public Record.

Continue reading "Michigan Criminal Charges - Avoiding a Conviction with HYTA" »

As a Criminal Defense Attorney in the Metro-Detroit area, I handle a pretty large number of Probation Violations. With jails overcrowded, Courts in Macomb, Oakland and Wayne Counties are more likely than ever to give someone a chance to avoid taking up a jail bed by serving a term of Probation, instead.

I'd venture to say that pretty much everyone who is put on Probation plans on completing their term without any problems along the way. That is to say, I doubt anyone plans to deliberately screw it up.

Even the best plans don't always work out as well as originally thought. Unfortunately, a pretty fair number of people who had been placed on Probation receive notice of a Violation and have to go back to Court and face the Judge who originally gave them this break, and answer for either doing something wrong, or not doing something they were supposed to do.

I'd likewise venture to say that anyone who has to face a Probation Violation Hearing knows "that sinking feeling" in the pit of their stomach when they think about facing that Judge again.

Now I wish I could say that there is some "magic" solution which will make the whole thing all better, but the truth is, there is not. That said, it does not mean things are hopeless, or even bleak. Lots can be done to avoid jail. As we'll see, it's all about "alternatives."

Imagine for a moment that you were the Judge who sentenced you. Whatever else you did or said, there was an understanding between you, the Judge, sitting on the bench and the person standing before you (the Defendant). Whether spoken or not, it comes down to something like this: "Stay out of trouble, and do these things that have been ordered, and I won't put you in jail. If you get in trouble while on Probation to me, or don't do any of the things I've ordered, you'll be back in front of me to be punished further, and that means I might well lock you up."

Continue reading "Probation Violations - Staying out of Jail" »