Michigan Criminal Defense Lawyer Blog

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" »

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" »

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 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" »