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?
Not surprisingly, the Court also has the same inherently optimistic expectations at the time of Sentencing as do those that stand before it. Think about it from the Judge’s point of view; a person had enough money and resources to do whatever got them in trouble (DUI, Possession of Marijuana, etc.), so if it’s the difference between Jail or not, it’s not unreasonable to expect someone to find a way to do whatever is necessary to stay out. In other words, the Judge can rather correctly figure that complying with any Probation requirements is the Defendant’s problem.
In the end, there’s no simple formula that can be applied to figure out what will happen in the case of a Probation Violation for failing to provide a urine test or attend a class or classes. Instead, a person must look at a number of factors that combine to affect the outcome of this kind of Proceeding. Some Judges are more patient than others; if yours isn’t one of those, well, that’s not good. Some Defendant’s have established a track record of complying with the Court’s Orders before they experienced a set-back; those individuals can better argue that they really put forth an effort until it just became impossible.
Let’s look at 2 very different examples:
Say Sam is on Probation for Possession of Marijuana. He has been ordered by Judge “Impatient” to urine test 3 times per week. Within a month or two of being placed on Probation, Sam has already been Violated for missing a urine test.
Now compare and contrast Sam’s case with Lisa’s. Lisa was placed on Probation about 6 months ago by Judge “Kindheart” for a DUI, and, like Sam, has been ordered to provide urine tests 3 times per week. Lisa was recently laid off from her job, and is facing a foreclosure on her house. Until now, she has never missed a single urine test, and has always been clean. Even though she has done well, when she failed to show up at the lab for her most recent urine test, a letter was automatically sent to her Probation Officer, who informs her that he has to Violate her for missing the test.
It doesn’t take a Brain Surgeon to figure out that these 2 cases will probably turn out differently. In Sam’s case, Judge “Impatient” may likely say to Sam “You found the money to go out a buy a bag of dope, so it’s not my problem that you didn’t find it to get a urine test. I gave you a few simple rules to stay out of Jail, and right out of the gate, you’re having problems.”
Judge “Kindheart” might tell Lisa something to the effect that “Because you have always tested clean, and because I believe your layoff really caused you to miss this test, I’ll give you the benefit of the doubt and continue your Probation. Understand, though, that anymore missed tests and you’ll be looking at Jail.”
Most people, however, will be neither Sam nor Lisa, instead falling somewhere in the middle of those rather opposite examples. They’ll need to convince the Judge that they are ready, willing and able to comply with the Court’s orders. Sometimes, as the Lawyer representing someone in this position, I will delicately ask the Court to loosen up some of the requirements, or to accept an alternative that the Client can afford in order to complete Probation. In cases where frequent testing has been ordered, and the Client can afford to go, but jeopardizes his or her job by having to miss so much work, I usually seek to have the Judge allow them to test elsewhere, at a place whose hours won’t cost the Client his or her job.
The bottom line, of course, is that complying with Probation IS the Defendant’s problem. But in those cases where there has been some non-compliance, the Defendant better have their Lawyer convince the Judge that it’s not a big problem, nor an incurable one, and that a “re-start” or a break ought to be given. Kind of like a second chance for your second chance.