Probation Violation for Positive Test Result – The Science of Persuasion versus the Science of Testing

After nearly 22 years of Practicing Criminal Law, handling DUI cases, and helping people whose Licenses have been Revoked for multiple DUI cases get their Driver’s Licenses Restored, I have seen pretty much everything once or twice, and a few things countless times.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.

PeeTest1.2.jpgProbation 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?

The easy answer would be for me to simply say, “me.” And while I think that’s true in many cases, there are certain “connections” that need to be made before I will take a case, beyond simply being offered money, and before anyone looking for the right Lawyer should offer any money.

Let’s start with the money. That’s important. I charge $1200 for a District Court (Misdemeanor) Probation Violation, and $1600 for a Circuit Court (Felony) Probation Violation. That’s not chump change. I do, in fact, charge more than many other Lawyers. To be blunt about it, I charge it because I can get it, and I get it because I’m worth it. We’ll get into that more, later. The key thing is that when looking for a Lawyer for a Probation Violation (or any kind of case, really), a person needs to find the best, most charismatic and persuasive speaker around. Anyone who thinks that their best asset or qualification is being the “cheapest,” or otherwise being “affordable,” is not selling anything worth buying. If you’re planning a wedding, and you’re looking for a band, wouldn’t you want to hear how it sounds, first? Sure, the better band may cost more money, but why would anyone hire the cheapest band just because they’re the cheapest. What if the singer isn’t so good? What if they just “sucked?” Some bargain that would be…

The same holds true for a Lawyer, especially in a Probation Violation situation. In this predicament, you need someone charismatic and persuasive enough to sell ice to penguins. The right Lawyer for a Probation Violation is someone with the “gift of gab,” not someone whose best selling point is that they come “affordable.” Finding the best Lawyer to Represent you and try and spare you from getting locked up is NOT something to be done on a “low bidder” basis.

Beyond money, you have to like the person you’re going to hire, and they have to like you, too. Here’s a little secret from my side: I will always go the extra mile for someone who is decent and nice and a pleasure to deal with. People who are rude, or short, or curt, or discourteous or otherwise unpleasant just don’t get the same attention. Usually, they don’t end of becoming my Client in the first place. I believe this is the same when I am on the other side of the table, as well, when I am the Client or the Patient. If you call a Lawyer who seems like a jerk, what do you think is going to change once you hand over your money to him or her? By the same token, if the potential Client with whom I first converse is a jerk, well, I’d just rather not take on their case in the first place. That “connection” has to be mutual.

The right Lawyer for a Probation Violation is very often not the same Lawyer who can get someone off on a murder charge, or some other serious, capital Offense. A medical analogy will do very well here: A Surgeon who has to cut someone open and perform life-saving trauma surgery has to focus on more important things than how the scars on the person’s body will look when they heal. Making those scars as small and undetectable as possible, or covering them up is the job of a Cosmetic, or “Plastic” Surgeon. One Surgeon is all about saving a person’s life, the other is all about finesse and appearances.

In the world of Lawyers, it is essentially the same. The best Lawyer to handle a Murder or major Drug Delivery charge is often someone with a boisterous, if not brash personality. Those Lawyers are frequently confrontational and hostile to Police procedure, and rather vocally critical of anyone who disagrees with them. These Lawyers are kind of like Trauma Surgeons.

Probation Violations are handled very differently. In a Probation Violation situation, unless the Lawyer shows up in Court able to prove that that the positive test is wrong, he or she must practice the fine art of diplomacy. Let’s face facts; in a positive test Probation Violation situation, a person has been caught doing exactly what they were Ordered not to do by the Judge. Unless there is a legal or technical way to beat the Violation, an argumentative or boisterous or brash Lawyer is the last thing anyone needs. The Judge is going to be mad; making him or her madder only makes things worse. This scenario calls for a diplomat of the highest caliber. This kind of Lawyer is like a Cosmetic, or Plastic Surgeon.

It must also be remembered that a Criminal charge must be proven “beyond a reasonable doubt,” while a Probation Violation must only be proven by a “preponderance of the evidence.” This means that the Judge must simply conclude that it is more likely than not, by just the smallest degree, that a person did, in fact, violate a condition or term of their Probation. In the context of a positive test, that means that all the Probation Officer has to prove is that it is more likely than not that the person did test positive for alcohol or drugs. To make matters easier for the Probation Officer, in a Probation Violation proceeding, the “Rules of Evidence” do not apply. These proceedings are rather informal. Likewise, in a Probation Violation proceeding there is no rule against hearsay evidence. What is not admissible in a Criminal case is perfectly admissible in a Probation Violation Hearing.

Thus, “proving” a Probation Violation doesn’t take much. And when you’re talking about a positive breath or urine test for alcohol or drugs, unless you’ve got a real whiz-bang scientific demonstration ready to show how or why the test is wrong, the Judge is not going to real receptive to nothing more than a dumb look and an “I don’t know” in response to his or her question about how this happened.

This is why the right Lawyer for a Probation Violation has to be special. They have to have a “voice.” Switch places, for a moment, with the Judge. Pretend you’re the Judge in a DUI or Marijuana or other case, and you gave someone a break and put them on Probation. As the Judge, you told the person that you weren’t going to lock them up, but that they had to do certain things, and not do others, principal amongst them being NOT consuming any alcohol or using any drugs without a valid prescription. You told the person to stay out of trouble, and to not get Arrested again. Pretty standard stuff, really, and nothing that should be a problem for anyone grateful for not getting locked up.

Or so you’d think.

Next thing you know, they’re standing in front of you again, a few weeks or months later, and your Probation Department has sent you a report that they’ve tested positive for alcohol, or drugs. At this point, it really doesn’t matter which it was, because either way, they’ve more or less flipped you the bird in terms of gratitude and respect for the break you gave them.

So what can the person standing in front of you say to make things better? If they say they don’t know how the test came up positive, what do you reply? That the tests are cheap, anyway, and that you don’t trust the lab, either, so it’s okay, just go home and forget about it? Any real-life Judge will rather plainly just tell a person that the reason they tested positive is because alcohol or drugs were detected, and that the number of real, bona-fide false-positives is so ridiculously low that what it really means is that they tested positive because the drank, or used, end of story.

Most likely, as the Judge, you’ll already be feeling your patience tested and will tell the person that the Probation Officer simply has to show that it’s more likely than not that the person drank, or used some prohibited substance (frequently marijuana, while sometimes cocaine or opioids), and that the positive test is good enough for you, unless of course, the person has that whiz-bang scientific demonstration that shows how the test got it wrong. Good luck with that…

This is where having that “special” Lawyer really matters. If it’s me, I tell my Client to let me do most, if not all, of the talking. I have to assess everything: The Offense charged, the person’s prior Record, if any, the substances detected, how long they’ve been on Probation, what they’re doing with their life (working, going to school, unemployed), what the circumstances of the detected use was, and about 10 million other little intangibles that go into figuring out what kind of strategy to employ.

Then, I have to figure out what to say to the Judge. You can add another 10 million intangibles to that. Who is the Judge? In what County is the Court? This is a HUGE factor.

A large part of that comes to me as a matter of instinct. For a Lawyer like me, this is exactly what I do; this is my specialty. In the drama of life, this is my stage.

In the end, once the “performance” is over, the Judge has to decide what to do with the person. The easiest thing is for the Judge to just say, “Look, I gave you a break and this is how you thank me. I didn’t stick you in Jail because I thought you could stay out of trouble, but here we are…” Jail is the easiest easy option. My job is to convince the Judge that it is the WRONG option, and to be able to provide other, better and less severe options.

A big part of being charismatic and persuasive means doing more than just droning on and on and telling the Judge not to put the Client in Jail. Anyone can do that. As the advocate for my Client, I have to convince the Judge that another option is a BETTER option. That is a bit harder than it sounds because, everything else aside, the Judge is left with the bottom line realization that they gave a person a break and told them to simply NOT consume alcohol or prohibited substances. Instead of just doing what they were told, and appreciating the break they got, the person has defied the Judge, done the exact opposite, and the now proof is showing up on a test.

Keeping the Client out of Jail in this situation is a lot like painting a beautiful picture, or writing a wonderful poem; it takes an artist’s touch.

If you’re facing a Probation Violation, you need top-notch legal Representation. You should, and must, really, check out your options. As you consider any particular Lawyer, read what he or she has written; read what I have written. That all-important “voice” should be pretty clear and strong in their writings. Call around, take notes, and compare. Then, take your time and choose wisely.