In the previous two articles, (DUI and Probation in the Metro-Detroit Area and How you get on Probation for a DUI) we have been exploring probation in a Michigan DUI case. In the first article, we outlined that probation is an alternative to jail, and that it really amounts to a series of “do’s and don’ts” that are ordered by the Judge. We saw that in a DUI case, probation will always at least require a person to abstain from consuming any alcohol, and, additionally, that a person must otherwise not get in any further legal trouble, either. We then looked at the steps that lead to a person winding up on probation. Here we reviewed the required alcohol assessment that’s part of the larger overall process that takes place before the Judge sentences a person. That process requires, in the end, that the probation officer administering the alcohol screening assessment provide a written sentencing recommendation to the Judge to be used in deciding a person’s DUI sentence. To come up with that recommendation, the probation officer will meet with and interview the DUI driver, give him or her the alcohol assessment (test), score it, gather whatever other information he or she believes relevant, and then combine all that in the sentencing report. In the final analysis, that sentencing recommendation is really a blueprint for what kinds of things a person can expect as conditions of probation.
This third and final article in our loose series will be an overview of what we mean by “conditions of probation,” and will explore the things a person can expect for probation in a Detroit-area DUI case. Here, I have to qualify things, because I practice what I preach, and by that I mean that I generally concentrate my DUI practice to the Tri-County area of Metro-Detroit, and will include in my circle DUI cases in Lapeer, Livingston and St. Clair Counties, as well. I won’t take a DUI case beyond these areas, however, because I don’t have the opportunity to get to any courts beyond these 6 counties regularly enough to be able to offer any real experience there, and it has always been my standard to be able to tell my client what is likely to happen based upon real-world experience.
Let’s look at how DUI probation plays out in roughly best to worst-case scenarios:
There are still a few courts left (none, by the way, in Oakland County) that will wrap up a 1st offense DUI without probation, and just impose fines and costs. Anyway you look at it, no probation at all beats the hell of any kind probation. There’s not a lot more to say on this point.
If you’re going to get probation, however, then non-reporting probation is as good as it gets. Just like it sounds, non-reporting probation means you don’t have to report. Most probation is reporting probation, meaning that you have to come in (usually once a month) to the probation department and check in with your probation officer. In non-reporting probation, you never have to check in. Here again, Oakland County proves to be the “toughest,” with the fewest number of non-reporting dispositions. The exceptions tend to be allowed in cases where a person lives out of state, or lives far away (this happens with students who will live away, at college). Non-reporting probation usually lasts for a year, although the final decision about that is, of course, up to the Judge.
Beyond simply not having to report, non-reporting probation tends to come with the fewest conditions attached. We’ll begin looking at “conditions” shortly, but it is the sheer lack of them that makes non-reporting probation seem like a “win-win” proposition. Generally speaking, if a Judge can be persuaded to order non-reporting probation, he or she will stick to a minimum of “do’s and don’ts,” usually only requiring the person to stay out of any further trouble, not use alcohol or drugs (“don’ts), and perhaps complete a 1 or 2 session class and/or an impact panel (do’s). An impact panel, sometimes called a “victim impact panel” (VIP) is a 1-session presentation, sponsored put on by MADD, and is required in the vast majority of DUI cases.
As we segue into the world of reporting probation and the various conditions that can be ordered by the Judge, we should first note a few things. First of all, what I’ve set forth above, and what I’m about to sketch out below is fluid, and moves on a continuum. A Judge can give a person non-reporting probation and still order all kinds of conditions, although that’s unusual. By the same token, a Judge can order reporting probation, and order few, if any conditions, although that’s also unusual. Generally speaking, however, non-reporting probation is the most lenient, and has the fewest conditions, while the longer the term of reporting probation a person must complete, the more conditions that will be attached.
Length of probation is all over the map, especially in 1st offense DUI cases. Generally speaking, a year is about average, but Oakland County will, far more than either Macomb or Wayne County, require 18 months in certain cases. This is a theme that comes up again and again: Oakland County is just “tougher,” meaning less lenient, than anywhere else. Every Metro-Detroit lawyer with even a minimum of DUI experience knows this.
In a 2nd offense DUI, the average length of probation is 2 years. Once in a while, especially when things are handled properly, the probationary term is a 2nd offense case can be cut to just 18 months, or even just a year. A 3rd offense DUI will almost never get less than 2 years probation, amongst other things.
With these general observations about the length of probation in mind, we can now turn to the various conditions of probation that can be imposed. To be clear, there are few limits to what a Judge can order as an alternative to jail. For example, a number of years ago, a young man convicted disturbing the peace with his way-too-loud car radio appeared before a Judge for sentencing. The Judge asked the fellow what kind of music he hated the most, and the kid responded, “opera.” The Judge then sentenced him to sit in a room in room at the court building all day and listen to loud opera music. That case, of course, stands out as an exception in terms of the uniqueness of the sentence; in the vast majority of cases, Judges pick from the same menu of probationary conditions in differing combinations.
An impact panel, sometimes called a victim’s impact panel (or VIP, as described above), winds up being ordered in just about every 1st offense DUI case, and, frequently doled out in 2nd offense cases, as well. These are 1-session programs put on by MADD, usually held weekly at certain locations (a church auditorium, a school auditorium, etc.) and last several hours. The point of the session is for those in attendance to understand the impact that a drunk driving fatality has had on the survivors of someone killed by a drunk driver.
Classes of varying lengths are frequently ordered in 1st offense drunk driving cases. Different courts use different resources, so a “class” may be a 1-day program at a counseling facility, a 2 day seminar somewhere, or a weekend (overnight) session at a location like a hotel, or a camp. Almost all of the time, however, “classes,” at least in a Detroit area DUI case, means a 1 or 2 session program at a local counseling office.
Counseling is different from “classes.” Classes merely require a person to sit and listen, whereas counseling requires the person to participate. Some counseling is done is groups, while other counseling is done one-to-one. Counseling programs can last from 4 to 6 sessions, 6 to 8, or even for an indefinite period of time. Counseling is generally reserved for more serious cases like a 2nd or 3rd offense, where it is required by law, anyway, but it can also be ordered in a 1st offense case, particularly when a person’s BAC score is rather high. In many cases, the Judge simply requires a person to “complete” counseling, leaving the determination of when a person is “good enough” to be able to stop attending sessions up to the counselor.
Testing means testing for alcohol, and, in some cases, drugs, as well. Testing is generally done on a person’s breath or urine, but can be accomplished in a variety of ways. If a person is put on breath testing, he or she will have to provide a breath sample at random intervals. Until recently, this was most frequently done at a testing facility; new technology is replacing that burdensome method with a portable, handheld device that samples a person’s breath while taking his or her picture to make sure the right person is providing the sample, and then instantly sending the results over a cellular connection to the monitoring station. This is often called a “soberlink.”
Urine testing is usually done at a facility, but the sample can be analyzed in several different ways. The usual (and cheapest) urine test is a simple “dipstick” test; a formal lab (and more expensive) analysis can be done, or, an even more thorough (and even more expensive) lab test, called an EtG (Ethyl Glucuronide) test, can be used. The EtG test can detect alcohol backwards for at least several days.
Another kind of testing that is sometimes used is called a “SCRAM” tether, which is an ankle monitor that tests the moisture emitted from a person’s skin and will alert the monitoring station to the presence of any alcohol. This method is being used less now, in favor of cellular reported breath testing. SCRAM units are clunky, difficult and more expensive than the “soberlink.”
Obviously, there is no breath testing for drugs, and, most of the time, a simple dipstick urine test will suffice if a person is being tested for substances other than alcohol.
Those are the big 3 in terms of conditions of probation – classes (education), counseling and testing. There are, however, a few other things that can find their way into a probation order, however…
Community service is something about which pretty much everyone has at least a general idea. It is hardly ever handed out in a Macomb County DUI case (except, most notably, for a DUI in the Romeo court), occasionally handed out in Wayne County, and rather regularly handed out in Oakland County (are you sensing a theme about Oakland County yet?). In some Oakland County courts, instead of community service at someplace like an animal shelter, a person will be required to complete what are called “WWAM weekends,” which is a type of community service program run through what’s called “Community Corrections.”
Tether, properly called “electronic monitoring” and sometimes called “house arrest” is another kind of ankle monitor. This kind of probation allows a person to go to work, school, treatment and support groups, but otherwise makes sure he or she remains in the home at all other times. It is usually reserved for more serious cases such as 2nd and 3rd offense DUI’s, and is seldom considered, much less used, in 1st offense cases.
Last but not least, there is the payment of fines and costs. In some courts, everything must be paid in full on the day of sentencing. This hurts the person having to cough up the money, but it avoids collection issues for the court. In other cases, payments are allowed. If the reader could see, in the big picture, how many people don’t pay as required, he or she might understand why so many courts don’t allow a payment plan. Still, for those courts that do, the threat of jail for not paying off one’s balance usually works. Thus, paying the money you owe, if you’re allowed to make installment payments, is a condition of probation.
There is really not much more beyond this to examine. We’ve seen the major players (classes, counseling and testing), the supporting cast (community service and “tether”), and our examination of them essentially caps this series about probation in DUI cases. Of course, it goes without saying that my job, as a DUI lawyer, is to help my client avoid as much of this stuff as humanly possible, but it certainly helps to know specifically what we’re talking about avoiding in the first place.