As a Michigan criminal defense and DUI lawyer, I get called upon to handle a lot of probation violation cases. In fact, it’s quite likely that if you’re reading this, you or someone you care about is facing one. In this article, I want to take a real-world look at the 2 most common reasons people wind up getting violated: A positive urine or breath test result or a missed test for alcohol and/or drugs. Sure, there are plenty of other ways that people violate an order of probation, and much of what we’ll look at here applies equally in those situations, but most of the calls I get follow a positive result or a missed test. I want this installment to be candid and conversational, as if you were sitting in my office and we were speaking across my conference room table. I’m sure that you’ve already come across plenty of lawyers with catchphrases about your freedom, your future, and/or control over your life, or who focus on how tough and aggressive they are. By now, you’ve probably grown weary of all that, so we’ll change focus and use this article to examine how probation violations play out in real life, and how I handle them. This article will be divided into 3 installments, and will really explore the goings-on in a probation violation case.
We’ll start by looking at the hard truth that a lot of people (including lawyers) want to dance around, rather than face head-on: When you’re caught giving a positive test result, the first impression is either that you’re giving the finger to the Judge or you have a real problem with alcohol and/or drugs. Probation is a break; an opportunity to stay out of jail by, amongst other things, showing up for all required tests and then passing them. Of course the job of your lawyer in a probation violation case is to get the Judge to see what happened as being neither a disregard of his or her order nor as proof that you have some irresistible compulsion to drink or get high, and for everything else that can be said, this is the real crux of the matter. It should be pointed out that although most Detroit-area courts use the term “probation violation,” some others call it a “VOP,” meaning violation of probation, or a “show cause,” which is a hearing that requires you to go before the judge and show cause (a good reason) why you shouldn’t be held in violation. Whatever it’s called, it’s all the same thing.
We should also note, at the outset, that good reasons do exist for having missed a test, and that false-positive results do happen. Sometimes, the simple truth is that a person misses a test because he or she forgot, or got real busy, or had to go to work, but was not to avoid a positive result. In a perfect world, when that happens, a person will be timely notified of a positive result and have an opportunity to retest. In the real world, however, it often works out that by the time a person learns he or she has failed a test, it’s too late to do anything about it. Sometimes, a test result is wrong, but when a positive result is correct, meaning you did, if fact drink (or use drugs), you need the kind of lawyer who is a persuader, and who can explain things clearly. In other words, if the positive test result is correct, it couldn’t matter less if your lawyer has a Nobel Prize in chemistry; that’s not going to make things better in front of the Judge. Instead, you need to convince the Judge to not put you in jail or otherwise hammer you. At the end of the day, while some cases do involve false-positive results, most arise because you simply got caught, and here, you need to go into full damage-control mode. Let’s examine, in turn, positive test results (when you did drink or use), false-positive results, missed tests, and what has to be shown for you to be found guilty of a probation violation and how that all goes down in court.
Anyone can figure out that getting caught drinking or using while on probation doesn’t look good. In fact, it’s darn close to as bad as it can look. When the Judge takes in that you’ve positive and then asks for your side of the story, there is no “groundbreaking” case to cite that’s just going to make your violation go away, and all the technical, legal mumbo-jumbo in the world isn’t going to help you, either. Instead, what you have to do when you’re standing in front of the Judge pretty much boils down to saving your skin. To do that, you must somehow persuade the Judge that you do respect his or her orders and that you did not drink or use drugs because you don’t care. By the same token, you have to successfully explain that you didn’t drink or use drugs because you gave into some irresistible compulsion to do so, either (unless that is the case; if so, that can actually help in many situations). Key here, though, is to “successfully” explain things, and not just babble on and on.
I certainly understand why people sometimes go ahead and have a drink, even when they’ve been told to not do so. Recently, I was speaking with a client who had been out to dinner with some friends at a nice place and since everyone was enjoying some wine, he decided to indulge, as well. He said he just felt like he’d be the “odd man out” by not doing so; he didn’t want to tell anyone he was on probation for a DUI, and he felt that indulging in a single glass of wine was a far cry from going out and getting drunk (or worse yet, getting drunk and then driving). He just didn’t think it was that big a deal. As luck would have it, however, he had to test the next day (he was due for an EtG urine test), so his drinking showed up. It suddenly became a big deal. My client is an educated, professional man in middle age. He has never been in any kind of trouble before his DUI; he has a good job, has raised a family and played by the rules his whole life. One instance of poor judgment, and now he realizes that he’s screwed up again; it looks bad. All the Judge sees, though, is that he got arrested for a DUI, was put on probation and ordered not to drink, and here he is again because he disobeyed that order and drank anyway My client certainly didn’t intend to disregard, or “thumb his nose” at the Judge, nor was he having overwhelming cravings for a drink. He just did what was otherwise legal and normal and a problem for everyone else, except that everyone else is not on probation for a DUI.
As much as I can sympathize with and understand why a person may have indulged, and even if we both agree that it is unfair in your particular case, none of that helps you get out of a probation violation. All the sympathy and understanding from everyone you know, including your lawyer, won’t make things better in court. It helps, of course, for me, as the lawyer, to know my client is not wallowing in the throes of addiction, or doesn’t have a serious attitude problem that would prevent him or her from following directions, but beyond that, and in order to “persuade” the Judge, we must first try and understand things from the Judge’s perspective.
And here’s what the Judge knows: You’ve pled guilty to a DUI (or some other) charge. Jail was never really on the menu the first time around, so the Judge gave you probation and the chance to stay out. Probation, when you break it down, is really simple: Do certain things (like take a class and show up for testing) and don’t do certain other things (like drink, smoke weed or get arrested again). Forget, for a moment, all the philosophical discussion about why things are the way they are, as you most certainly did when the Judge told you what you could and couldn’t do. I’ve heard a lot of “This is bull$hit” from people after they’ve been sentenced, but I’ve never met anyone ballsy enough to say that directly to the Judge when he or she is speaking. The point is, you were told (ordered, actually) to test and not to drink or smoke pot. Beyond any substance abuse concerns and issues, think of not being able to drink as part of your punishment. For example, when little Timmy gets punished in grade school for misbehaving, he may be told he has to miss outdoors recess and stay inside. In that sense, his inability to play kickball on the playground is part of his punishment. Ditto for someone who is ordered not to drink while on probation of a DUI. Yean, a glass of wine with dinner is “normal,” and maybe you are a million miles from having any kind of drinking problem. Sure, it sucks that, as an adult, you have to go through this, but that’s part of your punishment. It beats the hell out of jail. And it’s not like you have to accept it, either; you can refuse to follow the Judge’s orders – it’s just that you can’t refuse and stay out of jail. Following the Judge’s orders is the price you have to pay for not getting locked up. When we look at it this way, it is rather simple, after all.
Now, imagine the Judge takes the bench and you’re in front of him or her for testing positive. Unless you’ve got some scientific proof that your test result is wrong (we’ll get to that later), the inescapable conclusion is that you did, in fact, drink or smoke weed or use something. It’s okay to get mad at yourself for having messing up (again), but any anger directed out at the Judge or the system is rather misplaced, and, just like all that sympathy and understanding I mentioned earlier, it won’t help your current situation, anyway. Within the week before I wrote this article, I had been on the phone in my office with someone about a positive result and a probation violation and was explaining everything to the person. It was obvious to anyone overhearing me that that the person was frustrated and grasping at straws, pointing out how having a drink with dinner wasn’t a crime and that it was unfair that he was being punished so much for a simple DUI and so on. When I hung the phone up, Ashlee, my paralegal, said something I had her write down because I though it described the situation perfectly. She said, “That’s like starting a fire in your house and being upset the house burned down!” And as we’ve heard countless times, if you play with fire and all…
So let’s go back to the courtroom: You’re standing there, in front of the Judge that told you not to drink or smoke weed, after getting caught doing for just that. You don’t need a Harvard law degree to understand the Judge is not happy. In fact, you probably got the break you did precisely because the Judge saw your charge (the one you got put on probation for) as out of character for you. You were presented as an otherwise law-abiding citizen who made a mistake, and the Judge believed it. Now, as far as that Judge is concerned, you’ve just about proven him or her wrong. And before you ever get to say a word, the Judge wonders, “Why did this person drink (or use drugs)? Was there some incredible, irresistible urge to do so? Does he or she lack coping skills and turn to alcohol (or drugs) to relieve stress, or to escape, or something like that? Or, does this person just not take me seriously, or not realize the break he or she got?
And that’s it, folks. The Judge is almost certainly not thinking or wondering anything beyond this.
Yet for all the complaining you may have done about your sentence outside of the courtroom, you won’t dare say any of that to the Judge; you didn’t then, and you won’t now. Nobody ever does, because that’s (obviously) the fast track way to get locked up. In fact, it is precisely at this juncture that most people begin to see the entirety of their situation, meaning that they begin to really “see” and understand the Judge’s side, as well. Call it the big picture. Then, what follows is a stark realization the decision to take the chance and drink wasn’t well thought out at all. It becomes painfully clear that it doesn’t look good. So how do we diffuse it and make it better?
We’ll break here and come back in part 2 to answer that question.