The previous article focused on positive alcohol test results, particularly within the context of bond and probation violations. The focus there was more on the results (and drinking) rather than the violation. In this installment, I want to focus more specifically on handling bond and probation violation cases. While most bond violations occur because a person tests positive after drinking, our examination here will be broader, and applies to anything that is a violation, rather than just positive alcohol (and even drug) tests. If you’re facing a violation, the only person who can really help you is a lawyer, but most of the time, legal acumen, by itself, is far from enough, and the best way to resolve these matters requires a skillful blending of charisma, experience and speaking ability. In other words, you need a lawyer who can charm the snake right back into the basket.
We could get detoured forever just trying to list the many reasons someone is called in for a violation. Of course, it’s mostly for either missing a test or testing positive for alcohol and/or drugs, but the larger point is that whatever the reason, it’s a violation for either doing something you shouldn’t have, or not doing something you were supposed to do. We begin with the certain knowledge that your Judge, whoever he or she may be, is not pleased with you. You’re in trouble – again – and you have pretty much forfeit most, if not all, of the Judge’s patience and understanding. I don’t say this to scare the reader (I hate any kind of fear-based marketing), but rather because you almost certainly already know this; you feel it, and for all the good that can be done, it’s bone-headed to not at least recognize the position from where you start.
Another detour I want to avoid in this article is a potentially endless examination of all the reasons why a person may be innocent of a violation. For the most part, except for things like a dilute urine sample or a false-positive result, the overwhelming majority of people look for a lawyer in this situation because they did, in fact, violate some term of their bond or probation. Even missing a test for a good reason is still a violation. Thus, we’ll mostly be examining those situations where you have to go back in front of the Judge, to put it bluntly, because you screwed up. This is why I hinted, in the first paragraph, that all the legal skill in the world isn’t much help when you’re back before the Judge for either doing something you were ordered not to do, or for not having done what was required of you.
Human nature being what it is, there is a strong, natural instinct to want to say things like, “I’m sorry; it won’t happen again,” or “I had to work late,” or “give me one more chance.” It’s not as easy as that. Remember, being out on bond or on probation is an alternative to being in jail. The Judge has imposed certain requirements that are conditions of you NOT being incarcerated, and for whatever reason, you haven’t fulfilled one or more of them. When you take a step back and think about it, what is more important than staying out of jail? What should be your first priority during the time you’re on bond or probation? Clearly, it should be doing what you must in order to remain in compliance. This means, then, that the “I’m sorry” stuff is, as the saying goes, “a day late and a dollar short.”
So what’s the best way to handle a bond or probation violation? That depends on a number of factors, including the details of the violation itself. More important than any of those variables, however, at least in most cases, is the Judge him or herself. It’s as simple as this: there are some Judges with more patience than others. No lawyer is going to publicly discuss names, but in private, you can be sure that every lawyer has preferences. Even the Judges themselves, without exception, had their preferences back when they practiced law. No matter what the facts of your violation, if your case is pending before a Judge who favors toughness more than forbearance, the approach your lawyer takes will certainly be different than if the situation was reversed. In other words, your lawyer must first account for who your Judge is, often before anything else.
This is why I limit my DUI and criminal practice to the Metro-Detroit area, meaning Oakland, Macomb and Wayne Counties. I basically travel around in the same circles, going to the same district and circuit courts and appearing before the same Judges, day-in and day-out. Let me be perfectly candid about this: when your a$$ is on the line, it’s no time to hire some lawyer who doesn’t regularly get to the court where your case is pending. Knowing what won’t fly in any particular Judge’s courtroom is an important part of knowing what to do.
Beyond the Judge, we have to examine the facts of your violation. Obviously, whatever it is that you did (or did not) do matters, but what I’m really driving at is the context of your violation. Some of my clients have already violated before, and sometimes, even more than once. A third bond or probation violation is different than any first violation simply because it’s a third trip back for screwing up again. The focus of such a violation almost always changes to outright damage control by way of keeping the client out of jail. Subtlety goes out the window.
Context is important in other ways, too. No matter how you cut it, if you’re on probation for possession of marijuana, for example, and you test positive for alcohol, it is, in a certain sense, “better” than testing positive for marijuana. By contrast, if you’re on probation for a DUI and you test positive for marijuana, it looks like you substituting substances. These are generalizations, of course, but it is important that, as the lawyer, I know how to handle these issues and ultimately present these things to the Judge in a way that protects the client.
When you go back in front of the Judge, the overarching reality is that you were given a break, and you blew it. To a certain extent, this is an affront to the Judge’s authority. When a person tests positive for drugs or alcohol, it can seem to the Judge like either they’re getting the middle finger or the person has such a substance abuse problem that he or she can’t control themselves. You don’t want to be perceived in either way. Thus, it is not only important, it is KEY to make the Judge understand that you’re doing neither. This requires knowing how to convince the Judge, and that takes more than just saying as much. Exactly how to do that is a function of all the variables we’ve been discussing, and any others that are relevant, as well. And that’s not a bunch of BS, either. For all the legal knowledge and experience a lawyer may have, “knowing” what to do is mostly a matter of instinct, in the same way that “knowing” how to gently and safely land a jet plane in very high winds is a matter of feel for an experienced pilot, and “knowing” what note goes after another is a matter of instinct to a songwriter. These kinds of skills are not common.
What I’m trying to say is that there is a certain amount of artistry here. There are lots of musicians, but only a small group of them are really songwriters. Lots of people play baseball, but only a select few make it to the major leagues. Similarly, there are loads of lawyers, and plenty enough who go to court regularly, but if you’ve failed some condition of bond or probation, you need to look to that elite class who can articulate and persuade better than all the rest. You need the kind of lawyer who can, as my late mom used to say, “talk the spots off of a leopard.” The last thing you need is someone who doesn’t have the superior ability to convince the Judge to not lock you up. From there, you’re lawyer has to shield you from being clobbered with endless other consequences, as well.
When you’re standing in front of the Judge trying to explain why you shouldn’t go to jail for screwing up the break you got instead of going to jail in the first place, the Judge is not thinking about how he or she can articulate things to you more convincingly this time around so that you get it. In his or her mind, this is “been there, done that” situation. When you’re a hammer, everything looks like a nail, and when the Judge has already tried once and you’re there ready to make excuses because you failed, the easiest tool to grab is that hammer. Now this all sounds great and makes sense, but it goes a bit deeper. No matter how convincing the lawyer may be, it begs the question, what are you convincing the Judge to do? Stay out of jail, sure, but it’s NOT going to end there. You usually don’t get a free pass. If you’re testing 3 times per week and you test positive for alcohol, you can count on your testing schedule being increased, amongst other things. Thus, the lawyer’s job also requires offering the Judge alternatives. This includes a lot more than just throwing out every option short of the kitchen sink, it means suggesting options that YOUR Judge will consider.
Again, we circle back to the importance of knowing YOUR Judge. Plenty of Judges have their “pet” ideas, and won’t budge from them. One local Judge here, in the Detroit area, requires every 1st DUI offender to complete a 4-day, overnight alcohol education program. This is a given in her court, and even if the client lives out of state and/or has a brutal work schedule, this is a non-negotiable requirement. Any lawyer who doesn’t know this will soon find out, because there’s no way around this. If some lawyer based his or her strategy on convincing that Judge to do something different, whatever fees the client paid would wind up becoming tuition for that lawyer to learn such a plan doesn’t fly in her courtroom. Ever.
Whatever alternatives are presented, and however that’s done, a lawyer should also be careful to not “over-pathologize” the situation. This is always a risk in positive alcohol and drug situations, where the instinct to demonstrate that the person’s actions do not represent a lack of respect for the Judge’s authority can lead to a kind of overcompensation whereby the person is perceived as needing “help” for his or her substance use. In short, the lawyer has to very carefully navigate this situation and thread the needle, so to speak. In my practice, I call upon my post-graduate clinical training in addiction studies to protect my clients from being perceived as having a problem they don’t, or, when the client is struggling with his or her relationship to substances, to make sure he or she doesn’t get crammed into all kind of expensive treatment mashed through the “wrong” kind of counseling, all of which he or she is going to have to attend and pay for.
I could go on. I trust the reader can see that I’m not short on words, but I also trust my own instinct to know that I’ve covered the major points enough so that anything more will become tedious. And that’s a skill that is important in the courtroom, as well. You cannot talk your way out of this by talking it to death.
If you’re facing a bond or a probation violation, be a really good consumer and read. Read how other lawyers explain themselves. You can certainly get a sense of the lawyer’s “voice” and personality if he or she has written enough, and, if they haven’t, well, that tells you something, as well. When you’re ready to make serious inquiries to hire a lawyer, start asking questions. If your violation is in any local, Detroit-area court, you can reach my office my office Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 1-855-DUI-MICH (855-384-6424). All of my initial case screenings are confidential and done over the phone, right when you call. We’re here to help.