Michigan Criminal Defense Lawyer Blog
In part 1 of this article, we began a very candid discussion about properly handling a probation violation. I noted that, for the most part, probation violations occur because someone screws up, and tests positive for alcohol and/or drugs, completely misses a test altogether, fails do do something they were required to do, or otherwise winds up picking up a new case. When this happens, the defense lawyer has to find a way to get the Judge to give the client yet another break, with job number one being to keep the client out of jail.
We noted the worst approach to a PV is to try and fool the Judge with some BS excuse or story. Every Judge in every courtroom has heard it all before, and probably more times than they could count. I even pointed out that there is one excuse used to try and explain away a positive alcohol test that is so stupid, unbelieved and worn out that it has its own name: “The NyQuil Defense.” Probation violations need to be explained, and worked around; that won’t happen by spewing a bunch of BS that just pisses the Judge off even more.
As we continue here, in part 2, it’s important to understand that the legal standard of proof in a probation violation is very different than in the underlying criminal charge: To be convicted of a crime, the evidence must show guilt “beyond a reasonable doubt.” Most people who are on probation skipped over all of that by pleading guilty to some charge or other, but that doesn’t change the legal standard that would have been required had they gone to trial.
The proof required to sustain a violation of probation is much lower. In order to be found guilty of violating any term of probation, all that’s required is what’s called a “preponderance of the evidence,” meaning the scales just have to tip ever so slightly in favor of the proposition that the person violated some probationary term or other.
Let me be very clear about this: The chance of outsmarting the Judge or fooling him or her with some BS excuse for violating is slim to none.
As I said before, they’ve heard it all, and probably a million times over, at that.
When you’ve screwed up probation by drinking or using drugs, and then getting caught, it’s important to work around that situation as best you can; trying to fool the Judge is a losing bet.
The “workaround” begins with knowing what will fly and what won’t, both in the larger context of probation violations in general, and in the specific setting of your case, and your Judge.
There are some Judges who are a lot more “understanding” about such things than others, and if you take that to mean that some are much tougher, then you’re following the trail of breadcrumbs here.
My team and I have learned, through day-in, day out, hard-won experience, in the same circle of Metro-Detroit area (meaning Wayne, Oakland, Macomb and surrounding Counties) courts, that how a person’s behavior is explained can have a dramatic effect on what ultimately happens to him or her.
Speaking frankly, when a person is facing a probation violation, the first order of business is to NOT GET LOCKED UP. This is a very real risk when going back in front of a Judge for screwing up a break he or she gave you by not putting you in jail the first time around.
And yes, this is one situation where a person’s “gut” is almost always right: Probation violations suck, and if you’ve gotten caught drinking, using drugs, or picking up a new offense, then you need some serious help to save your skin.
It would be easy for me to simply say that the best thing to do is “call us,” but the truth is that the reader may live outside of the area where we go to court, and even those who do live within the geographic area where we handle criminal and DUI cases (our driver’s license restoration practice is state-wide) may want to use their original lawyer.
That’s fine, as long as the lawyer is as candid about the whole situation as I’ve been here. I almost certainly don’t know the reader, but I think I’ve managed, within these few pages, to lay things out rather plainly. Thus, if a person is inclined to return to a lawyer they already know, that lawyer should be no less candid and clear-spoken.
Most of what really matters for a lawyer handling a probation violation is not so much legal skill as it is the ability to persuade. When a person misses a breath or urine test, or otherwise tests positive because he or she was clearly drinking, there is no legal “loophole” to get him or her out of trouble.
Instead, it falls to the ability of his or her lawyer to convince the Judge to give him or her yet another break.
The ability to do this is (or not) is something of a talent. And to be clear, this is definitely not the time to be looking to hire a bargain lawyer. There isn’t much that’s persuasive about any lawyer who thinks one of his or her best attributes is being “affordable.”
However – and this is equally as important – lots of lawyers put a price value on their services far in excess of what they’re really worth.
The world is full of mediocre lawyers charging premium fees for average work.
That’s not going to help you, either.
Rather, a person should look for the kind of lawyer who is, in fact, charismatic and persuasive.
The “right” lawyer for most PV cases in the one who can talk circles around everyone else. I know that if I was facing a probation violation, there are loads of brilliant lawyers with top-notch legal skills that I’d skip over, opting instead for the few who have that special gift of grabbing and holding a person’s attention.
When you’re standing in front of a Judge for violating probation – a Judge who has heard it all, meaning every excuse in the book – the LAST thing you want is some lawyer droning on and saying the same things every Judge has heard too many times over, like how much their client regrets it, or that the client just wants to get on with their life, and how they promise they won’t do it again.
Instead, the lawyer has to convince the Judge that something is different now, and that generally requires that something actually be different now. An attorney shouldn’t just take someone’s money and show up at a probation violation hearing, hoping to hit a home run.
What has to happen is that he or she has to get to know the client, get to know the relevant facts of the underlying case if he or she didn’t originally handle it, and then work with the client to find out what has, in fact, changed about his or her thinking since whatever they did (or failed to do) that caused the violation in the first place.
When I say that a lawyer must have “charisma” and be “persuasive,” that isn’t a bunch of hot air; those talents are necessary, but they can’t be used just to spew BS, either.
Judges know BS when the hear it, or see it, and they know genuineness when the hear that, or see that, as well. The lawyer who will stay a Judge’s hand and convince him or her to NOT lock up the client is the lawyer who is not only charismatic and persuasive, but also genuine and honest.
If you’re facing a probation violation and looking to hire a lawyer, be a good consumer and read around. Read how lawyers explain things, and how they explain themselves, as well. When you’ve done enough of that, start checking around.
All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions and explain things.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at either 248-986-9700, or 586-465-1980.