Key Takeaways
- A probation violation is serious and carries a very real risk of jail.
- Violations are either for not doing something required, or having done something that was forbidden.
- Sometimes, a person has a valid explanation or excuse and can get out of the violation completely.
- The law limits the potential jail time for what are called “technical violations” (discussed below).
- In those cases where a person did legitimately violate, the primary goal is to avoid getting locked up altogether.
- Knowing what will and won’t fly in the specific court where your case is pending is critically important.
- That’s why our team limits its criminal court practice to the Greater-Detroit area of Wayne, Oakland, Macomb and the surrounding counties.
A probation violation (PV) can seem like the end of the world. It’s an aggravating problem. Most of the time, a person on probation for some criminal offense knows they’ve either done something forbidden or NOT done something required by the court as part of their probation.
In one of our more memorable cases, the client, who was in a Sobriety Court program, was facing his third probation violation for a 2nd offense DUI conviction. He figured that he was not only going to be kicked out of the program but also be forced to serve a pretty long jail stint, as well.
We made sure that didn’t happen. We worked it out so that not only was he was allowed to continue in and complete the Sobriety Court program, he also didn’t have to do a single day of jail, either.
What Constitutes a Probation Violation in Michigan?
The simple truth is that there is no less-legally sophisticated area of criminal and DUI practice than handling a probation violation (in Oakland County, it’s often called VOP, short for “violation of probation”).
Usually, there is more than enough evidence for the probation department for violate someone. Also, it’s rather uncommon for the outcome of a violation to depend on some scientific fact or legal interpretation. Instead, a PV usually arises because the person has somehow screwed up by either not doing something required by the court, or having done something forbidden.
Here are some of the most common probation violations:
- A positive alcohol test or drug test.
- Getting arrested for a new crime.
- Driving without valid privileges (this happens a lot in DUI cases).
- Not completing something that has been ordered by the court.
- Not fully paying any outstanding fines and costs.
- Doing something forbidden, like leaving the state without permission.
Of course, there are some cases where the alleged violation is simply not true, and a good lawyer will help his or her client prove to the court that they did NOT, in fact, violate.
Sometimes, these situations can arise because of a botched alcohol or drug test, or because someone didn’t properly document that the client showed up for something required.
Other times, a person may have a legitimate excuse for whatever is alleged.
When that happens, the probation violation gets dismissed.
In most cases, however, that doesn’t happen, Instead, and as we frequently see, the client is left confronting that positive alcohol or drug test, or the fact that he or she that is in trouble for having picked up a new charge. Of course, a PV can also arise because the person failed to report to probation or didn’t complete something the court ordered him or her to do.
If you have to go back before the Judge for anything like that, you need a Michigan probation violation lawyer who is exceptionally persuasive.
To be blunt about it, your criminal defense attorney better have enough charm to sell Bibles to atheists, because it is precisely that kind of charisma necessary to keep the Judge from handing down a jail sentence. Of course, it’s important to hire a criminal defense lawyer who really cares, and genuinely values the attorney-client relationship, as well.
The Legal Process for Probation Violations
A probation violation is serious business. Remember, the Judge has agreed to not put you in (or has decided to let you out of) jail in exchange for your agreement to follow the terms of probation he or she has set. Now, you must go back in front of that very Judge for screwing it up somehow.
It’s an understatement to think he or she won’t be very happy with you.
The proof necessary to have someone found guilty of a probation violation charge is called a “preponderance of the evidence.” This simply means that it’s more likely than not that a person violated some term of his or her probation.
This is a much lower hurdle than the “beyond a reasonable doubt” standard necessary to convict someone of a crime in the first place.
When there is enough evidence for you to be found “guilty,” your probation violation attorney better be able to talk that Judge down from his or her frustration with you and present an alternative to simply locking you up.
The New(er) Law For Technical Probation Violations
A few years ago, a new law was adopted in the State of Michigan that focused on limiting potential jail sentences for many probation violations. Under this law, certain things, including the following, are considered technical violations:
- Failure to provide a required breath or urine sample.
- Failing an alcohol or drug test.
- Not paying all of one’s fines and/or costs.
- Not having completed required community service.
To help understand what IS a “technical violation,” we can look to what the law specifies that it is NOT:
- Absconding, meaning failing to report to probation, as required, for more than 60 days.
- A violation of any state or federal law – even if no criminal charges result.
- Consuming alcohol while on probation following a conviction for a 3rd offense OWI (or other felony DUI).
- The violation of a “no contact” order in a domestic violence case.
As was pointed out above, one of the more common reasons for a probation violation is that someone gets arrested for a new offense (thus triggering the “violation of any state or federal law”). As noted, this is NOT a technical violation, and therefore exposes the person to a potentially much longer period of incarceration.
The good news is that, for technical violations, there is a jail cap limiting how much time a person can get.
The bad news, of course, is that ANY jail time sucks, and it needs to be avoided. Simply put, no jail is always the best possible outcome for anyone facing a probation violation.
Potential Jail Time For Technical Violations
The law provides the following maximum punishments:
In misdemeanor cases –
- For a first violation, jail incarceration for not more than 5 days.
- For a second violation, jail incarceration for not more than 10 days.
- For a third violation, jail incarceration for not more than 15 days.
- For a fourth or subsequent violation, jail incarceration for any number of days, but not exceeding the total of the remaining eligible jail sentence.
In Felony cases –
- For a first violation, jail incarceration for not more than 15 days.
- For a second violation, jail incarceration for not more than 30 days.
- For a third violation, jail incarceration for not more than 45 days.
- For a fourth or subsequent violation, jail or prison incarceration for any number of days, but not exceeding the total of the remaining eligible jail or prison sentence.
As pointed out earlier, the primary goal of a “probation lawyer” is to avoid ANY jail time for the client. There isn’t a sane person who, if given the choice between no jail, or 5 days in jail, would take even 1 of those 5 days, much less all of them.
Will a Michigan Circuit or District Court Judge Give Me Jail Time?
Not necessarily. Part of the whole violation process is that the probation officer prepares a written report for the court outlining what you have allegedly done wrong (or not done, as required) to violate the terms of your probation.
Often, this report also contains a recommendation suggesting what kind of additional penalties the judge should impose, although sometimes, the probation officer will just give his or her opinion in court, at the hearing.
That said, the problem in a probation violation in either a district court or a circuit court is that someone who already got a break and didn’t go to jail is now coming back for allegedly having screwed up. If the risk of getting locked up was ever on the menu before, it’s now the daily special.
Anyone facing a PV is also realistically facing a jail sentence.
Our job is to make sure that doesn’t happen.
In every probation violation case, there are 2 important things at play:
- First, it’s always better to go in front of a Judge who is familiar with your lawyer. Now is not the time to have your attorney meet the Judge for the first time.
- Second, your lawyer better be extremely persuasive. If he or she is simply going to drone on about how sorry you are and promise that you won’t screw up again, then you should probably save your money and just go alone, or with a court-appointed attorney.
When you plunk the money down to hire a lawyer for your criminal defense in a probation violation, it is with one primary goal: keep me out of jail. If there ever was a time to hire a top-notch lawyer, this is it.
The Role of a Michigan Defense Attorney in a Probation Violation Case
When facing a probation violation, you need a very charismatic spokesperson to save your skin. Just because some lawyer kept your friend’s brother out of jail once, or even won a high-profile murder case in the past, does not mean that he or she has the skill to keep you out of jail now, in this circumstance.
Our law firm knows exactly how to do that. An important part of our approach is to limit our criminal practice to the Greater-Detroit area of Wayne County, Oakland County, Macomb County and the surrounding communities, like Lapeer, Livingston, St. Clair and Washtenaw counties, as well.
Although we handle probation violations in all these local jurisdictions, there are some courts that just seem to always have a lot of probation violations going on. This list includes:
- Bloomfield Hills
- Clarkston
- Clinton Township
- Farmington (Farmington Hills)
- Macomb County Circuit Court in Mt. Clemens
- New Baltimore
- Novi
- Oakland County Circuit Court in Pontiac
- Plymouth/Canton
- Rochester Hills (Rochester)
- Romeo
- Royal Oak
- Shelby Township
- Southfield
- Sterling Heights
- Troy
- Warren
- Wayne County Circuit Court in Detroit
Wherever your case is pending, and as pointed out before, this is not the time for your lawyer to have to learn what will and what won’t fly with a particular Judge. By getting to the same circle of courts regularly, my team and I know exactly what’s needed to devise the right plan to keep you from getting hammered in the court overseeing your probation violation.
Why Work With Jeffrey Randa and Associates
Our firm ONLY handles criminal, DUI and driver’s license restoration cases. We are in court every day – often multiple times per day – handling criminal cases and probation violations.
We put our hearts and souls into our work. We will leave no stone unturned to bring about the most favorable result legally possible in your probation violation case.
“I’m very happy for hiring JEFFREY J RANDA for my probation violation case very knowledgeable, professional, they care about people, call backs are quick, and overall Hands down best in Michigan! I highly recommend JEFFREY J RANDA” — Nathaniel W.
“Just two words describe them “The Best”. They handled my case with ease. Gave me advice and the tools to get me the best case possible.” — Derek P.
Trust Your Gut, and Navigate Michigan PV With Us
As you call around (and you should), it’s probably best to rule out any law office that isn’t really interested in the details of your case. Likewise, if the person you talk to doesn’t seem helpful, that’s probably a sign to keep looking.
Of course, make sure that you call our firm as part of your search. Remember, the attorney you hire is your spokesperson during this most critical time.
We offer a free consultation that’s both 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’ll even be happy to compare notes with anything some other lawyer has told you
When all is said and done, your lawyer either saves you – or not.
Don’t wind up in the “or not” club.
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.
Frequently Asked Questions
No, not necessarily. In fact, avoiding jail (or minimizing it) is the primary reason you pay a lawyer. The law regarding technical violations of probation set out the maximum jail time a Judge can impose. He or she is always free to not impose any jail time, or less than is allowed, and our job is specifically to keep you from getting locked up.
It depends, because there are 2 answers to this question, depending on whether a person is facing a “technical violation” of probation, or not, and whether the offense that got them on probation is a misdemeanor or felony.
Here are the penalties in misdemeanor cases:
- First violation, no more than 5 days jail.
- Second violation, no more than 10 days jail.
- Third violation, no more than 15 days jail.
- Fourth or subsequent violation, jail for any number of days, not to exceed the total of the remaining, unserved maximum potential time for the offense.
Here are the penalties in felony cases:
- First violation, no more than 15 days jail.
- Second violation, no more than 30 days jail.
- Third violation, no more than 45 days jail.
- Fourth or subsequent violation, jail or prison incarceration for any number of days, not to exceed the total of the remaining unserved maximum jail or prison sentence.
For “non-technical” violations, the Judge is free to impose ANY sentence, up to the maximum for the original offense, again, minus any time served up to that point.
Remember, the whole goal in a probation violation is to completely avoid getting locked up, or at least minimize any jail time that is handed down.
The goal is NONE, and often enough, that’s not difficult to achieve. That said, if you’re on probation for a drunk driving offense (DUI), one of the worst things you can do is either test positive for alcohol or pick up a new criminal charge.
And yet it happens all the time.
This is where the lawyer you hire will make all the difference. Sometimes, there is no way to just “talk” someone out of trouble, and proactive steps need to be taken to make things better.
For example, if a person on probation for a DUI keep on violating by testing positive for alcohol time after time, getting him or her into the right kind of counseling (or treatment) may be the ultimate deciding factor in his or her favor to not get locked up.
Clearing an outstanding probation violation warrant is easy: You show up in court and have the warrant recalled. This is called an arraignment. The judge or magistrate informs you of what’s alleged, advises you of your rights, and then asks how you plead.
ALWAYS plead “not guilty” at this stage. This is one reason why it’s better to have your own lawyer, because he or she will do this for you. Also, when you have hired a lawyer, the judge or magistrate will then know that you fully intend to show up to court again and take care of the matte so you can get a “personal bond,” meaning you won’t have to post any money to leave.
It can also help with scheduling. Under the law, a probation violation hearing must be scheduled within 14 days from the date of arraignment.
For various reasons, we often waive that time requirement and ask for more time so that we can develop and then execute a helpful defense strategy. Getting some extra time is almost always never a problem, and it can pay HUGE dividends.
A probation violation is either a felony or misdemeanor proceeding depending on the underlying conviction offense that put the person on probation in the first place.
Anyone on probation for a misdemeanor who violates is only subject to the punishment for that misdemeanor.
On the other hand, a person who violates probation for a felony conviction is subject to the penalties for that offense.
No, the rules of evidence do NOT apply to a probation violation hearing. For example, hearsay is admissible in a probation violation proceeding.
Moreover, the legal standard for finding someone guilty of a violation is called a “preponderance of the evidence,” meaning that the judge must only be convinced that it’s more likely than not that a person violated some term of his or her probation.
Put another way, all the probation department needs to do is present enough evidence to tip the scales of justice to 50.01% toward showing that a person violated some term of his or her probation.
Our consultations are free and our cases are handled on a “flat-fee” basis with upfront fees!