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.