Probation

The art of Properly Handling a Probation Violation

February 7, 2020 | by Jeffrey J. Randa

There is no other proceeding in the legal world that involves a dynamic combination of both luck and skill like a probation violation. While there are plenty of situations in which the allegations in a violation are untrue, in the real world, more often than not, it comes down to a person either having done something they weren’t supposed to do, or not doing something that was required of them. The notion that properly handling these cases involves both luck and skill is very real, and makes the whole thing more of an art, rather than anything else.

I luck-skill-300x195 n terms of luck, this means that, on the one hand, if a case has been assigned to the most impatient Judge around who is known for not being interested in any excuses about anything, that’s bad luck. On the other hand, if the presiding Judge is known to be “forgiving,” then that’s good luck. Unfortunately, there is nothing that can be done about the Judge to whom a case is assigned, other than to make the best of the situation.

And there we get to the skill part of this: the lawyer must make take into account and work around the temperament of the specific Judge assigned to the case. It is critical to have a lawyer who is familiar with the court and knows how that Judge does things. As much as a lawyer needs to talk his or her client out of trouble, knowing the Judge and what will (and won’t) fly with him or her will help avoid talking the client into trouble, as well. For as much as my team and I talk, we also know when to shut up, and that’s important, as well.

Michigan Criminal and DUI Charges for Those with Little or no Criminal Record

July 5, 2019 | by Jeffrey J. Randa

It’s a good thing to be a novice when it comes to facing criminal charges. As very experienced criminal lawyers, my team and I are lucky to spend most of our time with clients who are relatively inexperienced with the criminal justice system. A good person who finds themselves in a bad situation will do well with a lawyer who understands that all of this is new to him or her, and who can make things understandable for what is hoped will be a one-time (or last) trip through the criminal court process.

1_3TBatnV_zBfnXh5MzlcN4g-300x210 Although we do handle a lot of 2nd and 3rd offense DUI cases, and even though they’ve been through the system before, those clients aren’t any kind of “criminals” in any real sense of the word. My team and I specifically concentrate our practice on the kinds of charges that don’t attract career criminals. DUI drivers may be facing a criminal charge, but repeat offenses in this field are much more about a troubled relationship to alcohol than anything else. Thus, even for people who have prior DUI convictions, the whole experience of getting arrested again for a subsequent DUI is unnerving, and still seems like a whole “new” experience.

It is, of course, normal for someone who suddenly finds him or herself having to hire a defense lawyer to have every intention to make the whole thing a one-shot deal. This is similar to needing a root canal, where a person is glad to find professional help, but hopes to never need the person’s services again. We get that a lot, and that’s a good thing. People with no, or relatively minor prior criminal records will usually fare better. Who you are (and who you are not) as a person matters in criminal and DUI cases, and the lawyer’s job is to use that to your fullest advantage

Probation Violations in Michigan – A Stupid Defense is Worse than no Defense

April 8, 2019 | by Jeffrey J. Randa

In the world of probation violations, people try to advance all kind of stupid defenses that don’t fly. Probably the most famous is what some Judges call the “NyQuil defense,” a tired and losing attempt to explain away a failed alcohol test of some sort. In this article, I want to explain how a stupid defense can make things worse, and how a lawyer who doesn’t have the experience and confidence to call BS when he or she sees it actually makes things worse for the client, and not better.

Let’s start with the lawyers. There are too many of them so hungry for cases that they compete with each other by cutting prices down to the bone, and, for fear of losing a potential customer, will simply nod and agree with everything a potential client says. A good lawyer should be upfront and explain that a stupid idea won’t fly, not just take someone’s money and try it anyway. More than anything else, that’s the sign of a lawyer desperate for work. Remember, too, that every Judge out there has already heard every excuse in the book 10 times over, and won’t be easily fooled.

This is why the “NyQuil defense” is so famous; it would take a lot (as in multiple bottles) of that stuff to fail most breath or urine tests used by the courts. When used as directed, or even used in double-doses, a person taking cold medicine will NOT fail either a breath or EtG urine test, or will at least only produce a result that shows minimal ingestion. There is an obvious difference between test results produced by the beverage consumption of alcohol and that produced by using cold medicine, even if a person “swigs” it. Every Judge knows this, as does any good lawyer. Thus, as an excuse for a positive test result, it won’t work.

The Reality of a Probation Violation in Michigan

August 27, 2018 | by Jeffrey J. Randa

In the real world of criminal and DUI cases in the district and circuit courts of Oakland, Macomb and Wayne Counties, a certain, consistent percentage of people put on probation will be brought back for violating it. This often includes people who you would have never expected to get in any kind of trouble in the first place. I’ve had plenty of very unlikely, well-heeled DUI defendants who you’d bet would never mess up again come back to face the Judge yet another time for something like testing positive for alcohol while on probation.

297059-wile-e-coyote-218x300 There are actually 2 realities at work here: first, that a pretty regular (albeit small) segment of people will be charged with violating probation somewhere along the way, and second, that vast majority of probation violations arise because the person has, in fact, screwed up

This is important, because too many lawyers are hesitant to address this head on, and instead talk like probation violations are almost always based on false accusations. Sure, there are times when a person is wrongly accused of violating (for things like a “dilute” urine screen that wasn’t intentional, but the result is treated as if it’s positive), but most of the time, the reason for a probation violation isn’t in dispute, like when a person misses a test, or gets caught drinking or smoking weed. In these situations, the thing you need most is a lawyer who can save your a$$ and talk the Judge out of locking you up.

DUI, Ignition Interlock and Probation Violations for Drinking – Stop and Think!

July 20, 2018 | by Jeffrey J. Randa

The underlying idea for this article came from Ann, my senior assistant, as we were discussing a case where someone had violated the terms of either their ignition interlock or probation by drinking. Although I can’t recall which it was, I had Ann send me an email using the exact phrase she used in expressing her own frustration at the time – “when has NOT drinking ever screwed you up?” – and waited for the right time to use it in an article. My practice is concentrated in DUI cases pending in Oakland, Macomb and Wayne Counties and Michigan driver’s license restoration and clearance appeals for people who live anywhere in Michigan, or who have relocated to some other state. As such, I deal with fallout from people drinking alcohol all day and every day. In this article, I hope to give someone who is in any kind of legal trouble where they should not be drinking a reason to pause and think twice before doing so.

3010-267x300 The consumption of alcohol leads to a lot of problems for some folks. To be sure, most people never run into legal issues as a result of drinking. If they do its something like an MIP as a kid, or maybe a DUI as an adult, but they learn their lesson and never get into trouble again. Yet for all of those who either never get in trouble or who get past one unfortunate incident involving alcohol, there are plenty enough who seem to keep drinking despite the fact that they keep getting into trouble for it. This kind of self-defeating behavior is clear in repeat offense DUI cases, but it also is there, if not so obviously, in probation violation and ignition interlock violation cases where someone gets caught after having consumed alcohol when they shouldn’t have. As I noted in the previous installment, the problem with articles like this is that most people usually find them after the fact, when they’re already in trouble. Even if that’s the case here, I want to give the reader something to think about so that he or she can resolve to not make the same mistake again.

The majority of probation violations, especially in DUI cases, occur because someone tests positive for alcohol. This is really the crux of what Ann meant; when someone keeps getting in trouble for drinking, it might be time to take a break and ask, “when has NOT drinking ever screwed me up?” Although many probation violation and ignition interlock violation cases share the same cause – drinking – everything else about them is different. In DUI cases, I make my living in court keeping my clients out of jail, even after they’ve violated probation by drinking when they were forbidden by a Judge’s order from doing so. As we’ll see, things are a lot different, and, yes, even worse, if someone drinks alcohol and winds up with an ignition interlock violation brought by the Michigan Secretary of State, because it means losing your license all over again. For good. Let’s start there first, and get to probation violations in the latter part of this article.

Handling Bond and Probation Violations

February 23, 2018 | by Jeffrey J. Randa

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.

Second_Chance-300x281 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.

Bond or Probation Violation for a Positive Alcohol Test

February 19, 2018 | by Jeffrey J. Randa

In my capacity as a DUI and driver’s license restoration lawyer, I deal with positive alcohol tests and the problems they cause just about every single day. This article will focus on failing a PBT and/or an ETG test in a DUI case. This happens either when a person is required to test while on bond, or while he or she is on probation. We’re going to be blunt and honest in our discussion here. In that context, it’s almost a given that you’re not here reading this because you want to know how to avoid failing an alcohol test in the first place, but rather because you have already failed one. Sure, there are cases where a person is the victim of a false positive result, but we won’t waste much time on that because the vast majority of positive results do, in fact, accurately reflect that a person had been drinking. For the most part, this article will focus on those real life situations where a person has been caught, despite being ordered to refrain from consuming alcohol, and now faces going back to court for a bond or probation violation.

ScrewedUpMyStory-300x300 The reader may be surprised to learn how often this happens. Because I am a DUI lawyer, and not some guy who takes on every kind of case under the sun, almost every client in my busy office comes in for something related to either current or past OWI case, or at least something similar. I begin almost every workday in some court or other for a DUI or DUI-related case. Over the course of my years, I have been involved with, quite literally, more failed alcohol and drug test violations than I could ever count. I’ve handled violation cases for people in every kind of occupation, from doctorate-level professionals, successful business types, to folks who are changing careers. The point I’m making is that getting caught happens to people of every stripe. What I want the reader to understand is that this has less to do with my practice than the experience of the court system and the people that go through it. It’s no more surprising for a surgeon, nurse, accountant or lawyer to wind up violating a “no drinking” condition of bond or probation than it is for Snake the Biker to do so. Accordingly, alcohol and drug testing is the great equalizer, and here, one’s social capital doesn’t count for very much, because positive is positive, whether you are the Executive Vice President of a Fortune 500 company or you empty trash cans at the mall.

This, of course, explains why probation officers and Judges are skeptical, and can seem almost outright cynical. They become that way over time. This will happen to anyone who plays some part in this system (including me, except I get paid to work past it). With time and experience, you hear and see it all, from the occasional false-positive test to all kinds of bizarre circumstances, with offers of just about every excuse you could ever imagine. In fact, one of my all-time favorite explanations that people give for testing positive for alcohol actually has a name – the “NyQuil defense.” You can probably guess the rest. I know better than to try using it, but it wasn’t long ago that I saw a lawyer standing next to a client in a local court and as soon as cold medicine was brought up, the Judge, quite literally, waved it off with her hand and said something like, “Oh no, we’re not even gonna try the NyQuil defense.” I was on my way out of the courtroom, but I sure hope that lawyer had a better “plan B” than his “plan A.”

Clearing up an Outstanding Michigan Criminal, DUI or Probation Violation Warrant

October 30, 2017 | by Jeffrey J. Randa

This article will examine those situations where a person has an outstanding criminal or DUI case, or an old warrant (for something like a probation violation) that needs to be cleared up and wants to take care of it. As a Michigan criminal and DUI lawyer, my office handles several matters like this every month. Over the course of the last 27-plus years, I’ve done this so many hundreds and hundreds of times and know the procedures so well that it’s easy to overlook the fact that someone trying to get a handle on it may want to know something about how it all works before deciding to call a lawyer.

At it’s most basic, an old or outstanding warrant is there because you didn’t show up. Even if you were abducted by aliens, the bottom line is that there is a pending court matter that has not been addressed. In the course of my years, I’ve seen every reason imaginable, from people who were going through a bad time “back then” and just blew it off, to folks who truly never knew about the case or warrant, and everything in-between. Whatever the history, there are only 2 situations that really matter now, and that’s whether you’re turning yourself in voluntarily or you’ve been picked up somehow. In other words, are you a voluntary surrender, or did you get get caught? Of course there are nuances to all of these things (someone who got picked up as a result of a traffic stop may have truly not had any clue he or she had an outstanding warrant, and someone who has let a matter hang out there for years may be motivated to take care of it only because he or she needs to do so for something like a new job), but in general, it’s almost always better to present yourself rather than have the warrant catch up with you.

Part of my job, at least in a voluntary surrender case, is to make arrangements with the court to handle the matter. Every court is different, at least to some extent. Sometimes, there’s nothing more to arrange beyond just showing up together. Many district courts, however, only handle these matters on certain days and/or at certain times. This seems strange, that a person who is “wanted” and is willing to come in to recall an outstanding warrant can really only do so on certain days, and/or at certain times, but that’s the reality. This is more important to someone who now lives out-of-state, or far away from where the case is pending, because one of the big goals here is to minimize the number of trips to court and to get this resolved as efficiently as possible. Of course, on of the biggest fears is that you’ll be thrown in jail, but I cannot recall a single instance of that ever happening to any of my clients when we’ve done this voluntarily. Normally, I will instruct the client to bring a certain amount of money for bond (just in case), but however that part of things plays out, both my client and I can plan to walk out the front door together, often with a new date to come back to court.

How to get Through a Probation Violation in Michigan

September 22, 2017 | by Jeffrey J. Randa

As a local, Detroit-area criminal and DUI lawyer, I am in court just about every single workday, strategizing and speaking to make things better for my clients. however, lots of lawyers are in court everyday, so that alone doesn’t make any particular one better than all of the others, in the same way that the hot dog vendor is at the hockey arena almost everyday, but that doesn’t make him or her any kind of star player. It’s a matter of instinct and talent. If you’re facing a probation violation because you’ve messed up, you need to hire a real star, meaning the kind of lawyer who can talk the stripes off a tiger, talk you right out of trouble, and out of going to jail. In this setting, the ability to persuade is the most important trait you need on your side.

Helping-Hand-298x300 If we’re going to be honest about probation violations, then we need to recognize that the majority of them occur because a person has either done something prohibited (like consume alcohol, use drugs, or pick up a new charge) or not done something required (like fail to complete some kind of classes or counseling). Less frequent, but still common, are those cases that involve things like a missed test (the courts basically conclude a test was missed because it would have been positive) or a false-positive test. For the most part, how and why ever it may have happened, if you’ve been violated, you’ve probably screwed something up, even if that wasn’t your intent. Judges, for their part, spend an enormous amount of time everyday listening to excuses about all this. For example, one of the most common (and least accepted) reasons given for a positive alcohol test is the use of cold medicine. It is so worn out that it is known as the “NyQuil defense” and so widely disbelieved that you can practically read the frustration on many Judges’ faces as someone tries to use it. Beyond the NyQuil defense, every Judge has heard every other excuse in the book, probably a thousand times over, so to get the best result in a PV, you can’t walk into court and sound like everyone else.

In a very real way, I think of probation violation cases as the true test of a lawyer’s ability to communicate effectively and speak persuasively. There are some really great attorneys who can make brilliant legal arguments about things like evidence and legal procedure, but that’s all dry stuff. When you’re standing in front of the Judge for violating probation, your lawyer needs to be the exact opposite of dry. As much as this requires a superb extemporaneous speaking ability, there has to be substance to what’s being said, as well. There’s an old saying that “if you can’t dazzle them with brilliance, baffle them with bull$hit.” Neither of those things are particularly useful here, or, maybe, you need a little of both. Remember, your Judge, like every other Judge, has heard it all. As a lawyer, when I’m handling a probation violation, I have to explain my client’s situation, keep the Judge’s attention (by not sounding like everyone else), and then persuade him or her to not lock up my client. At the end of the day, it’s what doesn’t happen to you that matters most, so all of this stuff can sound real good, but it’s really only worth anything if it keeps you out of jail.

Bond and Probation Violations for Alcohol and drug Testing in Michigan DUI Cases

September 8, 2017 | by Jeffrey J. Randa

In my role as a Michigan DUI lawyer who concentrates his drinking and driving practice in the Metro-Detroit area (meaning Macomb, Oakland and Wayne Counties), I have published hundreds of informational articles about every facet of the DUI process on this blog, as well as my site. This article will be about alcohol and drug testing in DUI cases, and will also mark a slight shift from my usual approach, because beyond just confining myself to a mostly objective examination of the topic at hand, I also want to make a few “editorial” points, as well. Testing, both as a condition of bond and as a requirement of probation, has essentially become universal in local DUI cases. The inspiration for what the reader may glean as my attitude in this article came, quite literally, as I was looking at my computer screen thinking about what to write, and received a phone call from Ann, my senior assistant, describing the difficulty a client of mine was having as he struggled to comply with his testing requirement. This client lives in Florida, and has a DUI charge pending in an Oakland County district court. As I write this article, hurricane Irma is pummeling Florida, and many people from the state are evacuating, and pretty much everyone else is bracing for disaster. Everyone there is worried about just surviving, rather than urine or breath testing.

follow-the-rules-1-219x300 As Ann explained how my client wanted to do his best to comply with the court’s order, despite having to deal with an actual hurricane, I couldn’t help but remark what a HUGE pain in the a$$ all this testing stuff has become. In fact, the whole “testing” thing eats up a ton of court time, and has grown into a monster industry (in every sense of the word) in its own right. For a lawyer like me, who handles DUI issues every single day, not a week, or even part of a week, goes by without some problem arising due to alcohol and/or drug testing. What makes this such a pain is that much of the time, it’s not about my clients getting caught drinking. Instead, I see endless non-drinking issues, like missed tests, a miscommunications about testing, or false-positive results. And for those who do imbibe and get caught, it’s often like the angel of bad luck has made sure that the ONE TIME they did have anything to drink, they had to test right after.

For all the problems testing creates, and there sure are a lot of them, the simple fact is that, as a tool to ensure compliance with an order to not drink or use drugs, it is effective. Most people will resist any offers to drink or party when they know they’re going to be tested. Moreover, the majority of people who winding up testing positive do so because they did, in fact, drink or use. In that sense, testing works. However, from where I sit, dealing with the fallout of honest errors (like a missed test) and false positives, I have to wonder if the overall cost time, effort, and money just hasn’t grown too high. One cannot sit through a morning or afternoon’s session in any courtroom without at least several testing issues being heard. Of course, most of them involve someone testing positive because they ARE positive for alcohol or other substances, but plenty of others involve things like missed tests and other situations where the burden of testing just became one thing too many in a person’s life. Most people don’t miss a test because they decided to skip it, stay home, and watch cartoons, instead. Most often, there is either a miscommunication about the need to test, or, the person simply got caught up in life, with things like kids and work.