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Articles Posted in Probation

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As a local, Detroit-area criminal and DUI lawyer, I am in court just about every single workday, strategizing and working 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. The simple fact is that “better” is a matter of instinct, talent and skill. If you’re facing a probation violation because you’ve messed up, you need to hire the kind of lawyer who can talk the stripes off a tiger, talk you right out of trouble, and keep you out of jail. In this setting, the ability to persuade is the most important trait you need on your side.

Helping-Hand-298x300If 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). Also common are cases involving things like a missed test (the courts basically conclude a test was missed because it would have been positive) or a false-positive test. By and large, how or 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.

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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-1-219x300As 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.

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In the course of every DUI case that goes through the court system, and before ever being sentenced by the Judge, a person must, by law, complete a mandatory written alcohol screening test and meet with a probation officer for an information-gathering interview.  The results of that screening test (it is calculated using a numerical scoring system) and probation interview are used to prepare a sentencing recommendation (this too, is required by law) that is sent to the Judge to be used in deciding exactly what sentence to hand out.  In the real world, this step is THE most important part of a drunk driving case because it directly impacts what will happen to you more than anything else.  Accordingly, being prepared for both the written screening and the probation interview is critical to producing the best outcome possible.  In my DUI practice we’ll spend several hours (at least) in preparation for this, including having a separate appointment and prep session a few days before you go for your interview with the probation officer.  Among the herd of DUI lawyers, I am uniquely qualified to help with this, having studied and worked with alcohol and drug issues for over 2 decades as well as having completed a formal University post-graduate program of addiction studies.  The development, diagnosis, treatment of and recovery from addiction disorders is at the core of everything I do, every single day.

Tester-2-300x265Preparation for the alcohol screening test begins at our very first meeting.  I typically use about an hour at that first appointment to going over (or, as I say, introducing) the questions you’ll be answering because I believe this information is best absorbed by being presented twice; initially at that first meeting, and then again, typically at our second office appointment right before you go in for the meeting with probation.  This whole process of alcohol screening and meeting with probation is variously referred to an assessment, a PSI (for pre-sentence investigation), and/or a screening.  Whatever it’s called, it refers to the procedure and process wherein a person completes the written alcohol screening test (to confuse matters more, the testing instrument itself is sometimes called a “substance abuse assessment”), meets with, provides information to, and is also interviewed by the probation officer.  All of this is used to formulate that written sentencing recommendation given to the Judge.  It is a critical mistake to allow the client to take the screening test and/or walk into that probation meeting without having gone over everything in order to make sure he or she is thoroughly prepared.

Perhaps the biggest and most common miscalculation I see lawyers make is assuming that, when they speak at the sentencing, they can somehow convince the Judge NOT to follow the probation department’s recommendation in some significant way.  It doesn’t work like that; it never has, and it never will.  When you walk into court on the day of sentencing, your lawyer is required to get a copy of the sentencing recommendation from the court clerk and review it with you.  In fact, the Judge will specifically ask if you’ve seen the recommendation, and if there are any errors within it that need to be corrected.  Later, you and your lawyer will be asked for any comments about the recommendation itself.  This is more a formality rather than anything else, because in the real world, pretty much every Judge, in every court, follows the recommendation, if not to the very letter, then damn close to it.  To put it another way, the sentencing recommendation is really the blueprint for what’s going to happen to you, and there is simply no Judge who is going to disregard any substantial part of it.  This means, then, that the best and only real chance you have to influence what’s recommended, and, in turn, to affect what ultimately happens to you, is to be prepped and ready for the screening and the probation interview.  It is a fool’s errand, really, to just show up in court and start arguing against the recommendation as it sits in the Judge’s hands.  That’s no better than pissing in the wind.  Indeed, if you are not carefully readied for the whole PSI process, then you are stumbling blindly through your DUI case without any kind of plan.

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Of all the things I do in my criminal practice, none is more acutely serious, yet nearly as un-technical or less legalistic than handling probation violations.  There are really 5 things you should know if you’re facing a PV (also called a VOP for “violation of probation” in some courts, and a “show cause” in others).  We’ll set them out below and then look at each, in turn:

WCsTCWT41. Your lawyer is your most important asset.  Now is the time to hire the best-spoken attorney you can get.  Sure, you can go cheap, but how much good will the money you saved do you when you’re sitting in jail?  You don’t always get what you pay for, but you’ll almost never get what you don’t pay for.

2.  Facts matter.  What happened, and what did not happen, and the why of it all is important, especially if it helps your cause.  You need to make sure your lawyer takes the time to understand everything relevant about your alleged violation in order to make things better for you.

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In part 2 of this article, we continued our inquiry into probation violation cases in Michigan criminal and DUI cases.  In particular, we tried to see how the whole violation thing is perceived by the Judge who sentenced you for a drunk driving offense or something like a drug (including marijuana) crime.  We also noted that although positive test results are the most common reason for being violated, missed tests come in a reasonable close second, with false-positive results a distant third.  Here, in our 3rd and final part, we’ll go into the courtroom itself and see how it is proven that a person has violated his or her probation and how that plays out in front of the Judge.

Decorative Scales of Justice in the CourtroomUp to this point, we’ve looked at the 3 most common reasons that give rise to a probation violation:  A positive result, a missed test, and a false-positive result.  Now, let’s look at how these are handled in court and what must be shown to prove that there was, in fact, a violation.  That “showing” is technically called the “standard of proof.”  Everyone knows that if you’re accused of a crime and go to trial, the prosecutor must prove your guilt beyond a reasonable doubt.  A probation violation is proven by a much lower standard, called a “preponderance of the evidence.”  The most common way this is explained is to imagine the scales of justice sitting even, or level.  As soon as you put something on one tray, it goes down and the empty side goes up.  Now, if you put something of equal weight in the other tray, the scales go back to even and level.  If you put something that weighs just a little more on one side than you do on the other, then the heavier side falls farther down, and the lighter side remains higher.  Surely you get this.  A preponderance of the evidence means just enough evidence to tip the scales from being exactly even, one way or the other.

Let’s consider an example:  Assume that Sneaking Sam has missed a test.  Now, picture the Judge on the bench, with the scales of justice next to her, and they’re level (even).  She looks at Sam and says, “I have a notice that you missed a test last week, Sam.” She then grabs a 5-pound weight and puts it on one of the scales, causing it to tip.  So far, the preponderance of the evidence weighs in favor of Sam having missed his test.  Next, the Judge asks what Sam has to say, and his lawyer explains that Sam’s boss called him in early the day of the missed test because there had been a flood at the workplace, and hands up a letter from the boss to that effect.  The lawyer also offers up a make-up EtG test taken the next day.  The Judge then takes a 2-pound weight for the letter and a 2-pound weight for the make-up test and puts them on the other scale, causing the missed test side to rise.  Still, the scale hangs a bit lower on the side of the missed test.  That’s because the preponderance (think of it as the majority) of the evidence supports the idea that Sam did, in fact, miss his test.  Sure, he has a relatively good reason for doing so and it’s true that he has a clean make-up test, but in terms of the simple allegation that he missed the test, Sam’s evidence does not outweigh that on the “missed” side.

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In part 1 of this article about Michigan probation violations, specifically in the Detroit-area district and circuit courts of Wayne, Oakland and Macomb Counties, we began examining what happens when a person who is on probation for a criminal or DUI case either tests positive or misses a test altogether.  I pointed out that to the Judge, a violation of his or her order to not drink (and/or not use drugs) by either a positive or missed test can feel like either getting the middle finger from the person to whom a break was given.  The only other alternative to “screw you, Judge,” is that the person is suffering from an overwhelming and irresistible compulsion to drink (or smoke weed or whatever).  As we noted, however it plays out, a missed or positive test does not look good.  I certainly understand that people who do have a drink (and get caught) are not, for the most part, trying to “flip off” the Judge, nor are they caving into cravings of some sort, but rather just want to be normal, like everyone else.  An order to not drink, however, must also be seen as a part of one’s punishment for the original offense, and a missed test, even if it is followed by a clean make-up test (or there is a “good” explanation for missing the test) is a violation of the requirement that a person test when directed, on the schedule ordered, and not one that is “convenient.”  In other words, part of the penalty for a criminal or DUI conviction is that you don’t get to act normal by enjoying an adult beverage.  At the end of part 1, we were, figuratively speaking, standing in front of the Judge who was wondering if a person tested positive because he or she is hell-bent on NOT following the rules or is otherwise unable to cope with his or her urges to drink (or use drugs).  We concluded by pointing out that it’s that very spot where most people really get a sense of how bad their situation looks, and asking what can be said or done to make it better.

Plan-or-Growth 2.0There is no simple, one-size-fits-all answer to that question.  And to be perfectly honest, some Judges are “easier” than others.  You can call them more forgiving, lenient or understanding, but the plain fact is that there are some Judges who won’t really have much interest in your side of things if you test positive, and I can think of at least one Judge who will have about ZERO interest in anything you have to say once you’re caught drinking or smoking weed while on probation.  In that sense, as you look for a lawyer, you need to find one who really knows the Judge or Judges in the court where your violation is pending.  For example, that Judge who would probably have the least interest in anything you have to say is also (not surprisingly) rather short on patience, so it would not be a good tactic to go in there with an attorney who will drone on and on about kinds of stuff she DOESN’T want to hear.  Any chance to change her mind needs to come right out of the gate, not after torturing her by babbling on and on….

As we noted above, the goal in a probation violation case is to convince the Judge that you neither callously disregarded his or her orders to not drink (or use anything else) nor do you have an underlying problem with urges too strong to resist.  Of course, everyone’s first strategy is to say that very thing.  Part of the problem with such a plan is that, almost without exception, everyone does and says that same thing.  Over the course of my 26 years, I have read, quite literally, thousands of DUI police reports.  Ask any DUI lawyer or any police officer what people say when the officer asks if the person has been drinking, and you’ll learn that far and away, everyone gives about the same answer; “2 beers,” “2 drinks,” or “a couple of drinks.”  No one replies, “Hell yeah; officer, I drank a lot, and man, am I am really drunk right now!”  Likewise, everyone who stands before the Judge for drinking while on probation says that he or she didn’t mean any disrespect nor do they have drinking problem.  So if that’s not going to fix things, what do you do?

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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.

27777764-fresh-we-need-to-talk-symbol-background-with-space-for-own-text-Stock-Photo-300x300We’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.

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As a Michigan criminal and DUI lawyer who is in court almost every single day, one of the most common situations I see involves someone on probation for a criminal or DUI charge testing positive for alcohol or drugs (often, but not always, marijuana). If you’re reading this, it’s likely that you, or at least someone you care about, is or will be facing a probation violation for a positive test result. In almost every case, there is no dispute about how or why there is a positive test result, except that some people will still try to offer what is known as the “Nyquil defense” and blame the detectable presence of alcohol on the use of something like cold medicine. Let’s not waste any more time than necessary on this: There is no sitting Judge who will buy this story (you have to gulp the stuff by the multiple bottles for it to show up) which is why it is has been nicknamed the “Nyquil defense” in the first place. If that’s your excuse, then you’ll need a new one. The point here is that, almost without exception, a probation violation for a positive test result happens because a person has, in fact, used the substance that showed up. That will be the focus of this article.

!0_0000_MORGUE_DrugTest_UrineSpecimenCup.jpgIn many cases, a person will just take the chance that he or she won’t get called in for or will otherwise have cleaned out enough to pass a breath or urine test. Most of the time, it’s not like the person has been partying up a storm; failing a test is usually a case of bad luck and bad timing. Even so, the reality for anyone facing a probation violation for a positive breath or urine screen is that you’ve been caught, and absolutely everyone knows that going back in front of the Judge is not going to be fun. Sure, there are 2 sides to every story, but in the case of a probation violation, unless you can clearly show that the test result is wrong, the Judge’s side of that story is the only one that matters. For everything we could say, the bottom line is that the Judge is looking at someone he or she could have put or kept in jail, and who, despite the fact that it was explained that staying out of jail requires not drinking alcohol or using drugs, chose to do so anyway. There is no way to sugar coat or soft peddle this.

At this point, it is tempting to go off on how it’s unfair that a person who has never been in trouble before and who got caught in one mistake is penalized to the point of not even being able to have a glass of wine with dinner, or for some special occasion. The thing is, none of that matters. When someone is placed on probation and a condition of that probation is to refrain from drinking alcohol or smoking pot, it basically amounts to a kind of “deal” with the Judge. From the Judge’s point of view, NOT drinking and/or NOT smoking pot is the price a person agrees to pay to stay out of jail. A person is perfectly free to reject the terms of that deal, but he or she must understand that by doing so, the Judge is likewise perfectly free to reject the terms that called for the withholding of punishment, like jail. In other words, as much as it may suck to not be able to have a drink while on probation, it is what it is. All the frustration about it is nothing more than hot air that won’t help a bit if you’ve tested positive. Everybody understands this because, as much as they might express these feelings privately, no one is dumb enough to do so to the Judge. So how do we fix this situation?
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In a recent article, I looked at how the court system has an inherent bias regarding alcohol in criminal and DUI cases. The examination in that piece was, of course, from my perspective as a Michigan DUI lawyer. A few weeks ago, I received a nice, descriptive email from a past client in which he detailed his experience of having gone through the DUI process. What a gift! Of course, I was glad to hear from my client (he is a really nice guy, and when you read his email, you’ll quickly get a sense of that), but I was even more thrilled at the unexpected gift of a long email that I could use to show what it’s like to go through the DUI probation process from the client’s perspective, especially in light of how my client related it directly to my recent article about “The Alcohol Bias,” where I looked at how the court system is naturally inclined to suspect a drinking problem in just about every OWI (Operating While Intoxicated) case that goes through it. The set up here is important: My client had provided a High BAC breath test result in a drunk driving case that took place in THE undisputed toughest court in the Detroit area, located, of course, in Oakland County.

Thumbnail image for Insiderer 1.2.jpgAs you’ll see from the email itself, my client didn’t feel like he had been treated too harshly, or in any way treated unfairly. Instead, he felt the full weight of the court system’s built-in tendency to “over-diagnose” the existence and/or extent of a person’s alcohol problem. The term “over diagnosis” is not some crafty phrase I came up with as a DUI lawyer, but rather something I formally learned about doing post-graduate work in addiction studies. This is a very real concept, well understood in the clinical community, yet virtually unknown in that judicial system that suffers from it. It is relevant here because the facts of this client’s case were somewhat unique, and he was very much at risk to be ordered into an expensive and time consuming IOP (Intensive Outpatient Program), and all kinds of other counseling, education, rehab, testing and treatment. We worked hard and intelligently to minimize that, and, as you’ll see, my client was able to carry away enough from our time together to help himself from being stuck in AA that didn’t “click” with him during his time on probation. AA is great for some people, but certainly not everyone. Unfortunately, the court system is just not in a position to analyze and then act with such clinical precision, so many people find themselves in the cross-hairs of the kind of “over treatment” caused by over diagnosis.

To be clear, I have no dislike for or problem with AA in general, but I believe it is best for those who really need and want it, and will fit well with it. You may go to a particular church and find lots of comfort and inspiration from your Pastor. Good for you. That does not mean, however, that it’s the place for everyone. You may hate my favorite restaurant. Some people thrive in AA, while others hate it; some like it, some tolerate it, and some just don’t connect with it. As the saying goes, “Different strokes for different folks.” The court system, unfortunately, often sees AA as a kind of universal, super-cure-all, even though it is certainly not. If there’s one lesson that seems to go perpetually (and curiously) unlearned, it’s that sending someone to AA who does not belong there, or who is turned off by it, will almost certainly never produce the desired outcome. In other words, if someone is forced into AA who doesn’t like or need AA, then they’re not going to get any help from it. That’s like sending a skinny person to Weight Watchers. Likewise, even if someone needs help, forcing him or her to get it from AA alone is rather short-sighted, given that modern research has and continues to validate an ever-widening panorama of helpful treatment options, including things like Cognitive Behavioral Therapy (CBT), brief interventions, individual counseling, group therapy and other support groups besides AA (Smart Recovery, Women for Sobriety, ect.). With that as our background, let’s move on to my client’s email (reprinted exactly as written, including typos, with the exception of the removal of his Probation Officer’s name), and get his take on all this:
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As a Michigan Criminal and DUI lawyer, I sit in various courtrooms almost every single day, and often several times per day. I get the chance to watch more cases that you could count. An important part of what I do involves handling probation violation cases. Like so many of my other articles, the inspiration for this short installment is something I observed during the week this article was written. It was a busy week, and I was really all over the map in terms of cases and the various courts I had to visit. For some reason, an unusually large number of the matters I heard last week were probation violations, even though I had none on my own schedule. Again and again I heard people step up to allegations that they either drank alcohol, used drugs (particularly marijuana), or missed a test while on probation, despite having been specifically ordered not to do so by the Judge.

Thumbnail image for Bax 1.2.jpgIn the world of probation violations, testing positive for alcohol and/or drugs, or missing a test, are far and away the most common reasons that someone has to go back before the Judge. In one of the cases I saw, the lawyer, to his subsequent regret, tried what the Judge herself called “The Nyquil Defense.” I’ve written about this, and so have other lawyers, but it bears repeating: No Judge believes that a breath or urine test that’s positive for alcohol was caused by using cold medicine. This old excuse has been so universally discredited and rejected that even if someone really did produce a positive test from the use of something like Nyquil or Vicks Formula 44, he or she is screwed. It won’t fly. There’s a lot to this, but it boils down to the amount of cold medicine a person would need to use to test positive, and the math never adds up. In the real world, it’s assumed you’d have to chug a couple of bottles of the stuff, and that, no matter how bad you may have felt, sounds a lot more like “abusing” the stuff than “using” it. You won’t even get that far, however.

We can debate the how and why of all this until the stars burn out, but the plain fact is that violations like this just happen. If you’re reading this, it’s probably because you, or someone you care about is facing a probation violation, and there’s a very good chance that it’s for a positive alcohol or drug test. The bottom line to looking for a lawyer is to find one who can keep you out of jail because you don’t need to be a rocket scientist to figure out that the Judge is not going to be happy when you go in front of him or her for a positive test result. Jail is always a real possibility in any probation violation, but the logic behind it is a lot clearer when you’re standing before the Judge for doing something he or she specifically told you not to do. When you stop and think about it (and you probably have done a lot of that), there aren’t really a whole lot of good excuses to help you out. This is the exact point where the charisma and persuasiveness of the lawyer you decide to hire becomes the most important thing in your life. Let’s put this in context…
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