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.
There 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?