Michigan Criminal Defense Lawyer Blog
If you are facing a DUI in Metropolitan Detroit, then you are also quite likely to wind up on probation, as well. As a Michigan DUI lawyer with nearly a quarter century of experience in Macomb, Oakland and Wayne counties, I know how things work in all of the local courts. Because I exclusively concentrate my practice in the Tri-county area, I can speak from a position of authority about what happens here.
The first order of business in any DUI case is to obtain and examine the evidence. If there is a chance to beat the case, it almost always lies in finding something wrong with the evidence, or the way it was obtained. To be clear, I’m not suggesting that there is always something wrong with the evidence, but rather that it must be examined carefully to see if there are any irregularities regarding it that can be used advantageously. The simple fact is that most DUI cases don’t present themselves with all kinds of evidence problems, begging to be thrown out of court. Some people blow an absolute fortune in legal fees chasing the hope that their case will be an exception, only to get a hard and expensive lesson in reality when it doesn’t happen.
For the most part, anyone interested in finding out what probation is all about probably hasn’t been on probation, so the likely reader of this article may very well be someone facing a 1st offense DUI charge, and who has little or no prior record of any kind. This article will be the first in a loose series about probation in DUI cases. It is worth noting that probation today is different than it was as recently as half a dozen years ago, so anyone who has been on it before might be surprised to find out that things have changed, and not necessarily for the better, either. So what is probation all about, really?
To begin, probation should be understood as an alternative to jail. Think of DUI probation in the context of probation at school, or a new job, and it becomes clear that it is really a chance to prove yourself. In the context of school or work, if you do well, you get to stay. In the context of a DUI, if you do well you get to stay out of jail. Mess up on probation for school or work, and you’re sent packing. If you mess up probation in a DUI case, you wind up facing what’s called a probation violation and can be sent to jail.
Probation starts, therefore, as an opportunity to not face certain negative consequences. In the school setting, it requires you to keep up your attendance, grades and behavior. Obviously, you wouldn’t be on probation in the first place if they had been). In the workplace, probation is usually given when you start a new job to make sure you work out, meaning show up, arrive on time, and complete your assigned duties. In a DUI case, probation means that the Judge specifies a time period within which you are to NOT do certain things (principally, get into any more trouble) and, sometimes, DO other things, like complete a class or series of classes. This is basic stuff, and most people already understand this much.
Most DUI probationary periods for 1st offense cases are either one-year, or, in some more conservative courts, a year and a half. Someone being sentenced for a 2nd or 3rd offense case should, understandable, expect a longer term of probation. There are still some jurisdictions in the Detroit area that will, in certain cases, allow a 1st offender to skip probation and just pay a fine. Other courts will allow a person to have what is called non-reporting probation, which is almost like no probation at all. These represent the minority approach.
Probation is, whatever else, a break. Normally, if you are placed on probation, the Judge will tell you that, as a condition of probation, meaning a condition of staying out of jail, that there are certain things you may not do, and others that you must do. First and foremost, every single Judge in every court, without exception, is going to order that you not consume any alcohol. Most Judges will enforce that by requiring that you provide breath or urine samples at various times during your probation. This testing requirement can range from “random,” and result in your being tested only once or twice over the course of your entire term of probation, or even not at all, to testing several times per month, or even per week. Usually, a person will be tested more frequently if his or her BAC was higher, and/or if they have a prior DUI.
This snags a lot of people. I am amazed at the sheer number and kinds of people who wind up testing positive for alcohol while on probation. It would be one thing if only people who looked or acted like hardcore drinkers tested positive, but everyone from professionals to housewives to the most unlikely of candidates can get caught because they had a glass of wine or two the night before, thought they’d be okay by the morning, and then get caught. The most common excuse used in this situation is that a person claims he or she wasn’t feeling well and used cold medicine. This story is so worn out that a number of probation departments have a sign in their reception areas warning not to even try it.
It goes without saying, but another standard condition of any probation is that you do not get into any more trouble. Today, the day I began writing this installment, I received a call from a client of mine, an established family man in his mid-fifties who has never been in trouble in his life until a recent DUI, and suddenly, he is dealing with a new situation involving leaving the scene of an accident. He may very well be as innocent as a day is long, but the larger point here is that when you’re on probation, you not only have to avoid trouble, you have to avoid being unlucky. Everyone says they’ll be fine, but over the course of nearly 25 years, about 5-10% of all people on probation run into some kind of difficulty while on it.
Don’t drink, don’t use any drugs, and stay out of trouble; those are the usual and standard conditions of most probation orders. It sounds easy, and it really should be easy, but it seems that once the fear and threat of jail recedes, lots of people lose site of the need to remain vigilant. For whatever reason, though, enough people seem to catch a run of bad luck once they get a DUI and it continues right into probation. As I said before, you not only have to avoid trouble, you have to avoid being unlucky.
If you’re on probation, beyond just staying out of trouble and not doing any of the things the Judge has ordered you not to do, you are likely to be required to do certain things, as well. In most DUI cases, you can count on having to complete what’s called a VIP, or victim impact panel. This is a one evening, several hour program put on by MADD, usually held one night every week at a central location. All you need to do is show up and sign in.
Beyond a likely VIP, there are numerous things that the Judge can order, including an additional class, a bunch of classes, as well as counseling of varying durations. My entire mission in a DUI case is to avoid as much of this headache as possible for my client. This part of the case is critically important because, when you get right to it, the bottom line in any DUI case is, really, what happens to you. Another way I describe it is that success in a DUI case is defined by what doesn’t happen to you. None of this happens is a vacuum; the Judge doesn’t just decide to order something out of the blue. Instead, he or she is given a sentencing recommendation by the probation department written after you meet with a probation officer for a mandatory interview, and complete a mandatory alcohol-screening assessment. If you’re my client, I will use my clinical and legal knowledge to make sure you do as well as possible on this assessment.
We’ll leave off here, and then pick up this topic from this point in the next article. It will take a couple of pages to sort through this, but the stakes are so high that anything less than a proper treatment is waste of time.