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.
In 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?
First, you need some perspective: Put yourself in the Judge’s seat for a moment. Forget about yourself as the defendant; instead, understand that in every DUI case, it is a standard condition of probation that the person NOT consume any alcohol, and so you, as the Judge, follow suit and order the same thing in every DUI case that goes through your court. Keep in mind that the overwhelming majority of people make it through probation without ever testing positive for alcohol or drugs. That’s not to say some don’t drink or get high without getting caught, but as the Judge, you see only a small minority of those who do get caught. From your point of view as the Judge, you know you’ve given someone a break, and all you’ve asked of them (and it’s the same thing that’s asked of everyone, everywhere) is to NOT drink or get high. Instead, the person has not only defied what you see as your very reasonable order, but has gotten caught doing it.
What’s to say? If you were the Judge, you’d have to say that the positive test means that either the person has a problem with drinking or getting high because he or she just can’t lay off it, even for a while, or the person just doesn’t care and is basically giving the middle finger to the court and its rules. Neither of those give rise to good feelings.
When you get down to it, and as the old saying goes, actions speak louder than words. If you’ve picked up a drink (or smoked some weed) in violation of a court order, it speaks to the importance of drinking and/or getting high in your life. Who would gamble their freedom for a drink or a quick buzz? At first glance, it seems that the only kind of people who would do that either have a preoccupation with drinking or using, or otherwise just don’t care about the Judge. At least until they’re standing back in front of him or her.
In life, the reality is that this kind of stuff just “happens.” My job, as the lawyer, meaning as the “persuader,” is to generally direct the court away from the two obvious (either “I’ve got a problem” or “I just don’t care”) explanations for why my client drank or used and help the Judge see that a positive test result should not be seen as proof of an underlying problem or a lack of respect. Exactly how to do that is a function of the facts surrounding the violation itself. In that sense, and of course it sounds like a tired old cliché, but every case is different. Sometimes a violation can come after a person gets arrested for another DUI, so the positive test result is all balled up with even more trouble. In that circumstance, forget about arguing that you don’t have a problem. Other times, however, a morning test result is just barely positive, and can be explained more as a late night glass of wine, and an exception, rather than an all night drunk-fest.
To be perfectly honest, some of how I’ll go about handling a violation also depends on the person him or herself. If my client is a professional who may have had a fine dinner with friends, or even a business dinner with clients, everything is qualitatively different than if Snake the Biker winds up testing positive after a motorcycle rally. I’m sorry to say this to old Snake, but the more my client has going for him or her, the more I have to work with. Here, the persuasive skill and charisma of the lawyer matters most. Think about it; you drank or got high in direct contravention of the court’s admonition to not do so. If your lawyer is not proving that the test result is clearly wrong, then your lawyer better be talking the Judge down from hammering you. Those are the only two options in any positive test result probation violation case. To put it any differently misses the whole point…
The best advice here is simple: Hire a classy, well-spoken lawyer. Admittedly, that sounds like a subterfuge for self promotion, and, in all honestly, it is, at least in part. Still, there are courts I don’t go to and plenty of people reading this who just need some direction, so that instruction is still sound. This is not the time to hire the bargain lawyer (you’ll have plenty of time to think of all the money you saved while you’re sitting in jail) or to stick with a lawyer who didn’t impress you right out of the gate. You should not have to spend a king’s ransom to get a good lawyer, but you will have to spend some money and certainly some quality office time with that lawyer in order to prepare for your upcoming hearing. Beyond knowing the facts of your case, your lawyer has to get to know you, and how this situation fits (or, better yet, doesn’t fit) within the context of your life.
Look, I know some real legal scholars, but most of them cannot communicate in a way that really catches the listener’s attention, or is otherwise persuasive. Probation violation cases don’t require highbrow legal ability; they require the ability to sell the Judge on NOT putting you in jail. Period. At least to my way of thinking, the chance that any lawyer will be able to speak well for you is usually related to how well he or she can speak to you. A good measure of that is how he or she writes. If a lawyer’s online presence is limited to platitudes about being aggressive and tough, or merely quantifies the collective experience of a group of lawyers in the office, that doesn’t tell you anything. When you read an article, it has to speak directly and plainly to you and your situation. If not, what have you learned, or confirmed; that so and so law firm promises to be aggressive and has 40 combined years of experience? What have you learned from that?
Of course, for all my talk about speaking, you’ll need to do some, as well. At some point, you’ll probably want to pick up the phone and call around. Pay attention to how your call is answered. Is it even answered, or are you passed off to voicemail? Does the person who picks up the phone take the time to answer your questions right then and there? Is he or she sincere? Evaluate the offices you call. Whatever else, if you get a bad feeling or have any kind of reservations, don’t jump. My mom used to say to me, “If in doubt, don’t.” I’d probably have saved myself much aggravation in life if I had followed her sage advice. You’ll know when you’ve found the right lawyer or office, but that usually means taking at least a little time to read and call around. If you’re in a probation violation situation, that’s time well spent, especially when you consider the alternative.
Here’s my spot for shameless self-promotion: As you do your homework, take the time to read through my probation articles, as well as to check out my blog in general. When you’re ready to call around, and if you’re violation is in the Detroit area, meaning in any court located in Macomb, Oakland or Wayne County, make sure you call my office, as well. We’re here Monday through Friday, from 8:30 until 5:00 pm, and can be reached at 586-465-1980. Whatever else, don’t part with any money until you can look at yourself in the mirror and know you’ve honestly done your homework. It’s time to make a bad situation better, not pay to make it worse.