There are many possible reasons why a person may wind up violating his or her probation. Most frequently, a probation violation has to do with missing or failing a breath or urine test, picking up a new charge, not completing something the Judge had ordered, skipping out from probation altogether, or just not paying fines and costs. Sometimes, a person may be the victim of a “false positive” test result, or may have had to miss a test for circumstances beyond his or her control. Whether it’s for one of those reasons, or any other, the real question anyone facing a probation violation wants answered is “What is going to happen to me.”
In my other probation articles, I have addressed many different aspects of probation violation cases, but not the ultimate question: What is going to happen to me? Obviously, it would take a fortuneteller rather than a lawyer to give a specific answer in any particular case, but it’s probably fair to say that anyone going online to look this stuff up is most interested in what may or will happen to him or her. I know I would be…
We can skip all the discussion about the probation officer. If you’re facing a probation violation, all the “could have, would have, should have (coulda, woulda, shoulda)” stuff in the world doesn’t matter, because you’re already at the stage where you need to go to court and appear before the Judge. It’s kind of like a traffic ticket where you feel the cop wasn’t fair, or justified in writing you up; maybe not, but that part of the transaction is in the past, and the only thing left is to address the matter in court. Accordingly, our efforts have to be directed forward, into the future, rather than backwards, in rehashing the past. We need to convince the Judge that you have a false positive test result or a legitimate reason for something like missed a test. In cases where there isn’t a technical or practical excuse for the violation, we have to convince the Judge to go easy on you.
It is important to remember that probation is always an alternative to incarceration. From the Judge’s point of view, probation amounts to a kind of bargain, sort of like a contract: You do this, don’t do that, and I won’t stick you in jail. Think of the bank or finance company explaining a car payment: If you make the payment, you can keep the car. When you don’t make the payment, however, the bargain, or contract, is considered breached, and the deal can be called off. The car gets taken back, and you’re on the hook for the money. In the same way, if you don’t live up to your end of the probation deal with the Judge, the most important part of the deal (staying out of jail) can be called off, and you can get locked up and/or face other consequences. This is exactly what we have to avoid…
In the real world, no one gets called in for a probation violation because things are going too good. Even if you’re the victim of a “false-positive” urine or breath test, the allegation against you is that you have violated the Judge’s order of probation. That’s never good. Going in, therefore, we must do 1 of 2 things; either convince the Judge that you have a false positive test result or a legitimate reason for something like having missed a test, or, in any other situation, convince the Judge to go easy and not lock you up or “hammer” you. In other words, we have make sure nothing bad happens to you.
Going back to the “real world,” the simple truth is that most of the time a person faces a probation violation, it is because he or she has, in fact, screwed up. To be sure, I see plenty of cases where there is a false positive test result, or a person has a legitimate excuse for having missed something, like a breath or urine test. Still, most of the time I meet with someone, they’ll kind of shake their head and say something like “Well, I screwed up.” My job in these cases is, quite simply, to make sure that you get a break.
Thus, the skill necessary to successfully resolve a probation violation is either legal (demonstrating that the test result is wrong, or the tether unit malfunctioned) or persuasive, meaning that the Judge is talked out of being hard on you. And to be clear, that very much means that as the lawyer, I have to be able to talk the Judge into something else. Here’s where you need to be clear about the skills of the lawyer you hire.
Have you ever seen a tattoo on someone that wasn’t so good, or was just okay? I don’t mean the person’s choice of design, but rather the execution of it. By contrast, we’ve all seen a bit of body art on someone that was done so well, you either ask, or at least want to ask where they got it done. You figure that if you get a tattoo, you want a result that good. You want the best artist you can find. When it comes to a probation violation, you should use the same standard to find a lawyer. Just about any lawyer can “handle” a probation violation, but to produce the most successful result possible, you need a special lawyer. You need someone who is charismatic, clear spoken and very persuasive.
Throughout the nearly 25 years I’ve sat in court, I’ve heard thousands of lawyers take the podium and address the court. Honestly, in all that time, I’ve only heard a few that have ever captivated me. In fact, when I’m stuck in court and have to listen to some other lawyer deal with a probation violation, I almost immediately turn my attention to my iPhone because I know what’s coming: A boring, droning, long-winded speech that says a whole lot of nothing. I also know that the Judge expects that, and just hangs on to endure it. In the real world, meaning in actual court where real cases are decided, I have learned that, as a lawyer, I have about the first 5 seconds to get and hold the Judge’s attention. You can see this in action because in any case where some lawyer starts blabbing on and on; as soon as the Judge looks down to the papers in front of him or her (or, worse yet, begins filling them out), the argument is over. I have to keep the Judge interested and looking at me, and I do that exceptionally well.
I consider the ability to clearly, effectively and persuasively communicate to be my primary skill. I “put” things in ways most other people cannot, just like an artist draws or sculpts things in a way most others can’t. It is not a good thing to overestimate one’s abilities, but neither is it beneficial to underestimate those abilities either. False modesty seems nice, but in certain disciplines, it is useless. Would you hire a plastic surgeon that merely describes his or her work as “good?”
Just as false modesty is of no value, false pride in one’s abilities brings nothing to the table, either. Charisma and persuasiveness are important and necessary qualities, but to win over a Judge, you have to have some meat to go with an argument. When I deal with positive alcohol or drug tests, I have the added luxury of being able to call upon my post-graduate studies in alcohol and addiction issues. This means that when the probation officer is steamed because of a positive test, and the matter is about to go in front of the Judge, who is being asked to give another break to someone who has already blown the first break he or she got, I can help frame our side in clinical terms. This means deflecting the ideal that you just disobeyed the Judge’s order. Disrespect for the court? No, Judge, more like poor judgment influenced by environmental and personal factors. This wasn’t a decision to disregard your orders, this was a decision that was the byproduct of an irrational thought process; the “cure” isn’t jail, it’s a restart, or maybe some time talking it through with a counselor…
When I step into any courtroom, I am the foremost expert on alcohol and addiction issues. If your case or violation has anything to do with alcohol or drugs, why would you want anything else? Whatever else, the best tattoo artist in the world won’t do you any good when your furnace breaks down. As much as I could blab on and on about this, the bottom line is that it means that I can protect you like no one else. Let’s face facts; when you go before the Judge for a probation violation, you want to be shielded from having consequences thrown at you. For all the “legalese” a lawyer can mix into this discussion, protecting you from getting pounded by the Judge is the ultimate goal. I’ve often wondered why more lawyers don’t address this topic directly on their websites or in their articles.
Okay, so for all of this, we still haven’t really answered the question “What’s going to happen to me?” Here, I think, you’ll find that every lawyer provides a version of the same answer; it depends. If this is your first probation violation, and you haven’t killed anyone, then realistic outcomes range from a fresh “restart” of probation to some additional condition like community service, or maybe counseling. If you’ve already violated probation before (this is not such an uncommon situation), then we need to change tactics from the “it won’t happen again, I promise!” approach to actually doing something that will show the Judge action, and not just words. I handle plenty of 2nd time probation violations and have had no difficulty keeping my clients out of jail. On fact, I’ve even done so in many cases where it’s my client’s 3rd trip back to court for a violation. Persuasiveness is important, but you have to have something to be persuasive with (meaning a plan)…
As with every case, location matters. Also important is a familiarity with the Judge to whom your case has been assigned. As a general rule, if your case is serious, and your violation is serious, this is probably not the time to hire a lawyer unfamiliar with the court where it is pending. I find it very helpful to know what will fly (and what won’t) with any particular Judge. That’s why I restrict my criminal practice to the local, Detroit and surrounding areas, meaning Wayne, Oakland, Macomb, and Lapeer, St. Clair and Livingston Counties.
Normally, when a person calls and provides me with some background about his or her record, the kind of case they have, and the nature of the violation, I can give a pretty good idea of the range of probable outcomes. As I noted before, only a fortuneteller can give a specific prediction, and I wouldn’t bet on that very much, anyway. Whatever else, the ultimate goal is to make sure that what “happens” to you is as lenient and as “little” as possible. If you’re looking for that same result, then we should probably talk.