What should you do if you’re facing a probation violation? In most cases, a person knows that he or she has violated before the formal notice of violation ever reaches the mailbox. It’s been a while since I’ve written about Michigan probation violations. I handle a lot of probation violations in the courts of Macomb, Oakland and Wayne Counties, and as part of that, I wind up explaining a lot of the same things rather often. When it comes to standing in front of the Judge for violating your probation, 3 of the most important qualities you need in a lawyer are charisma, persuasiveness and scientific/technical knowledge
There are a million ways a person can violate his or her probation, but there are a handful that are by far the most common: Picking up a new charge, missing a breath or urine test (a “drop”), testing positive for drugs or alcohol, violating a tether, or an alcohol (SCRAM) tether, or missing a probation appointment or appointments. If you are being violated for a positive breath or urine test, or for a positive reading or a “tamper” on a SCRAM tether unit, then it’s the third quality a lawyer needs to be helpful in a PV case; scientific/technical knowledge.
Specifically, we’re talking about understanding, backed by education and experience, about how alcohol that was consumed metabolizes in the human body, and, by contrast, how it things like mouth alcohol (usually left over from something like mouthwash) or other ambient alcohol dissipates. In other words, if a person actually drinks alcohol, his or her blood alcohol level will track a lot differently than someone who provides a “false positive” test after having used something like Listerine or Scope. Equally important is an understanding how any device that’s supposed to measure alcohol does so, and what shortcomings are common to it. Every machine is fallible, and some more than others.
Thus, if a person is on the SCRAM tether, all kinds of things can happen that either give rise to a false positive reading, or show up as a disconnect or tamper. If your case involves false readings, or tamper issues, it will take more scientific/technical understanding than legal knowledge to handle properly. In my role as a DUI and driver’s license restoration lawyer, I deal with SCRAM tethers and breath and urine alcohol testing issues daily. I sometimes forget how much knowledge I have accumulated until I receive a call from another lawyer who needs help with an issue one of his or her clients face. Nor is this any kind of exaggeration, either; just today, before I started this article, I received a call from a lawyer needing information about the volume (amount) of breath sample required to operate an ignition interlock. I was glad that I could answer his questions…
Of course, if it is claimed that you failed a drug or alcohol test, or that you interfered or tampered with whatever device you have, a probation violation will require superior scientific and/or technical knowledge on the part of your lawyer. If you really did drink, use, or otherwise tamper with your device, or, if your violation is for something undeniable, like picking up a new charge, or missing a test or probation appointment, then scientific or technical knowledge isn’t really going to help anything; you need a very charismatic and persuasive lawyer. Let me be clearer still: If your freedom is on the line because you screwed up, you need the very best spokesperson you can get. In the past, I have been a bit subtler about this point, but here, I want to speak more candidly.
This is not the time to be looking for some bargain attorney who answers his or her own phone, or relies on voicemail to take messages. You need a winner, and your chances are really slim at finding that in some low budget operation. You need a lawyer who looks like a winner. If I needed a lawyer, I’d quickly eliminate anyone who isn’t clean cut, neat, and professional looking. Rumpled clothes, crazy or unkempt hair, bushy moustaches or anything else that is the opposite of looking “sharp” would be a deal breaker to me. If that sounds judgmental, it is. How many newscasters or politicians do you see who look sloppy? Appearances count, and in the courtroom, in front of a Judge, then mean a lot.
There is more to this than just appearances, however. Style is great, but there must be substance, as well. Again, if I were in need of a lawyer, I’d quickly pass on anyone who mumbles, speaks too slowly, or otherwise cannot really captivate the listener. That kind of lawyer may work for a traffic ticket, or a divorce, or a will, but when it comes to selling the Judge on keeping you out of jail, you need someone who clearly sounds like he or she comes from the top of the heap. A lawyer’s speaking skill is the equivalent of a surgeon’s steady hand. The lawyer who isn’t extremely clear spoken is like a surgeon with the shakes!
Recently, I was contacted about a case where a person was facing a 4th probation violation. In this case, from the information provided, after having already had 3 previous violations, the person had picked up a new drug charge. The email that came to me made clear how much the person needed to stay out of jail. I understand that, but I also have to be honest. I responded that while I would certainly try my best, I couldn’t think of any Judge I know who wouldn’t be completely out of patience – or sympathy – for this kind of behavior. I simply was not going to take this person’s money and pretend that jail, on a 4th probation violation, after picking up a new drug case, would be easy to avoid. Part of being honest is being candid. I hope this article is an example of that, because I think this is huge issue for some in the legal profession. Lawyers survive by taking cases. I am lucky in that I have enough business to be able to tell it like it is, as I did with the 4th time probation violator.
The problem is that the economic need for new business can drive some lawyers to focus more on telling a prospective client what he or she wants to hear, just to get the case, rather than being up-front and not sugar-coating the situation. Still, going back to that 4th time probation violator who emailed me, I simply could not ignore the reality of the situation. It would have been so easy for me to write back all kinds of encouragement. I could have told the person how familiar I am with his or her Judge, or agreed that it was critical that there be no jail. In fact, if you’re slick enough, you can make it sound like your telling someone what they want to hear without actually doing so (“I agree; we have to make sure the Judge understands how important it is that you be able to keep your job, and that going to jail will essentially get you fired. We have to keep you out of jail at all costs, so we can use something like community service of additional fines in lieu of jail.”). That sounds good, doesn’t it? The problem is, it is completely meaningless and misleading. Look, if you’ve been brought before the same Judge 3 times already for violation your probation, and now you’ve gone out a picked up a new drug case, the last thing you need is some lawyer soft-pedaling the reality. You are really likely to go to jail. Heck, if I were the Judge, I’d lock that person up.
The “right” lawyer for a probation violation is the lawyer who speaks plainly and truthfully. If anything sounds too good to be true, then it probably is. A top shelf lawyer knows his or her place in the field. You will not find a gifted speaker selling his or her charms at cut-rate prices. Yet the other side of the coin is that you can find a lot of overpriced lawyers who place a much higher price on their services than they are worth. You have to dig around. You need to read, like you are right now, what any given lawyer has written on this subject. If they haven’t written anything useful, then there is your first clue. You have to call phone numbers. Personally, I wouldn’t get involved with anyone that uses voicemail during the business day, or anybody who answers his or her own phone. That’s not snobbery, it’s just reality. When I have to return a call to some lawyer and I get voicemail during normal business hours, I immediately know that I’m not dealing with a very professional operation. Ditto when the person answers his or her own business number.
Always remember that at the business end of a probation violation, there is a Judge who is thinking, if not saying, “I gave you a break. I gave you a few things that you had to do, and I told you there were other things you could not do. Now you’re back because you couldn’t do that” If your violation is for a false positive test, or because you missed something and you have a really good explanation (if you miss a test, it may be highly beneficial to be able to get the kind of lab test that can prove that you were not “positive” at the time), then maybe the Judge’s primary concerns can be alleviated. If you screwed up, then you need a lawyer smooth enough to be able to sell the Judge on keeping you out of jail.
If you are facing a probation violation in any court in Macomb, Oakland or Wayne County, I can help. I will give you an honest appraisal of your situation before I ask for your money. I may not be able to tell you what you want to hear, but I will certainly tell you what you need to hear, and that kind of advice really is priceless.