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?
It begins with knowing the Judge. And let me be frank about this: You don’t know the Judge. Even if you’ve been to court 10 times in front of that same Judge, that qualifies you for “knowing” him or her about as much as having had 10 fillings in your own teeth qualifies you to be a dentist. In some PV cases, I might have my client undergo a substance abuse evaluation from a specific substance abuse counselor who will tailor her report to my needs. Just to be clear, this does not mean that the evaluator will in any way “massage” her conclusions to make them better; indeed, part of what makes her so good is that her integrity is not for rent or sale and her evaluations are honest and rock-solid. Instead, she will take into account the purpose for which we want an evaluation and explain her findings consistent with that. That means that an evaluation done for a probation violation case is going to read a bit differently than one prepared for plea negotiations.
In other cases, there may be other “stuff” to get together. Most of the time, letters from well-meaning employers, family or friends are not helpful, but in some cases, they can make a huge difference. I know this sounds clichéd, but each case must be looked at individually. The Judge, the circumstances, the facts of the case – all of this needs to be taken into account when your lawyer comes up with a strategy or plan to handle your violation. If I was to give my most honest answer to how this all should be done, I’d say that it is mostly a matter of instinct, based on decades of experience. Tactical legal skills and an encyclopedic knowledge of the rules of evidence are about as helpful in a probation violation case as ballet slippers in a football game. Here, it is the ability of the lawyer to just “know” what to do that matters most, and that can change on a dime when you’re pitching it to the Judge. This is a lesson lawyers have to learn the hard way, or at least those lawyers who are capable of translating experiences into learning opportunities. It is always the fate and folly of less experienced (or hard-headed) lawyers to continue with a line of argument that the Judge is not buying. A lawyer has to be a first-rate salesperson, body-language reader and verbal chameleon, all rolled into one, because if your first plan isn’t flying with the Judge, you need to make an adjustment on the fly. Much of this is pure instinct, refined by loads of experience, and I don’t believe that such instinct can be learned, or taught. The honing of these skills is done through all that experience. A lawyer’s skills (should) improve with every passing year. Like being a musician or painter requires a certain “inborn” talent, so, too, does the ability to be really persuasive in a dynamic situation, like a probation violation hearing. It really doesn’t get any more “dynamic” than that.
False positive test results present a challenge because most often, it’s only the person him or herself saying the result is false. This is another thing Judges hear all the time – “I swear I didn’t drink, Your Honor.” The problem is that a test which detects alcohol (it’s an alcohol detector, after all, not a lie detector) says you did. This isn’t to say that the honest protest of one’s innocence is worthless. A week before this article was written I went into a probation violation hearing where we had nothing more than my client’s insistence that he did not drink, no matter what the test result indicated, and had the violation dismissed without any hard evidence to the contrary. The problem is that Judges hear desperate stories and denials all day long, and certain excuses for testing positive, like having used cold medicine or hand sanitizer just don’t work.
In the interests of diplomacy, there are certain strategies that I can’t get into here, but that come into play in certain positive result situations. Suffice it to say, for purposes of this article, that these things are not “applicable” in every case, but they do exist and should be looked at as possible ways to help in all probation violation situations. Obviously, the best possible circumstance is to stroll into court with a timely make-up test result that disproves the prior positive result in question, but that’s not always possible. If it seems like I’m being deliberately vague here, I am; if the magician explains how the trick is done, it won’t work on the audience anymore….
There is really less to say about false positives because there is less that can be done with them, and, fortunately, claims of false positive results don’t make up any significant portion of probation violation cases, anyway. Also, it shouldn’t come as a surprise that some initial claims of “false positive” are changed as a person thinks about it and then remembers how alcohol could have gotten into his or her system. Having spent as much time as I have in this field, I’ve had a number of people claim they had no idea that the punch was spiked, and I’m NOT kidding about that, either.
By way of numbers, missed tests are certainly way more common that true “false positive” test results. The problem with missed tests is rather obvious; either the miss was accidental, or it was intentional. The temptation to miss a test because of an expected positive result and then show up later and claim it was accidental, or at least otherwise not intentional, is pretty strong. To avoid having to sort through the endless such explanations, most Judges will be clear that a missed test will count as a positive test, although I’ve never seen a Judge stick by that without at least considering someone’s explanation about why they didn’t show up. Even the Judge I mentioned earlier, who has about zero interest in why a person tested positive after being ordered not to drink (or use drugs) will at least listen to a person’s explanation for missing a breath or urine test.
A missed test is one thing (literally), but missing multiple tests is quite another. This usually happens because a person just kind of gives up on staying clean and starts drinking or using again. It is sometimes easier to handle a probation violation when this occurs than it is for a single, positive result or single missed test because a person cannot offer an innocent explanation. Instead, he or she will come to court, kind of “surrendering” to the Judge and the realization that he or she does, in fact, have an alcohol and/or drug problem. These situations present another point at which I may want to have my client undergo a private substance abuse evaluation. Obviously, we won’t be looking for one that concludes there is no underlying problem; instead, we’ll want a fresh take on why a person picked up and/or used, and an update to his or counseling, education or treatment plan. In other words, you can often get some genuine sympathy for having a problem when you really come to terms with and genuinely want help for it. This is usually not the case when you’re violated for a single positive result or missed test followed by one or more of the usual denials or excuses
Sometimes, a person will miss a test because of an obligation, such as work, or a family emergency (even getting the kids to school). While it is understandable that this can happen, common sense dictates that if it does, a person should get a make-up test ASAP. In other words, if Bad Breath Brenda misses her Tuesday test because of school and work, and by the time she is able to test on Tuesday night, every place is closed, she should immediately get an EtG test on Wednesday. A subsequent negative make-up test will at least obviate any concerns that she missed the test to avoid a positive result.
But that’s not all there is to it. A missed test is, after all, a missed test. When a person is on probation and under orders to test, then missing the test is the violation, and testing later, even with a clean result, does not change the fact that a test was missed. In other words, proving that you didn’t drink or use does not, in and of itself, absolve you of the violation for missing a test. Granted, if on a single occasion a person misses a test but then obtains a clean result almost immediately thereafter, his or her lawyer can likely wrangle a break from the Judge. However, a testing schedule is a testing schedule, and every Judge expects compliance with it. If a person has a job from 9 to 5 and is expected to make 100 widgets in that time, he or she can’t just follow his or her own schedule (instead of the one the boss requires everyone else to obey) and start showing up at 11 and work until 7, or show up at 6 and work until 2, make his or her 100 widgets, and then go home, figuring everything is okay because the widgets were made. Not drinking (or using) is part of probation, but so is testing when required.
This all sounds good, but out there in the real world, lots of people just miss a test and don’t show up to answer with a doctor’s note or a make-up test. While a missed test is not the end of the world, it still causes a probation violation, and we’ll have to show up to court and make the best of it. There is no “magic” pitch to make to the Judge, nor is there some Supreme Court case to cite that, when cited, will provide a free pass. As much as I’d like to sell the idea that because I’m so charismatic and persuasive, I can just talk you right out of trouble in this situation, the cold truth is that, like we noted earlier, much of this depends on the Judge. If you’re lucky enough to find yourself on probation to a more understanding Judge, then, well, you’re lucky. In any case, the very best pitch is going to have to be made on your behalf, and it must take into account your Judge’s general disposition and idiosyncrasies.
We’ll stop here and return in part 3 to look at how probation violation cases actually play out in the courtroom, and the level of evidence (standard of proof) required to prove that a person did, in fact, violate.