Michigan Criminal Defense Lawyer Blog
In the real world of criminal and DUI cases in the district and circuit courts of Oakland, Macomb and Wayne Counties, a certain, consistent percentage of people put on probation will be brought back for violating it. This often includes people who you would have never expected to get in any kind of trouble in the first place. I’ve had plenty of very unlikely, well-heeled DUI defendants who you’d bet would never mess up again come back to face the Judge yet another time for something like testing positive for alcohol while on probation.
There are actually 2 realities at work here: first, that a pretty regular (albeit small) segment of people will be charged with violating probation somewhere along the way, and second, that vast majority of probation violations arise because the person has, in fact, screwed up
This is important, because too many lawyers are hesitant to address this head on, and instead talk like probation violations are almost always based on false accusations. Sure, there are times when a person is wrongly accused of violating (for things like a “dilute” urine screen that wasn’t intentional, but the result is treated as if it’s positive), but most of the time, the reason for a probation violation isn’t in dispute, like when a person misses a test, or gets caught drinking or smoking weed. In these situations, the thing you need most is a lawyer who can save your a$$ and talk the Judge out of locking you up.
It’s exactly right here that, for a lawyer, being charismatic and persuasive beats the hell out of all the legal knowledge in the world. While only a small number of probation violations are factually unfounded, even fewer (as in almost none) will be won because of some scholarly, technical legal argument.
This has everything to do with how you find a lawyer. And while I admit to some self-interest here, the fact is that, since I only handle probation violation (PV) cases in the Tri-County, Metro-Detroit area, I have no financial motives other than to genuinely help those readers whose cases fall outside of my geographic coverage area.
There are 3 key considerations to finding the right lawyer for a probation violation, and we’ll briefly examine each. We’ve already covered the fact that most PV cases arise because a person did, in fact, do something he or she was not supposed to do (like drink or use drugs). Similarly, a person can be violated because he or she failed to do something that was required, like complete classes, community service or pay money.
First, when you look for a lawyer, the first thing to keep in mind is “local.” Here, in the larger Detroit-area, this does NOT mean you need to find a lawyer in the same city or even same county. Most of the busier criminal and DUI lawyers in the Tri-County area, like me, get to all the various courts in Greater-Detroit and know, by experience, how things are done in each.
As it turns out, I spend more time in the courts of Oakland County than anywhere else. What I mean is that you should avoid a lawyer who is unfamiliar with the court where your case is pending, and needs directions or GPS help to get there. For example, I would never take a case in Lansing, as I have no idea how things are done there, or what the Judges are like.
By contrast, I can tell you exactly how things are done in Novi or Troy versus Shelby Township or New Baltimore. Things are different still in Clinton Township versus Rochester Hills. Beyond “how things are done” in these courts, each Judge has his or her own idiosyncrasies, as well.
Thus, what really matters if you’re in trouble for violating probation is that your lawyer should have experience with the Judge presiding over your case, and knows how he or she thinks. Probation violations are all about protecting you from getting hammered, but what works with one Judge may very well not fly with another, and this is NEVER the kind of thing you want to later discover that your lawyer didn’t know, after things didn’t go so well….
Second, you need a lawyer who is not just a good speaker, but one who is exceptional. Judges hear lawyers blab all day, and some do it better than others. Being a “good speaker” is really a minimum requirement for being a litigator, in the same way that being “good” at baseball is really a minimum requirement for playing in the major leagues. How do you know if any particular lawyer is not just good, but really good?
Obviously, writings like this provide a window into how a lawyer communicates. For my part, I speak pretty much the same way I write. And if I may indulge a bit, I think that the practice of writing as much as I do has sharpened my speaking skills, as well. I arrange words all day, every day, both on paper and in speech.
Confidence and experience and practice are the breeding grounds for something like that special turn of phrase that can catch a Judge’s attention and influence his or her thinking, and that’s the kind of stuff that matters when it comes to prevent you from getting locked up.
Not that every lawyer needs to write a blog, but it is 2018, and everyone at least has a website. If a lawyer or firm hasn’t taken the time to at least clearly distinguish and explain themselves in writing, you can take that as a clue. In fact, that’s more like a red flag than a clue. In the information age, communication is more important than ever, so you should be able to get a very good idea of how some lawyer or firm thinks and works from what they publish online.
Third, you need a lawyer who will spend quality time with and listen to you. Your story is important. Before you dismiss this as marketing BS, take a moment to understand what I mean. Look, the truth is that if you tested positive for alcohol while on probation for a DUI, it really doesn’t matter if the reason you drank is because it was your birthday, or your best friend died; you drank, and that’s the violation.
I don’t mean that to sound heartless, but what I’m driving at here is that a lawyer needs to do a lot more than just be sympathetic, or understanding, or just otherwise “validate” your story. Instead, it means that your lawyer has to know your whole background, especially as it relates to the reason for your probation violation.
Thus, if you test positive for alcohol, then we need to look at the totality of your relationship to it, including the circumstances of underlying charge for which you were put on probation in the first place. Similarly, if you violate probation for getting caught driving without a license, then we need to examine that whole situation. Were you driving to work? That’s a lot different than getting caught driving to a party, and all of that needs to be explained and explored.
Handling a PV requires a lot more than just showing up and asking for mercy. Any lawyer can (and, in the right way, should) ask a Judge to “go easy” on the client. The lawyer’s first job, though, is to give the Judge a reason or reasons to do that.
This can get very deep, but the takeaway is that the lawyer has to really dig into the what and why of a person’s life, the underlying charge for which he or she in on probation, and then the circumstances of the violation itself. How can a lawyer explain anything to the Judge that he or she doesn’t fully understand him or herself? I don’t know how other lawyers do it, but when a client comes in to hire me for a PV, he or she can count on spending at least an hour (and often more) in the office so we can get a proper handle on things.
And for all the things stated above, a lawyer just has to have a certain “instinct” and know how to read the situation in court. This is a quality, like artistic or athletic talent, that you’re either born with, or not. Sure, it can be refined, but when it’s you standing in front of the Judge who has already given you a break because you’ve screwed that up, and now need to persuade another break out of him or her, you better be sure your lawyer has this talent in abundance.
The best plan can go to hell in a hand basket if you walk into the courtroom, all ready for your Judge, only to find out he or she called in sick and your case is being heard by a different Judge. And as the lawyer, I have to assess, on the spot, if a Judge isn’t receptive to what I’m saying. Of course, with more than 28 years of experience under my belt, I really never find myself trying some approach that isn’t working, but if a Judge I otherwise know well woke up on the wrong side of the bed that morning and is more impatient than usual, I need to process my “read” of the situation on the spot and adapt accordingly.
Younger lawyers, for example, can make the mistake of offering what one local Judge calls the “NyQuil defense.” Often, people will think they’re safe to not test for a while and then go out and drink, only to be wind up being tested sooner than they thought. When their results are positive for alcohol they’ll try and explain its presence by claiming to have used cold medicine. We’ll skip the science behind all of this because the bottom line is that if used properly, it’s unlikely to show up on an EtG or breath test, or, if it does, it won’t appear with levels consistent with drinking bottles of beer, glasses of wine or shots of liquor.
Anyway, lawyers like me, who have “been around the block” a few times know better than to even indulge this strategy with a client. Those lawyers, however, who either don’t know better or who are afraid to level with their clients for fear of losing out on a legal fee will learn a hard lesson when the Judge says something like, “Counsel – don’t even go there. I’m not going to listen to the NyQuil defense.”
Then what’s the plan?
In that sense, as much as effectively handling a PV involves successfully presenting options to the Judge, a lawyer has to have enough self-confidence to make the client understand the realities at issue, as well.
Look, I’m in business to make money, but I’m not going to let someone come in, pay my fee, and think I’m the mouthpiece for some losing strategy or stupid idea that won’t fly. Part of what makes a lawyer good is knowing how to handle the clients every bit as much as the Judges.
We could probe this subject from more angles, and dig even deeper, but as an overview, I’ve covered what I think is important: the idea that most PV’s are the result of someone screwing up, that you don’t want a lawyer from the other side of the state who’s meeting your Judge for the first time, that your lawyer better stand out from the herd in terms of charisma, persuasiveness and general speaking ability, and that your lawyer has to take the time to learn about you, your case, and your violation, rather than just take your money so he or she can show up in court and tell the Judge that you’re sorry and it won’t happen again.
If you are facing a probation violation anywhere in Oakland, Macomb or Wayne County, and are looking to hire a lawyer, do your homework. Take the time and read articles like this. When you’re done reading around, then check around. All of my consultations are confidential and done over the phone, right when you call. You can reach my office Monday through Friday, from 8:30 a.m. until 5:00 p.m., at (586) 465-1980 or 586-465-1980. We’re really friendly people and we’re here to help.