Michigan Criminal Defense Lawyer Blog
As a Michigan DUI Lawyer who prides himself on keeping his Clients out of Jail, dealing with “Probation,” in virtually every sense of the word, is an everyday thing for me. In many of my other Drunk Driving blog articles, and within the various DUI sections of my website, I examine the rather critical and important role of the Pre-Sentence Investigation (PSI) process carried out by a Court’s Probation Department, including the vital part that the legally required alcohol assessment test plays in the ultimate outcome of any DUI case. As I have noted, the PSI, and alcohol assessment test that is part of it, determines, more than anything else, what happens to a person as a result of DUI.
This article will shift the focus from affecting the outcome of the PSI process to the very outcome, itself. We’ll look at what being “on Probation” really means, how the conditions and terms of Probation are decided, and how that is different from Court to Court. We’ll cover this subject in 3 installments in order to really understand Probation, and to make sense of it.
At its simplest, Probation is an alternative to Jail. A person is put on Probation with the understanding that they will follow the rules (whatever those rules might be) set out by the Judge, at Sentencing, or else get to Jail for Violating Probation. Beyond this rather simple instruction to look at the obvious, written instructions, we must also read “between the lines” in order to get a complete picture of what being on Probation really means.
Although it is an alternative to Jail, Probation can be handed out along with Jail. The maximum legal penalty in a 1st Offense DUI in Michigan is 93 days in Jail, a Fine of up to $500, plus Court costs. Let’s look at a typical 1st Offense case as an example:
If the Dan the Driver gets a 1st Offense DUI, and the Judge sends him to Jail for 93 days, he or she cannot put Dan on Probation. Dan will have “maxed out” his Sentence, and therefore, upon his release, not be subject to any further punishment by the Court. The Judge can also elect to NOT send Dan to Jail, and put him on Probation for a year, or two, with the understanding that if he screws up anywhere along the way, he can be sent to Jail for any period of time up to the whole 93 days in Jail.
A less common, but perfectly legal option is to send Dan to Jail for some period less than the full 93 possible days, and put him on Probation, with the understanding that if he screws that up, he can be sent back to Jail to serve any part of the un-served 93 days. Thus, if Dan is sent to Jail for 21 days, and then stuck on Probation for a year, there are 72 un-served day of Jail that the Judge still has “in the bank” that he or she can hand out, if Dave messes up somehow.
For all of that, “Probation” usually means “no Jail.”
Probation essentially comes in two varieties: Reporting, and Non-Reporting. Most Probation is Reporting, meaning that a person must come to the Court and fill out a form asking if, since the time of their last report, they’ve moved, changed employment, or, most important of all, had ANY Police contact. Then, they meet with their Probation Officer.
The most desirable, although far less common kind of Probation is called “Non-Reporting.” Not surprisingly, this form of Probation dispenses with the requirement that the person come in for any meetings with a Probation Officer. Non-Reporting Probation can range from what’s called “write-in,” meaning a person must send a periodic written report (usually, the same form they’d fill out if they actually reported in person) to their Probation Officer, to “call-in,” meaning they must either call and speak with, or at least leave a voice mail message for their Probation Officer.
Sometimes, if a person does a really good job at their PSI, and the stars are otherwise in alignment, they can be placed on a term of Non-Reporting Probation that requires them to do nothing more than just stay out of trouble, and perhaps complete something Ordered by the Judge, without the need to have any contact with the Probation Department.
Whatever type of Probation may be granted, a person must fulfill their obligations to the Court, and Probation is a means to insure and monitor that they do that. Even in the most unstructured, least demanding form of Non-Reporting Probation, a Probation Officer will eventually run a person’s Criminal and Driving Record to see if they have been Arrested or charged with a new Offense. Similarly, if the Judge has Ordered that a person complete or do something, verification that they have complied with any such mandate will be done by the Probation Department. If the person has done what they were supposed to have done, and has otherwise not gotten into any more trouble, they’ll be successfully discharged from Probation.
If, for lack of a better term, they “screwed up” anywhere along the way, they’ll be brought back before the Judge and charged with violating their Probation, which is know as a “Probation Violation.”
Probation for a DUI is like any other kind of Probation, be it a probationary period for a new job, or the kind of probationary Driver’s License a person gets from the state, to Probation for any other criminal offense. A person must not get in any trouble, meaning they are not to “screw up” anywhere during the specified period or term of Probation, and must often do, or complete certain other things during that time. If they do what they are supposed to do, and don’t do anything wrong, then they get through the period of Probation, and all is well. If they have problems, well, they have problems…
In a DUI, or any Criminal case, for that matter, Probation in one Court can be very different than Probation in another. And while each Court is different, there is one generalization that holds true in every case: Oakland County is much tougher than either Macomb or Wayne. Because I confine my Practice to the Tri-County area of Metro Detroit, I am intimately familiar with the differences, from profound to subtle, between the three Counties. And for precisely that reason, I have little to no idea how things are done beyond Macomb, Oakland and Wayne Counties.
While Probation can be roughly described as an alternative to Jail, Probation itself is Ordered for a specific “term,” meaning duration or length, and contains certain “conditions,” meaning things a person must do, and others they must refrain from doing. While “Probation” begins as a result of the actual Sentencing, the specific conditions, or requirements of any such Probation can be traced back to an intermediate step in the whole DUI process, called the Pre-Sentence Investigation, or PSI, which occurs before the Sentencing
In various other blog articles, and on my website, I have pointed out that THE most important part of any DUI case is preparing for the whole Pre-Sentence Investigation (PSI) process. By Law, before a person is ever put on Probation, or not, or sent to Jail, or whatever, they must this PSI, which conducted by the Court’s Probation Department. This “process” basically involves a Probation Officer gathering background and biographical information about, and, then interviewing the person, and finally, the administration of a written alcohol assessment test. This test is numerically scored, and how low or high a person scores upon it usually determines, more than any other single factor, what kind of Sentence they will get. I teach my Client how to avoid any unnecessary points on that test, and keep the score as low as it can be.
The end result of the whole PSI process is a formal, written Recommendation from the Probation Department to the Judge, advising the Judge exactly what kind of sentence, meaning what kind of Probationary conditions a person should get. Better Recommendations produce better Sentences. Therefore, a “better” Recommendation is the only kind worth having. It takes work to make this happen, but the alternative is that dreaded “Probation from Hell” that is all the worse when a person realizes that had they hired a better Lawyer and put in the time and effort to do better at this stage, things could have turned out much better.
Given that that Recommendation is pretty much the blueprint for what will happen to a person, I focus my efforts on making sure my Client is expertly prepared for this critical step. That begins right at the first appointment in my Office, which usually lasts about 2 hours, much of which is devoted to this whole subject, particularly the nuances of alcohol assessment testing. That focus on preparation continues with yet another conference with the Client scheduled as close as possible to the day of their actual PSI interview.
In Part 2 of this article, we’ll pick up by seeing how a garden-variety DUI, like that of our aforementioned and imaginary “Dan the Driver” will play out in terms of the kind of Probation he’ll likely get in Macomb, Wayne and Oakland Counties. Then, in part 3, we will move specifically into what being “on Probation” really means, and what a person can expect to be Ordered to do, and not do, as well.