Michigan Criminal Defense Lawyer Blog
In our roles as Michigan criminal lawyers, we handle a lot of probation violations. Some are for existing clients, while others are for people we didn’t represent at the time of their original case. The most common reasons for a probation violation include things like testing positive for alcohol or drugs, missing tests, or picking up a new case. Sometimes, the people who find themselves facing a PV turn out to be those who seemed the least likely to run into any problems in the first place, but, as the saying goes, “it is what it is.”
Over the course of my 3 decades as a lawyer, I have seen just about every imaginable situation that could wind up as a probation violation. For as unusual as any case may be, most of them are for things mentioned in the preceding paragraph. And although there are some cases where someone is falsely or wrongly accused of violating his or her probation, the vast majority of violations come about because the person simply screwed up. Within the court system, this is actually a good thing, in a certain way, because it means that a certain amount of probation violations are expected.
The easiest way to get a sense of this is to sit in a courtroom on any given day (although, as of this writing, the Coronavirus pandemic has forced many courts to handle cases by video, so that’s not possible right now) and observe how many of the cases on the docket are probation violations. There isn’t a Judge out there who hasn’t also had just about every imaginable probation violation situation arise within his or her caseload. Here’s why that experience can benefit anyone who finds themselves on the wrong end of a PV:
Imagine you are opening a retail franchise of some sort, and as you’re going over expected costs, sales, and earnings, the corporate representative explains that no matter what, you can expect about 3% of the goods you buy to be destroyed, lost, or stolen.
You are told that you simply cannot avoid having a certain amount of stuff that gets taken by employees, winds up damaged somehow, or otherwise pilfered by customers, and this is so constant and predictable that it’s figured into the overall equation of supplies to order, as well as usual costs and earnings.
After a while, you learn to live with this because that’s just how things work.
The same holds true for probation violations in every court, no matter how lenient or tough the Judge.
When people do things like drink alcohol in violation of a probation order, they always figure they’re not going to get caught, or at least figure the odds are in their favor of not getting caught. While it’s true that sometimes those who violate seemed unlikely to do so, every Judge (and defense lawyer) is long past being surprised by just about anyone or anything.
However, that doesn’t mean that Judges don’t get pissed when someone who was given a break goes out a screws it up. Let’s go back to that franchise example: it’s one thing to do your monthly accounting and find the expected 3% loss, but it’s quite another to be in your place of business and observe someone stealing your stuff.
Just for the record, in the retail world, this is called “shrinkage,” or “inventory shrinkage,” and it usually accounts for about 1.44 of inventory. I have used a round number of 3% in our example to keep it simple. While I don’t have a specific percentage of probationers who violate, I know its WAY above 3%, and I wouldn’t be surprised if it’s actually around 10% or so.
I say that because I think of my experience sitting in a courtroom “on any given day.” If a morning criminal docket has 12 to 20 cases, it’s not unusual for at least 3 or 4 of them to be probation violations.
Whatever the actual percentage may be, the simple fact is that most Judges deal with PV cases every day they have a criminal call.
In that sense, they find themselves at the intersection of “expected” and “pissed.”
Turn the tables for moment: how would you feel if you had given someone a break, and, instead of sending him or her to jail for some criminal case, like a DUI or a DWLS (Driving While License Suspended) charge, you put them on probation, instead, and in doing so, had been very clear that they couldn’t drink alcohol, use drugs, or get in any more trouble, only to have them brought back before you because they got caught for doing exactly what they weren’t supposed to do?
You wouldn’t be happy, that’s for sure.
Remember, though, for as many probation violations as any Judge handles, they also see that the vast majority of people DO NOT violate their probation, and don’t use alcohol or drugs (or at least don’t get caught doing so), and otherwise manage to stay out of trouble and compete whatever else they were ordered to do, like community services, classes, counseling, or the like.
This is the part that anyone facing a violation has to understand: probation is easy.
It may not be convenient, but at the end of the day, in exchange for not getting locked up, being required to remain alcohol and drug free, stay out of further legal trouble, and perhaps do a few other things is a pretty good and simple bargain.
After all, nobody is forced to go on probation. It IS a choice…
Instead of agreeing to it, a person can, at sentencing, simply tell the Judge to shove it, and make clear that they have no intention of doing anything he or she orders. Then, instead of walking out the front door of the courtroom with the expectation that they’ll comply with the Judge’s orders, they can be taken through the back door, to jail, where they’ll be free of any probationary obligations whatsoever after serving their jail sentence.
If that sounds harsh, then go back to putting yourself in the Judge’s shoes.
And to the reader, I’d point out that if any lawyer you’re considering doesn’t talk this frankly about probation violations, then he or she is missing the point and not likely to be of much help.
The way to handle a probation violation is to first be honest about the violation itself: did a person drink, use drugs, get in more trouble, or fail to do something required?
If a person has missed a test or otherwise not done something they were required to do, is there a good explanation for it? Sometimes, people do miss a test for a good reason, but then take a make-up test promptly thereafter to show that they didn’t skip the original test to try and avoid what would have otherwise been a positive result.
When a person has slipped up and gotten caught drinking, then the first thing to do is to NOT use a stupid defense. I have written about this in the past, but about the worst, most un-believed story offered for a positive alcohol test is that someone has used cold medicine.
In fact, it’s so legendary for being a sad excuse that it even has its own name: “The NyQuil Defense.”
And it won’t fly.
We’ll stop here, and continue our discussion of what to do when you get a probation violation in part 2.