As Michigan criminal and DUI lawyers, my team and I know full-well that being placed on probation is a break from being put or kept in jail. In the real world, however, some people lose sight of this fact and go on to1` either do something they’re not supposed to, or DON’T do something they’re required to do while on probation. Then, they wind up facing a probation violation (PV). When that happens, the only thing that matters is, to put it bluntly, saving the client’s a$$.
That may sound raw, but the cold truth is that anyone who has to go back before the Judge for a probation violation (PV) is in real trouble. Often, though, the situation can be managed. There are, of course, many different ways one’s probation can be violated, and some are worse than others. Nevertheless, anyone who violates even a single term of probation has put themselves at a very real risk of being sent to jail. At this point, the only thing that matters is NOT getting locked up. To do that, the lawyer must convince the Judge to give his or her client yet another break.
In practice, very few probation violations are entirely without merit, meaning that the probation officer got it all wrong To be sure, we’ve handled plenty where we have been able to show that our client actually DID what he or she was supposed to (like attend a class), or did NOT do something forbidden (like when there is an error, or mix-up involving breath or urine test results). However, the simple fact is that these situations are far less common than those wherein the person on probation simply screwed up in some way.
In other words, most probation violation (PV) cases are not the result of an error committed by the probation department.
In fact, the most common violation of probation – by far – involves a person testing positive for alcohol despite a probation term requiring him or her to refrain from drinking. Missing a breath or urine test runs a close second. Behind those two things, there is a whole slew of other typical violations, including thing like testing positive for drugs, missing required classes, and getting charged with a new criminal offense.
If there was ever a situation where a person needs a lawyer to “get me out of it,” it’s a probation violation (PV). Aside from that small minority of probation violation (PV) cases where the probation department really did get something wrong, one has to think realistically about the big picture:
• A person was given a break and either not locked up or let out of jail after serving some (but not all) of the time he or she could have gotten.
• In lieu of that, he or she is given rules to follow, while on probation, as a condition to remain free.
• Then, in direct violation of those rules, he or she either does something specifically forbidden, or DOESN’T do something that was required.
Seriously, in terms of legal trouble, this is like a super-concentrated bucket of suck. This is why it’s entirely accurate to say that handling a probation violation (PV) is all about saving the client’s a$$. There certainly aren’t going to be any awards, compliments, or medals given for screwing up. And the Judge, for his or her part, now knows that whatever he or she ordered, and whatever he or she said – it didn’t work.
The thinking naturally becomes that the warnings and punishments handed out the first time around weren’t strong enough to make the person follow the rules.
So what’s to be done? Obviously, any notion of going “easier” on the person doesn’t make much sense. Basic human instinct is to next try something stronger. Anyone who avoided jail at his or her original sentencing must know they’re facing it now.
It’s at this point that a lawyer will either step up and save the client’s behind – or not.
And whatever else, NOBODY wants to have the “or not” attorney. The main focus here is to keep the person from getting incarcerated. The lawyer must therefore find a way to convince the Judge that yet another break is warranted, and reassure him or her that the person will comply.
That’s easy to say, because those are just words. In court, however, those words have to carry some weight. They have to be backed by action, or at least a demonstrable commitment to action. As the old saying goes, “actions speak louder than words.” This means the lawyer has to help his or her client do whatever is necessary so that the Judge WILL believe that the person “gets it,” won’t screw up again, and therefore deserves that additional break.
How that is best done depends on a boatload of factors, including the original charge (was it a DUI, or some other criminal offense?), and what the person did (or did not do) that caused the probation violation (PV).
The idea that a lawyer has to work with the client and examine all the factors that go into a probation violation is more than just a bunch of promotional marketing hype. If a person is facing a probation violation (PV) for drinking, then he or she needs to really examine their relationship to alcohol. As many therapists will point out, “anything that causes a problem IS a problem.” And if drinking has landed someone in the crosshairs of a potential jail sentence for probation violation (PV), then it has definitely become some kind of problem.
Let’s continue with the notion that a person got caught drinking while on probation:
Properly advising a person what to do will depend on a lot of things. Here are 5 (there can be many more) that must be considered in every probation violation (PV) case:
• The person’s prior record (if any, or none at all).
• The original charge; was it something related to drinking, like a drunk driving offense?
• The nature of the violation itself; did the person miss a test, produce a positive result, or get arrested for something new while drinking?
• His or her personal preferences. Specifically, would he or she do well in AA (or not), or better in group counseling, or, if not, then individual counseling?
• What are the reasonably available options that he or she has to do something both helpful and proactive?
For example, a person who works nights probably can’t do any kind of substance abuse counseling that starts after the regular workday.
Any discussion or suggestion that he or she get involved in the AA program brings a whole slew of considerations as well as misconceptions to the table. The simple fact is that while some people do love and thrive in AA, most do NOT.
In fact, most people hate AA.
Simplistic advice like “start going to AA” is bad advice, and can, in some cases, delay or prevent a person from getting the kind of help that will actually work for him or her.
It is a fact that some people prefer and do better by counseling in groups, while others are more comfortable doing it individually.
These things, meaning what a person should do to help themselves out of a probation violation (PV) situation, must be examined carefully – and honestly.
To be sure, this can never happen if someone takes a court-appointed lawyer and meets with him or her in the hallway of the court on the date of his or her hearing. Nor, for that matter, will it happen if the person hires some lawyer who doesn’t take the time to carefully explore all the facts and circumstances of the violation, including everything we’ve mentioned above.
As lawyers, my team and I know that we have to do a lot more than just show up in court and tell the Judge that the client is sorry, and that he or she says it won’t happen again. We need to have a plan, then get the Judge’s attention. As a young lawyer, I learned the importance of that early on. Too many lawyers stand before the court and drone on about how the client knows he or she made a mistake and wants to move on. That’s kind of drivel is NOT going to hold a Judge’s attention.
In fact, many times, while some lawyer is blabbing on that way, the Judge is looking down and already filling out the sentencing form.
That’s never good.
Beyond just grabbing the Judge’s interest, we must then persuade him or her to do something other than what’s most obvious, which is to lock the person up for a while. Instead, the Judge must be convinced that there really IS a useful measure other than hammering the person with jail time. That’s why it’s so important to have a plan. Showing up in court without one amounts to flying blind and hoping to get lucky.
Getting lucky should NEVER be part of anyone’s strategy for handling a probation violation (PV) case. As with everything in life, good work is the key to good results. There is no substitute for hard work and attention to the fundamentals.
Key among the fundamentals is that a person should always be a savvy consumer. If you’re facing a probation violation (PV), take the time to read around. Pay attention to how different lawyers break down probation violation (PV) cases, and how they explain their various approaches to them.
This blog is a great place to start. To-date, I have written and published over 1375 articles in the various sections. The blog is fully searchable, and is updated weekly with a new, original article. The reader can find probation violation cases addressed in the criminal section, the DUI section, and the probation section, respectively.
When you’ve done enough reading, start checking around. If your case is pending in the Greater-Detroit area, meaning anywhere in Wayne, Oakland, Macomb, or the immediate surrounding counties, make sure you give our firm a ring. You can learn a lot by speaking with a live person, and that’s exactly what you’ll get when you call our office.
All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions and explain things. We NEVER use any pressure tactics to lure someone in, and genuinely encourage everyone to check around and compare lawyers. In that regard, we’ll always invite you to call us back and be happy to compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m., at 248-986-9700 or 586-465-1980.