Michigan Criminal Defense Lawyer Blog
A regular part of being Michigan criminal and DUI lawyers is handling probation violations. Although it all means the same thing, the actual term used for this proceeding varies from court to court. In the Metro-Detroit area (Wayne, Oakland, Macomb, and the surrounding counties), it is most often called a probation violation, or “PV.” Some courts use the term “VOP” (violation of probation). Yet others call it a “show cause,” requiring one to appear and “show cause” to the court why he or she shouldn’t be violated.
Whatever the label, if you’re alleged to have violated probation, you need help to get past it and stay out of jail. A probation violation occurs in 1 of 2 ways. The first is that a person does something he or she has been ordered NOT to do. The second occurs when he or she does NOT do something he or she was ordered to do. That sounds straightforward, but it misses a lot of what actually happens to people in real life. Many probation violations occur because a person simply doesn’t comply with the Judge’s orders. However, there are plenty of exceptions to that, as well.
It is a simple fact that some PV’s are unintentional. Others are just plain wrong. Breath and/or urine test results can be inaccurate. Urine samples can get mixed up. Sometimes, as the saying goes, “$hit happens.” Unfortunately, in the context of a probation violation, that “$hit” can be rather deep. We always have to remember that just being on probation is, in and of itself, a break. Probation is always an opportunity to prove one’s self while staying out of jail. It is the alternative to jail. In that sense, a person has to do everything possible to remain in compliance.
If a person doesn’t do that, it leaves the Judge with few choices. In other words, if someone screws up probation, the main alternative is the one they avoided by being put on probation in the first place: getting locked up. In those cases where someone has not actually violated a term of his or her probation order (for example, when a breath or urine test result is wrong), we have to present a solid defense. If, however, a person has either done something forbidden, or not done something he or she was required to do, then we have to shift to damage control.
Major damage control. In those cases, our job is basically to persuade the Judge that the person deserves yet another break. That Judge, for his or her part, isn’t going to be happy that someone disregarded his or her orders, meaning that violator starts out with a handicap. To make this easy to understand, let’s look at one of the most common, real-life examples of a probation violation – a positive test result for alcohol or drugs.
Just about every probation order requires a person to abstain from consuming any alcohol or other drugs. Being ordered to refrain from drinking, or even using recreational marijuana, is part and parcel of being on probation. When a person is sentenced to probation, it’s basically a “deal” whereby he or she is allowed to remain out of jail (or prison) in exchange for agreeing to follow certain orders. A person is, of course, free not to accept those orders. He or she can either refuse to follow them, or, go right out and violate them – and then serve his or her time, instead.
That, however, is not what sane people do. Normal folks agree to abide by the terms of the Judge has laid out, including those that prohibit any alcohol or drug use. When you think about it, the only time this should ever present any trouble is if a person actually has some kind of alcohol and/or substance use problem. If not, then as much as someone may not like, for example, being unable to have a beer, or a glass of wine, they’ll accept that as the price for staying out of jail.
This makes perfect sense in theory, but we’re talking about human beings here. We’re fallible. We make mistakes. If we’re honest, we make a lot of mistakes. I think I’m a reasonably smart guy, but I have to admit, a lot of what I know came from lessons learned the hard way. And while that’s great for life-lessons, it’s not so good when someone’s freedom hangs in the balance while on probation.
When I characterized a positive alcohol test as a “real life” example of a probation violation, I meant it. I could not possibly count the number of people our firm has represented in PV cases for drinking. That’s just our firm. The bigger reality is that you can multiply that by an order of magnitude for any Judge. When it comes to drinking in violation of his or her orders, there isn’t a Judge on the bench who hasn’t heard every excuse and story in the book hundreds of times over.
In fact, there is one excuse so common, and so universally NOT believed, it has its own name: The NyQuil Defense. The bottom line is that if anyone is planning to point to NyQuil for a failed breath test – don’t. I have literally heard Judges tell people “don’t try the NyQuil defense” (thankfully, none of those were our cases).
I point this out because any lawyer who doesn’t warn his or her client out of such a defense is doing him or her a serious disservice. The problem with some lawyers like that is that they they get stuck on the old notion that “the customer is always right.” Others simply can’t afford to lose a potential paying client by explaining the realities of the situation.
Unfortunately, that will simply delay a person having those realities explained to him or her by the Judge. That’s never good…
Even if a person does get caught drinking in violation of his or her probation order, there is MUCH we can do to help. Avoiding jail in a probation violation doesn’t require “beating” the charge. The right strategy will, of course, depend on the particular case and the person on probation. However, with a smart plan, even if someone did screw up, we can most often convince the Judge that he or she deserves another break.
To do that, a lawyer has to be part scientist, part diplomat, and part persuader.
There is an important aspect of probation violation cases that is often overlooked, and that’s the standard of proof. We all know that to convict someone of a crime, the evidence must be “beyond a reasonable doubt.”
That standard doesn’t apply in probation violation proceedings. Instead, to be found guilty of violating any term(s) of probation, all that’s required is what’s called a “preponderance of the evidence.” This basically means the scales of Justice must tip ever so slightly towards the conclusion that the person did, in fact, violate some term of his or her probation order. In numerical terms, that’s like 50.01% guilty versus 49.99% not guilty.
That’s a very low standard. The flip side, however, is also good news. It means that to win a probation violation, a “reasonable doubt” isn’t necessary. Instead, the Judge simply has to be persuaded that it’s more likely the person DIDN’T violate, rather than that he or she did.
If a lawyer can’t do that, and win on the facts, then he or she has to win the Judge’s empathy, and sympathy, as well. No matter how we put it, the bottom line is that if you have to hire a lawyer for a PV, you’re paying him or her to save your a$$. It’s at that moment you need a lawyer who will fight like a bear for you. When it comes down to it, your lawyer either saves you – or not.
Nobody should wind up in the “or not” club. If you’re facing a probation violation and looking for a lawyer, be smart consumer and read around. Pay attention to how lawyers explain this aspect of criminal cases. Note also how they explain their various approaches to it. This blog is a great place to start.
When you’ve done enough reading, start checking around. You can learn a lot by speaking with a live person. If your case is pending here, in the Metro-Detroit area (meaning in the courts of Wayne, Oakland, Macomb, or the surrounding counties), give our office a ring, as well.
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’ll also 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 either 248-986-9700, or 586-465-1980.