HOW TO DEAL WITH PROBATION
Probation is the most common program used by criminal judges to rehabilitate an individual convicted of a crime. In fact it is the most used program in the criminal justice system. Probation is also called community supervision and roughly one in every 45 people in the United States is under some form of probation. Federal, state and municipal judges across the country use probation as a tool to monitor those who have committed crimes. Part of the goal of probation is not only to monitor the offender but also to protect the community. Probation is a jail alternative. If an offender demonstrates that they cannot obey the terms of probation, jail is usually the punishment. The goal is rehabilitation and not incarceration. See the American Probation and Parole Association Position Statement
Probation means that the person being supervised is held accountable by a probation officer to follow the terms of the probation. Probationary terms typically include refraining from engaging in new criminal conduct, refraining from using drugs and alcohol, and completing court ordered community service and programing such as substance abuse counseling, education and treatment. Because the most likely punishment for violating probation is going to jail the question becomes how to effectively fight an allegation of probation violation.
TESTING POSITIVE FOR A BANNED SUBSTANCE LIKE ALCOHOL OR DRUGS
Testing positive is the most common reason for violation. Fighting chemical drug and alcohol testing requires the use of an attorney or expert who is trained in the analysis of biological samples. There must be specialized knowledge of urine and ETG screening, breath testing, using a gas chromatograph equipped with a mass spectrometer. Specialized testing apparatus like the SCRAM Tether or Soberlink require special proprietary knowledge.
It is important to use an drug possession defense lawyer or expert who’s expertise is unquestioned as the judge will simply believe the probation officer or their testing officials despite the fact they usually have very little experience and knowledge about the science behind the testing.
The secret is to quickly get the judge to understand that the attorney or expert is the smartest person in the courtroom about the subject testing then the judge will want to adopt their findings. Judges are people too and people are always persuaded by the perception or reality that someone really knows what they are talking about.
Also remember that judges hear the same lame excuses over and over again so please do not say that the mouthwash caused a positive breath test or that you tested positive for marijuana because you were around someone that was smoking. Even if those excuses were valid, which they usually are not, they are said so often that they are never believed. Just like “the dog ate my homework” excuse. Don’t bother saying it. It only makes things worse.
COMMITTING A NEW CRIMINAL OFFENSE
The most common term of probation is to refrain from criminal conduct and be free from any new convictions.
Sometimes the nature of the alleged offense, like drunk driving, makes it difficult to argue that there has not been a violation of the court’s probation order. Other offenses require a factual determination. Judge’s typically want to wait until there has been a conviction of the new offense before proceeding on the probation violation. Although a conviction is not always necessary for a judge to proceed, a conviction makes it easier for the violation to be administrated. A judge should not be forcing a probation violation hearing that may require testimony from the offender which could be used against him on the new offense.
FAILURE TO COMPLETE A CLASS OR A PROGRAM
Delay the probation hearings and get it done. You might have to finish the program at a different place because the first one refuses to accept you.
Be creative about the reasons why the class could not be completed. Transportation, family or employment issues if argued properly are sometimes reasonable excuses.
ABSCONDING FROM PROBATION
Offenders sometimes simply stop reporting altogether because they fear that they will be going to jail for a violation. Absconding from probation means the offender has abandoned all responsibilities and has failed to report to the officer, usually for a long time.
A warrant will be out for the offender’s arrest and he eventually must recognize that turning himself in and facing the music is better than being arrested and brought before the court against their will and at a time that is not opportune. When voluntarily turning yourself in you can at least have some control over the timing of the proceedings. Depending on the circumstances and the time since absconding, there are alternatives that will be available like work release programs or weekend jail programs.
There are other jail alternative programs that judges will consider if the offender voluntarily surrenders like WWAM – The Weekday and Weekend Alternative for Misdemeanants Program which is an Oakland County Sheriff Department’s Jail organized community service program.
Often times offenders are simply irresponsible and fail to follow probation orders. Sometimes the best way to deal with it is not make excuses and take responsibility for the mistake. Judges hear excuses every day and most of the time they are not persuasive. When a person is honest and takes responsibility it demonstrates at least a bit of positive character. But admitting fault alone will not suffice. The offender must begin as soon as possible to fix the problem and show that it is not likely to happen again.
For instance, if there was a positive alcohol test was given you know the judge will want to address the perceived alcohol problem. Before being ordered to do so begin a counseling program, or institute a stricter testing protocol like placing a breath alcohol interlock device on your vehicle.
SAVING A CONVICTION ON YOUR RECORD
Many plea agreements require satisfactory completion of probation to keep the conviction off their criminal record. In other words, if probation is completed successfully, the case will be dismissed. Therefore probation violation hearings can affect the rest of your life. It is important to stress to the judge the importance of preserving the ability to dismiss the case. Drug cases (333.7411) and domestic violence cases (769.4A) and youthful offender cases (HYTA) are often subject to these conditions.
KNOW THE JUDGE
A judge has a wide range of options at their discretion when dealing with a probation violation. One judge may give a 5 day sentence when another given the exact same circumstances can give five months. It is very important to know the judge, what they like to hear and see and what they don’t. Some judges like when an offender voluntarily attends AA and another may like substance abuse counseling. Some judges prefer particular programs or non profit organizations in which to participate. The bottom line is the better you know the judge, the better an offender and his attorney can prepare and persuade the judge for a favorable resolution.
Judges have many options to jail when giving a probation violation sentence. In order to avail yourself of these options you must discover what they are. Speak to the probation department about jail alternatives like WWAM, PA 511 and Boot Camp.
HOW TO SERVE A PROBATION SENTENCE WITHOUT HASSLE
When being sentenced to probation it is important to complete court ordered terms as soon as possible. Complete all community service as soon as possible. Pay all fines and costs immediately. Show up to all appointments early, dressed properly and be very respectful. When the probation officer gets to know that you are responsible and a person they do not need to worry about you will get the benefit of their favor in the long run. They have plenty of probationers that cause them problems. If they do not have to worry about you, the probability of non reporting probation in the near future will be increased.
HOW TO GET OFF OF PROBATION EARLY
Some judge’s will always consider an early release from probation and others will not. If your judge will allow it, a written motion should be filed with an oral, in person argument requested. Many people say a letter to the judge is all that is necessary but it is harder for a judge to say no in person. In other words, demand a hearing which is your right and you are more likely to be successful.
Also always try and get a recommendation for early discharge from your probation officer. Shortly before your hearing, ask for their blessing. Ask for the officer’s advice too. What would they suggest that you can do to make it more likely.
Judges are more likely to terminate a probation early if they are convinced that the probation has served its purpose which is to ensure that the wrongful behavior will never happen again. Demonstrate you have learned your lesson by stating how your life has been changed for the better because of the probation experience. Point out how you have been extra diligent on completing the terms of your probation and point out how there have been no problems. If you have more questions regarding probation, contact us to speak to one of our specialized attorneys.
Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer providing high quality legal representation in the area of state and federal criminal defense for 20 years. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case, and is prepared to take on complex legal issues with success. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.
Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He is also an active member of the National Association of Criminal Defense Attorneys and has also graduated from their National Criminal Defense Trial College in Macon, Georgia.
Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012, 2013, 2014, 2019 and 2020 for DUI/DWI and criminal defense by DBusiness Magazine and Hour Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2020 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”