Author – James E. Czarnecki
Defending probation violations
As a Macomb County criminal defense attorney, our firm has represented over a thousand clients charged with probation violations. This article explains how an experienced Macomb County criminal defense attorney can defend you at a probation violation hearing.
A sentence of probation is a creation of the Michigan Legislature. You do not have a right to probation. For your reference here is a link to the Michigan Probation Statute. Since a probation violation can result in serious consequences, your attorney should know the various ways to defend you.
One of the first things your attorney should do in a probation violation is read the original judgment of sentence. Specifically your attorney should determine the conditions of probation and if the court or probation officer adequately explained the conditions of probation.
The following defenses and strategies have proven successful in a probation violation hearing.
- What were the conditions of probation? Did the defendant get a copy of his or her requirements?
- Review the probation violation report—The report must contain allegations of violations that were imposed as a condition of the sentence.
- Your attorney should look at the restitution issues. If the obligation to pay restitution was joint and several, have the co-defendants paid? Is the amount of restitution accurate and verified by probation? If not, your attorney should file for a restitution hearing.
- If the violation is for nonpayment of fines and costs your Macomb County defense attorney should introduce specific information about your economic situation including income from work, rent, child support, bills, rent, and other obligations. Your attorney should let the court know you have made a good faith effort to pay but cannot do so at the amount set by the court because of financial problems.
- The Michigan Supreme Court has ordered that a person cannot be sentenced to jail for nonpayment of fines and costs unless a hearing is held. Specifically, the court ordered:
Determination of Ability to Pay. A juvenile and/or parent shall not be detained or incarcerated for the nonpayment of court-ordered financial obligations as ordered by the court, unless the court determines that the juvenile and/or parent has the resources to pay and has not made a good-faith effort to do so. Supreme Court Order
Take note: The court that sentenced you to probation must make findings on the record that you have not made a good faith effort to pay. The court can always modify your financial obligations if you are having a difficult time. If you are having financial problems it is advised that you immediately bring it to the attention of the court. Do not wait for a violation to be issued.
7. Absconding. If the allegation is that you failed to report to probation as directed,is there a valid excuse?
- Does the probation officer know for a fact that you left the jurisdiction?
- Were you in custody in another jail outside the county?
- Were you in the hospital?
- If you have truly “skipped out” on probation you should hire an attorney and voluntarily turn yourself in to the court. When you are accompanied by an attorney and voluntarily turned yourself in, the court respects the fact that you did not have to be arrested. If you have to be arraigned on the warrant, the court is more likely to grant a personal bond because you had voluntarily appeared with counsel. In that sense, the court might be receptive to sentencing alternatives once you take responsibility for absconding. Also, depending on the time since you absconded, there may alternatives that could be available like weekend jail, work release, tether, etc. It is always better to resolve the matter than it is to avoid it altogether.
8. If the probation officer is recommending a jail sentence for the violation, your Macomb County criminal defense attorney can offer the court creative alternatives to recommendations for incarceration. The court has the power to modify your probation.
9. If your violation is for a positive drug test, and you did in fact use a substance, it helps if your Macomb County criminal defense attorney knows the community resources in the county. If your attorney is going to recommend a counseling program instead of incarceration to the court, he or she better be prepared to have adequate information to support the program.
You certainly do not want the probation officer’s recommendation for “revocation”to be the only argument the judge hears. Your Macomb County criminal defense attorney should investigate all of the alternatives to defend you.
If you have a violation for a positive drug test but have a valid prescription for the substance, the court may accept that as a reason to dismiss the violation. Your attorney should always bring these records to the court’s attention.
Oftentimes, people are issued probation violations for a false positive test for substances, illegal or legal, that were prohibited by the terms of probation. Challenging a positive test requires your reliance on an experienced Macomb County criminal defense attorney who understands the testing process.
It is important that your attorney be familiar with the various testing procedures and what can go wrong with them. A knowledgeable and experienced attorney is a powerful defense against a false positive test. Probation officer and their testing agents usually have very little experience and knowledge regarding the “science” behind the testing procedures. In that sense, a well-equipped attorney can convince the court that the facility made a mistake if attorney is knowledgeable.
In one instance, we represented a client who was charged with violating probation because probation alleged he submitted a urine sample that he brought with him to the testing facility. The client claimed he did not. The testing agent claimed that the sample was fraudulent because it was “too cold” when she tested it. At the probation violation hearing, the testing agent claimed that she determined the sample’s temperature by holding on her wrist. Unbelievable as it is, that is true. She did not use a thermometer or any other scientific instrument to determine the sample’s temperature. After the hearing, the court dismissed the violation.
In another instance, our client had received a violation because probation alleged that she tested positive for morphine. The probation officer relied on a report from JAMS. To make matters worse, the probation officer wanted the offense put on our client’s record. Our client asserted that she had never used morphine. Our office requested an adjournment so we could obtain an independent test. Since too much time had gone by to do another urine test, I suggested our client submit to a hair follicle test since it can go back 6 months. When I got the results, it showed unequivocally that our client had not used any substance. The court dismissed the violation and the offense stayed off of our client’s record.
There are many other examples where we successfully challenged the results of a false positive test. It is important to use an experienced attorney to help determine if you have a valid defense.
What not to do
Although I have spent the majority of this article discussing what an attorney should do, I want to discuss what an experienced attorney should advise you not to do. Likewise, the attorney should not pursue a specific defense. An experienced attorney will caution you to not claim that a positive test for alcohol is the result of mouthwash or NyQuil. This defense almost never works.
First, the science behind this claim does not support the defense. For example, if you test positive at .05 in the morning, it would be impossible for the reading to be the result of Nyquil. Nyquil has about 25% alcohol. Your body eliminates alcohol at a rate of .02 per hour. So, in order to test at a .05, you would have to had consumed several bottles of Nyquil. Here is why. If you take the recommended dose, or even another dose, at an elimination rate of .02 per hour, the alcohol will be gone several hours later. Moreover, the court will not believe that you drank several bottles of Nyquil.
Moreover, if you drank it in the morning and tested, you would still not reach the high of an alcohol reading. Also, if you tell the court that you drank Nyquil before testing, or some other substance containing alcohol, the court will still be irritated. The probation department often tells people to not use substances that could result in a positive test, and that includes Nyquil.
The court has heard the Nyquil defense so many times that even if you are telling the truth the court will not believe you. If you truly consumed alcohol, it is much better if you tell the truth because oftentimes, “the cover-up is worse than the crime.” It is much better if your attorney explains that you had a relapse or are struggling with substance abuse addiction.
10. Sometimes the best defense is NO defense. The reality is that many probationers intentionally abscond or use a substance. Oftentimes, the best way to deal with a violation is to accept responsibility for the violation. Do not make excuses. Courts respect defendants when they admit responsibility. Accepting responsibility is much better than going to a hearing and losing when the evidence is firmly against you.
When a person is completely honest and takes full responsibility for the probation violation the court can see that, even though you violated, you can still act responsibly. The truth is a powerful defense. The court will appreciate you are not trying to play games. Note that admitting responsibility should also include a course of action. You must take whatever corrective measures are necessary to show the court that you will do what it takes to prevent a further violation.
For example, if you are on probation for a drinking and driving offense, you will not be able to consume alcohol. If you test positive for alcohol the court will appreciate your truthfulness. More importantly, if you are struggling with addiction, the court will take note that you signed up for an inpatient treatment program, started attending AA, signed up for outpatient counseling, etc. You want to show the court that you are being proactive in your recovery.
Keeping a conviction off of your record
Most cases are resolved by plea agreement. A plea agreement can keep a conviction off of your criminal history and/or your driving record, if you successfully complete the terms of probation.
Simply put, if you comply with the terms of your probation, your case gets dismissed. Accordingly, your Macomb County criminal defense attorney should do everything possible to keep the crime off of your record. A conviction can affect your life and career aspirations. Your experienced attorney must persuasively show the court that preserving 333.7411, HYTA, 771.1, 769.4a is the best outcome.
Important note: Your Macomb County criminal defense attorney should be aware that the terms of your probation should be increased, and all of the community resources should be exhausted, before the court turns to the ultimate sanction of revocation of a special status and incarceration.
An experienced Macomb County Criminal Defense Attorney is your best defense and an investment in your future.
Since we practice in Macomb (Oakland, Wayne and Saint Clair) we are familiar with all of the courts. We have been to every district and circuit court in those counties. That is to your benefit.
It helps if your attorney knows what a particular judge will do in a probation violation. That is where your attorney’s experience is critical. Your attorney must know what the judge expects. The key point is this, when you know your audience (the court) and what they expect, the more likely it is is you can give them what they want in words and action.
Probation violations are serious matters. No court likes to have its order violated especially when the court gave you a chance at probation. Because it is likely that a probation officer may recommend revocation of your probation or special status, it is of utmost importance that you be represented by experienced legal counsel.
No probation violation is too small. Even if your violation is for something minor, like the failure to notify the court of your address change, your attorney can help keep you stay in good graces with the court. Having an attorney benefits you because it shows that you are treating the matter seriously.
Contact Us to Discuss Your Probation Violation
The law firm of CZARNECKI & TAYLOR are experienced and knowledgeable Macomb County criminal defense attorneys. We have represented hundreds of people with probation violations. We know what the courts expect. If you have a probation violation we would be happy to discuss your case with you.
All consultations are free.
You can reach us at (586) 718-2345 JAMES E. CZARNECKI II or (586) 350-6044 GENEVIEVE L. TAYLOR.
We serve clients in Macomb, Oakland, Wayne and Saint Clair counties.
We are available 24-7/365.
Weekend and Evening appointment availability.