By Attorney James Czarnecki|Czarnecki & Taylor PLLC|OCT 31, 2022
A Macomb County probation violation can be very difficult and quite stressful. If you are currently facing such a situation, you will need to hire an attorney who is well-versed in this type of legal matter immediately. Many factors go into defending against a probation violation, including what occurred leading up to the alleged violation. Probation violations can be complicated, so having legal representation could help avoid the violation or minimize the penalties you may face if convicted.
This article explains how an experienced criminal defense attorney can help you at a probation violation hearing. If you have been charged with a probation violation, it is vital to work with a skilled criminal defense attorney who can help you navigate the complex legal system and ensure that your rights are protected. A criminal defense attorney will assess your case and determine the best action to defend against the charges. Sometimes, this may entail negotiating a plea deal or litigating the matter in a violation hearing.
Since a probation violation can result in severe consequences, your attorney should look into all aspects of your case including:
What were the conditions of probation? Did the defendant get a copy of their requirements? Review the probation violation report. The report must contain allegations of violations imposed as a condition of the sentence.
If you did not receive a copy of the conditions of probation, an attorney might use this as a defense. If you didn’t receive written confirmation of the conditions, then perhaps the court should not hold you responsible for violating probation because you were not aware of them.
There are several factors that will need to be considered when deciding whether this is a valid defense. You may also need to provide evidence that you attempted to contact the court or probation officer about any concerns you had regarding your probation, but never received a response from them.
A probation violation report is a document that provides information on any violations that a person who is currently serving probation has committed. An attorney can compare this report with the conditions of probation. If the violation report contains a condition that is not part of your sentence, you can argue you did not violate the terms of your sentence.
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?
Restitution refers to any financial compensation or other forms of payment that a criminal defendant may be required to provide to their victim as part of a sentence for a crime. Restitution payments can include paying back stolen money, replacing damaged property, or covering other costs incurred as a result of the crime.
Depending on your case, the court may order restitution as part of your sentence. If so, your attorney will need to explore all options to ensure that these restitution payments do not become overly burdensome or impossible for you to pay. This may involve negotiating a payment plan or exploring other alternatives, such as community service.
It is important that you work with an attorney who can also help ensure that the amount of restitution ordered is accurate. If not, your attorney should file for a restitution hearing.
Non-payment of fines and costs.
If the violation is for nonpayment of fines and costs your 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 reasonable faith effort to pay but cannot do so at the amount set by the court because of financial problems.
The Michigan Supreme Court 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
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 change your financial obligations if you are having a difficult time. If you are having financial problems, you should immediately bring them to the attention of the court. Do not wait for a violation to be issued.
Absconding. If the allegation is that you failed to report to probation as directed, is there a valid excuse?
One defense available to individuals who abscond from their probation is arguing that there were legitimate reasons. For instance, you were dealing with a stressful or traumatic personal event that prevented you from complying with your probationary conditions.
Whatever the case, it is important to remember that absconding from your probation may result in serious repercussions, such as jail time and additional fines. It is critical to consult with an experienced criminal defense attorney who can help you explore all potential defenses and protect your rights throughout the legal process. Your attorney can also provide guidance on how to get back on track with your probation so that you do not face further legal consequences for noncompliance.
Positive drug or alcohol test results.
Frequently, courts issue probation violations for a positive drug or alcohol test even though the test is 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 criminal defense attorney who understands the testing process.
A knowledgeable and experienced attorney is a powerful defense against a false positive test. Probation officers and testing agents usually have minimal 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 your violation is for a positive drug test, and you used a substance, it helps if your attorney knows the community resources in the county. If your attorney is going to recommend a counseling program instead of incarceration to the court, they better be prepared to have adequate information to support the program.
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.
In one instance, we represented a client charged with violating probation because probation alleged he submitted a urine sample that he brought to the testing facility. The client claimed he did not. The testing agent contended the sample was fraudulent because it was “too cold” when she tested it. At the probation violation hearing, the testing agent claimed she determined the sample’s temperature by holding the cup 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 a felony offense put on our client’s record. Our client asserted she had never used morphine. To properly defend our client, we requested an adjournment so we could get an independent test. Since too much time had gone by to do another urine test, our team suggested our client submit to a hair follicle test since it can go back six months. When our team got the results, it showed unequivocally that our client had used no 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 essential to use an experienced attorney to help determine if you have a valid defense.
What you should not do at a probation violation hearing.
An experienced attorney will caution you not to claim that the positive alcohol test results from mouthwash or NyQuil. This defense rarely 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 result from Nyquil. Nyquil has about 25% alcohol. Your body eliminates alcohol at a rate of .02 per hour. So, to test at a .05, you would have to have consumed several bottles of Nyquil. 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. The court will not believe that you drank several bottles of Nyquil.
If you drank Nyquil in the morning and tested later in the afternoon, you would still not reach an alcohol reading. 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 tells people to avoid any substances containing alcohol, such as Nyquil.
The court has heard the Nyquil defense so many times that the court will not believe you, even if you are telling the truth. If you genuinely consumed alcohol, it is much better if you tell the truth because frequently, “the cover-up is worse than the crime.” It is much better if your attorney explains you had a relapse or are struggling with substance abuse addiction.
Sometimes, the best defense is NO defense.
The reality is that many probationers intentionally abscond or use a substance. Often, 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 fault. Taking responsibility is much better than going to a hearing and losing when the evidence is firmly against you.
When a person is sincere 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. It would help if you took whatever necessary corrective measures to show the court that you will do what it takes to prevent further violations.
For example, suppose you are on probation for a drinking and driving offense. In that case, you cannot consume alcohol. If you test positive for alcohol, the court will appreciate your truthfulness. If you are struggling with addiction, the court will 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 proactive in your recovery.
Keeping a conviction off of your record
Most cases resolve by plea agreement. A plea agreement can keep a conviction off of your criminal history and your driving record if you complete the terms of probation under a special status. Your attorney should do everything possible to keep the crime off of your record. A conviction can affect your life and career aspirations. Your attorney must persuade the court that preserving 333.7411, HYTA, 771.1, 769.4a is the best outcome.
An experienced Macomb County Criminal Defense Attorney is your best defense.
Since we are in Macomb County, we are familiar with all the local courts. 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 understand what the judge expects. The crucial point is this: when your attorney knows what the court expects, the more likely it is that your attorney can guide you to a favorable outcome.
Probation violations are serious matters. No court likes to have its orders violated, especially when the court gave you a chance at probation. Because a probation officer may likely recommend revocation of your probation or special status, it is of utmost importance that experienced legal counsel represents you.
No probation violation is too small. Even if your violation is for something minor, like failing to notify the court of your address change, your attorney can help keep you in good graces with the court.
Contact Czarnecki & Taylor to discuss your Macomb County probation violation
As a leading law firm specializing in criminal law, we are well equipped to handle probation violation cases. At Czarnecki & Taylor, we have experience handling every type of Michigan criminal charge. Our firm’s impressive track record for success and criminal defense is unequaled for achieving exceptional results for our clients.
Whether you have been accused of violating the terms of your probation or you believe that you were falsely accused, our experienced legal team will work to build a strong case in your defense and protect your rights throughout the legal process.
At Czarnecki & Taylor, we understand how stressful and overwhelming it can be to face accusations of violating the terms of your probation. Our team is committed to helping clients navigate this difficult time by providing them with clear and consistent communication at every step along the way. We know that each case is unique, and we will take the time to review all aspects of your situation carefully and plan a tailored approach to your defense.
When you work with our team, we will leave no strategy unexplored in building a strong case in your defense and advocating for the best possible outcome.
The team at Czarnecki & Taylor is comprised of experienced and knowledgeable Macomb County criminal defense attorneys. We have represented thousands 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.
Call (586) 718-2345 to schedule your free initial consultation. We are available 24/7 and have weekend and evening appointments. Or you can contact us online for a prompt response.