Author – Genevieve L. Taylor
What you can expect at a Macomb County Probation Violation.
In Michigan, a person my be placed on Macomb County probation after a conviction. The Michigan Legislature has stated that “the granting of probation is a matter of grace conferring no vested right to its continuance.” Essentially, the law states that a defendant is not entitled to probation as a matter of right. The court has the ability to revoke a probationary term if the probationer violates any of the terms set by the court. Revocation of Probation Statute. This article describes what you can expect from a Macomb County probation violation. (Although the article applies to probation violations in any county).
Violations of Macomb County Probation
As stated, after a conviction the court may place the defendant on probation. When a person is placed on probation, the court can impose several conditions that must be met. This link will direct to the Michigan Probation Conditions.
How is Probation Violated?
Generally, a Macomb County probation violation occurs when a probationer ignores, avoids, refuses, or otherwise breaks the terms or conditions of probation at any time during the supervision period. Probation can run from to months to years. Specifically, a person may be placed on probation for a maximum of 2 years for a misdemeanor and 5 years for a felony.
The terms of probation may be violated in different ways. Circumstances that may lead to a probation violation include:
* Not appearing during a scheduled court appearance on a set date and time;
* Not reporting to your probation officer at the scheduled time or place;
* Absconding from probation;
* Not paying the required fines and costs associated with the original offense;
* Not paying restitution (to victims) as ordered by a court;
* Contact with known felons;
* Contact with persons listed in a no contact order;
* Traveling out of state without the permission of your probation officer or the court;
* Not completing counseling, education, or treatment as required under the terms of probation;
* Not maintain employment or attending school as ordered;
* Not supplying documents as required by order of the court;
* Possessing, using, or selling illegal drugs;
* Positive, missed, or diluted drug or alcohol tests;
* Having police contact; and
* Committing other crimes and/or getting arrested;
A Macomb County probation violation is an offense that occurs when a probationer has committed any of the above.
The consequences associated with probation violation usually depend on a variety of factors, such as the nature and seriousness of the violation, whether you have any prior violations, and whether there are other circumstances that may lessen (or worsen) the severity of the situation. A probation violation may result in significant penalties, such as heavy fines, extended probation, jail time, or more.
We want to draw your attention to the following language contained in the probation statute: “If a probation order is revoked, the court may sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made.” Revocation of probation statute The language shows that the consequences of probation violation can be very serious. The language is important to consider. For instance, if you received a probation sentence but could have received prison, after a probation violation the court can sentence you to prison.
Take note of the following example. I represented a defendant charged with criminal sexual conduct first-degree. The facts showed that a girl had called our client by accident. However, she kept calling him. Eventually they “got together.” She lied about her age. The age difference was 2 years. I negotiated the case where the charges were reduced and the client received HYTA with probation. He avoided the probation department’s recommendation for prison.
Shortly into the term of probation he received a violation. At stake: a prison sentence since he could be sentenced to prison based on the language the court has the ability to “sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made.”
So, since he could have originally been sentenced to prison, he was facing that punishment if the court chose to do so. At the hearing, I argued successfully that the client should retain his HYTA status, keeping the offense off of his record, and not go to prison. The court agreed.
The story does not end there. Near the end of the 3 year term of probation (maximum for HYTA probation) the client violated again. The same prison sentence could have been imposed. This time we faced a serious dilemma. A person placed on HYTA probation can only serve HYTA for a maximum of three years. We were at the end of the three year term. The court wanted to give the client a year in jail this time. But, because of the HYTA restrictions, the court was placed in the position that HYTA must be revoked, the offense must be placed on his record, and he must go to prison because the HYTA clock had run out. There were only 60 days left in the HYTA time limit.
I devised a plan, that if accepted by the court, would allow the client to keep his HYTA status and the offense off of his record. The client had violated probation by picking up a drinking and driving offense. When I went to the district court, I told the judge that the client was going to plead guilty and please place him jail for the maximum one year. The judge looked at me as if I had lost my mind. The judge called me to the bench. I explained that the circuit court wanted to give the client a year in jail but could not do so because the 3 year HYTA limit had been reached. I explained that the judge needed to give the client a year in jail so the circuit court can be satisfied the client received the year in jail. The circuit court judge would let him keep his HYTA if he spent a year in jail. The district court judge agreed to my plan and the client received a year in jail.
The circuit judge accepted the plan that I had developed. So, after 2 probation violations, the client avoided a CSC conviction, stayed off of he sex offender list, kept his HYTA, avoided prison, and is now successful and matured. Yes, the year in jail is not something a person wants to do but when you consider the alternative, I saved the client’s life and future.
As you can see from this example, a probation violation can have drastic consequences on a person’s freedom and criminal history. Creative lawyering and a persuasive argument protected our client from his probation violations.
What is the probation violation process?
The method of hearing and presentation of a probation violation are within the court’s discretion. However, the probationer is entitled to a written copy of the probation violation report explaining how he or she violated probation. Also, the probationer is entitled to a hearing.
When a person violates probation, the process usually starts with the probation officer. The probation officer does have discretion. Probation officers can issue a warning or require that you to appear in court for a probation violation hearing. In deciding which path to choose, a probation officer may consider the severity of the violation, past probation violations (if any) and other considerations. If you are requested to appear in court to answer of the violation, you should always have an experienced criminal defense lawyer with you because even at an arraignment incarceration is a possibility. As the example cited above showed, creative and persuasive lawyering kept the client out of prison and a very serious charge off of his record.
Probation Violation Hearing Scheduled – Now What?
During a probation hearing, the judge will hear your case to consider whether you violated any terms or conditions of your probation. The prosecuting attorney has the burden of proving by a “preponderance of the evidence” that the violation occurred (more likely than not, that is, greater than 50%). Your lawyer will have the opportunity to cross examine any witnesses that may appear.
Do I have to go to a Hearing for my Probation Violation?
No, you do not have to have a probation violation hearing. Prior to a Macomb County probation violation hearing your attorney will have a chance to see the sentence recommendations. If the recommendation does not include jail or revoking a special status like HYTA, “7411” etc. then you can forgo a hearing.
Even if the recommendation if for jail, you can still choose to forgo the hearing as well. If the probation violation allegations are true, it would not be wise to waste the court’s time. Please note the following example.
A typical condition of your probation is to avoid new criminal charges. If you received a violation because you have been charged with a crime, would it make any sense to go to a hearing? The answer is clearly: no. You would be better off convincing the judge to not accept the recommendations from the probation officer. Judges are willing to hear arguments on your behalf and they do not always accept the recommendations.
So, if the question is not whether you are guilty of the probation violation, but what are the consequences going to be, you have the option to waive your right to a contested hearing and plead guilty to the violation. Having a expert criminal defense lawyer at your side to help you make this decision is essential.
An experienced criminal defense lawyer can advise you if pleading guilty without a hearing will benefit you in the long run. A good criminal lawyer will be able to advise you how to proceed with your violation and represent your best interests at plea and sentencing.
What happens at Sentencing?
If you plea or are found guilty of a Macomb County probation violation, sentencing will occur shortly thereafter. As the statue cited above indicates,”If a probation order is revoked, the court may sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made.” In our experience, most courts do not go to that extreme at a first probation violation. It does, however, depend on the facts of the case and nature of the violation.
Instead of going to the extreme, courts may extend your probation, impose additional probation terms, order you serve a brief time in jail, or revoke your probation altogether and require you to be incarcerated for any remaining time of your original sentence. Factors a judge may consider in determining your sentence may include the nature and manner of the offense and whether the offender was a “first-time” or “repeat” offender, among other considerations.
Legal Rights at a Probation Hearing
The rules of evidence are “relaxed” at a probation violation hearing. This means that evidence not usually admitted in a trial can be admitted in a probation violation hearing.
If you are facing a Macomb County probation violation, it is important to know your legal rights to minimize or avoid additional penalties and consequences. Generally, you have the right to:
- (1) receive written notice of the claimed violations against you – this is normally in the form of a bench warrant,
- (2) be heard by a neutral judge in court,
- (3) have an attorney represent you and if you can’t afford an attorney have an attorney appointed to you, and
- (4) to present evidence and witnesses to support your case, or refute evidence against you.
- A good criminal defense lawyer can help you understand the rights available to you at a probation hearing and possible sentencing.
Penalties and Punishment for Violating Probation
As this article has discussed, judges have broad discretion to impose jail sentences or other penalties for probation violations, subject to maximum penalties and/or sentencing guidelines. Some of the lesser penalties for violating your probation include extending probation, having to perform community service, attend rehabilitation programs, “boot camp” or other programs to make sure you learn to conform your conduct to the law. The court really wants to know if your behavior can be rehabilitated.
Under Advisement, HYTA, “7411” and the Importance of a Skilled Criminal Defense Lawyer
Was your original plea taken under the Holmes Youthful Trainee Act (HYTA), MCL 333.7411, MCL 769.4a, ‘under advisement,’ or some other ‘deferral?’ This is one of the most important reasons to have a skilled defense lawyer. You want to preserve those special status sentences.
A skilled criminal defense lawyer knows how important it is to keep charges off of your criminal record. The status pleas allow an individual to have either a reduced plea or a dismissal at the end of a probationary term. Some judges want to revoke this status when there is a probation violation. A good criminal defense lawyer will work with probation and the court to not only mitigate your possible penalties, but will explain to the judge why it is so important for you to continue to maintain your under advisement status.
An Experienced Criminal Defense Lawyer can Help You.
We do understand that some defendants have been falsely accused of probation violations. In some cases, the violation is simply not true, and an experienced lawyer will help his or her client prove that he or she did not violate the terms of probation.
Here is a real world example. We very recently represented a juvenile who had been placed on probation in the juvenile court. She had to drug test at JAMS. JAMS reported that the client tested positive for morphine. The client maintained that she had never used morphine. In fact the client maintained that the JAMS agent had kept calling her by the wrong name. The implication was the the JAMS employee had mixed our client’s sample with someone else’s sample.
We had requested an adjournment so we could arrange an independent drug test. The court agreed. We had located a facility where the client could get a hair follicle test done. A hair follicle test was important because the test can go back 6 months in time to see what, if any, substances a person had used. I received the results – all negative for any substance including morphine. The court dismissed the violation and closed out the client’s case successfully.
So, again, you can see how an experienced attorney can help you with a probation defense. We knew that we had alternatives to fight the violation.
At a probation violation hearing, you need a lawyer who can persuasively and creatively argue on your behalf. I have given you some examples of how creativity helped our clients avoid drastic consequences. Your attorney’s persuasiveness and creativity can be the difference between jail or no jail. As stated, each case is different and does depend on the facts.
One thing is certain, for a Macomb County probation violation, you should have an attorney who has been in front of your particular judge many times. Your attorney will have established a good reputation and relationship with the court. This relationship benefits you because your attorney will know what to expect.
A probation violation is a serious offense that occurs when a person avoids or violates any of the terms or conditions of his or her probation. When those terms are broken, the person serving probation faces severe consequences and penalties, including the possibility of additional probation terms, significant fines, revoked probation or, more significantly, jail time.
An experienced attorney can help you win a probation violation hearing or help reduce the sentence that you receive. Also, an experienced attorney will persuasively argue that jail is not always the answer to a problem and neither is revoking a special status.
Learn About Your Options with a Free Case Evaluation
Although this article used Macomb County as an example for probation violations, the article applies to violations in any county. We have successfully represented clients in Macomb, Oakland, Wayne and Saint Clair Counties.
You should set up an appointment to talk to your potential attorney to see how he or she will handle your Macomb County Probation Violation. If you talk to the “right” attorney he or she will be able to explain all of your options even give you examples of how your particular judge handled probation violations similar to your’s in the past.
Your lawyer’s persuasiveness and creativity are critical in a probation violation hearing. The examples we have given you in this article explain how we have handled probation violations that could have had drastic consequences.
You can call our office 24/7-365 to discuss your Macomb County probation violation. We have weekend and evening appointment availability.
Any consultation either by phone or office consultation is free.
We look forward to hearing from you.
JAMES E. CZARNECKI II (586) 718-2345
GENEVIEVE L. TAYLOR (586) 350-6044