{"id":3606,"date":"2016-08-29T16:14:24","date_gmt":"2016-08-29T16:14:24","guid":{"rendered":"https:\/\/wordpress-195849-4032129.cloudwaysapps.com\/probation-violation-in-michigan-what-really-happens-and-what-to-do-part-2\/"},"modified":"2025-01-29T16:44:11","modified_gmt":"2025-01-29T21:44:11","slug":"probation-violation-michigan-really-happens-part-2","status":"publish","type":"post","link":"https:\/\/www.randalawyers.com\/blog\/probation-violation-michigan-really-happens-part-2\/","title":{"rendered":"Understanding Probation Violation Consequences in Michigan \u2013 Part 2"},"content":{"rendered":"

In part 1 of this article about Michigan probation violations<\/a>, specifically in the Detroit-area<\/a> district and circuit courts of Wayne, Oakland<\/a> and Macomb<\/a> Counties, we began examining what happens when a person who is on probation<\/a> for a criminal or DUI case either tests positive<\/a> or misses<\/a> a test altogether.\u00a0 I pointed out that to the Judge, a violation of his or her order to not drink (and\/or not use drugs) by either a positive or missed test can feel like either getting the middle finger from the person to whom a break was given.\u00a0 The only other alternative to \u201cscrew you, Judge,\u201d is that the person is suffering from an overwhelming and irresistible compulsion to drink<\/a> (or smoke weed or whatever).\u00a0 As we noted, however it plays out, a missed or positive test does not look good.\u00a0 I certainly understand that people who do have a drink (and get caught) are not, for the most part, trying to \u201cflip off\u201d the Judge, nor are they caving into cravings of some sort, but rather just want to be normal, like everyone else.\u00a0 An order to not drink, however, must also be seen as a part of one\u2019s punishment for the original offense, and a missed test, even if it is followed by a clean make-up test (or there is a \u201cgood\u201d explanation for missing the test) is a violation of the requirement that a person test when directed, on the schedule ordered, and not one that is \u201cconvenient.\u201d\u00a0 In other words, part of the penalty for a criminal or DUI conviction is that you don’t<\/strong> get to act normal by enjoying an adult beverage.\u00a0 At the end of part 1, we were, figuratively speaking, standing in front of the Judge<\/a> who was wondering if a person tested positive because he or she is hell-bent on NOT following the rules or is otherwise unable to cope with his or her urges to drink (or use drugs).\u00a0 We concluded by pointing out that it\u2019s that very spot where most people really get a sense of how bad their situation looks, and asking what can be said or done to make it better.<\/p>\n

\"Plan-or-GrowthThere is no simple, one-size-fits-all answer to that question.\u00a0 And to be perfectly honest, some Judges<\/a> are \u201ceasier\u201d than others.\u00a0 You can call them more forgiving, lenient or understanding, but the plain fact is that there are some Judges who won\u2019t really have much interest in your side of things if you test positive, and I can think of at least one Judge who will have about ZERO interest in anything you have to say once you\u2019re caught drinking or smoking weed while on probation.\u00a0 In that sense, as you look for a lawyer<\/a>, you need to find one who really knows the Judge or Judges in the court where your violation is pending.\u00a0 For example, that Judge who would probably have the least interest in anything you have to say is also (not surprisingly) rather short on patience, so it would not be a good tactic to go in there with an attorney<\/a> who will drone on and on about kinds of stuff she DOESN\u2019T want to hear.\u00a0 Any chance to change her mind<\/a> needs to come right out of the gate, not after torturing her by babbling on and on\u2026.<\/p>\n

As we noted above, the goal in a probation violation case is to convince the Judge that you neither callously disregarded his or her orders to not drink (or use anything else) nor<\/span> do you have an underlying problem with urges too strong to resist.\u00a0 Of course, everyone\u2019s first strategy is to say that very thing.\u00a0 Part of the problem with such a plan is that, almost without exception, everyone does and says that same thing.\u00a0 Over the course of my 26 years, I have read, quite literally, thousands of DUI police reports.\u00a0 Ask any DUI lawyer or any police officer what people say when the officer asks if the person has been drinking, and you\u2019ll learn that far and away, everyone gives about the same answer; \u201c2 beers,\u201d \u201c2 drinks,\u201d or \u201ca couple of drinks.\u201d\u00a0 No one replies, \u201cHell yeah; officer, I drank a lot, and man, am I am really drunk\u00a0right now!\u201d\u00a0 Likewise, everyone<\/strong> who stands before the Judge for drinking while on probation says that he or she didn\u2019t mean any disrespect nor do they have drinking problem.\u00a0 So if that\u2019s not going to fix things, what do you do?<\/p>\n

It begins with knowing the Judge.\u00a0 And let me be frank about this:\u00a0 You<\/em> don\u2019t know the Judge.\u00a0 Even if you\u2019ve been to court 10 times in front of that same Judge, that qualifies you for \u201cknowing\u201d him or her about as much as having had 10 fillings in your own teeth qualifies you to be a dentist.\u00a0 In some PV cases, I might have my client undergo a substance abuse evaluation from a specific substance abuse counselor who will tailor her report to my needs.\u00a0 Just to be clear, this does not mean that the evaluator will in any way \u201cmassage\u201d her conclusions to make them better; indeed, part of what makes her so good is that her integrity is not<\/span> for rent or sale and her evaluations are honest and rock-solid.\u00a0 Instead, she will take into account the purpose for which we want an evaluation and explain her findings consistent with that.\u00a0 That means that an evaluation done for a probation violation case is going to read a bit differently than one prepared for plea negotiations.<\/p>\n

In other cases, there may be other \u201cstuff\u201d to get together.\u00a0 Most of the time, letters from well-meaning employers, family or friends are not helpful, but in some cases, they can make a huge<\/span> difference.\u00a0 I know this sounds clich\u00e9d, but each case must be looked at individually.\u00a0 The Judge, the circumstances, the facts of the case \u2013 all of this needs to be taken into account when your lawyer comes up with a strategy or plan to handle your violation.\u00a0 If I was to give my most honest answer to how this all should be done, I\u2019d say that it is mostly a matter of instinct, based on decades of experience.\u00a0 Tactical legal skills and an encyclopedic knowledge of the rules of evidence are about as helpful in a probation violation case as ballet slippers in a football game.\u00a0 Here, it is the ability of the lawyer to just \u201cknow\u201d what to do that matters most, and that can change on a dime when you\u2019re pitching it to the Judge.\u00a0 This is a lesson lawyers have to learn the hard way, or at least those lawyers who are capable of translating experiences into learning opportunities.\u00a0 It is always the fate and folly of less experienced (or hard-headed) lawyers to continue with a line of argument that the Judge is not buying.\u00a0 A lawyer has to be a first-rate salesperson, body-language reader and verbal chameleon, all rolled into one, because if your first plan isn\u2019t flying with the Judge, you need to make an adjustment on the fly<\/em>.\u00a0 Much of this is pure instinct, refined by loads of experience, and I don\u2019t believe that such instinct can be learned, or taught.\u00a0 The honing of these skills is done through all that experience.\u00a0 A lawyer\u2019s skills (should) improve with every passing year.\u00a0 Like being a musician or painter requires a certain \u201cinborn\u201d talent, so, too, does the ability to be really persuasive in a dynamic situation, like a probation violation hearing.\u00a0 It really doesn’t get any more “dynamic” than that.<\/p>\n

False positive test results present a challenge because most often, it\u2019s only the person him or herself saying the result is false.\u00a0 This is another thing Judges hear all the time \u2013 \u201cI swear I didn\u2019t drink, Your Honor.\u201d\u00a0 The problem is that a test which detects alcohol (it\u2019s an alcohol detector, after all, not a lie detector) says you did.\u00a0 This isn\u2019t to say that the honest protest of one\u2019s innocence is worthless.\u00a0 A week before this article was written I went into a probation violation hearing where we had nothing more than my client\u2019s insistence that he did not drink, no matter what the test result indicated, and had the violation dismissed without any hard evidence to the contrary.\u00a0 The problem is that Judges hear desperate stories and denials all day long, and certain excuses for testing positive, like having used cold medicine<\/a> or hand sanitizer just don\u2019t work.<\/p>\n

In the interests of diplomacy, there are certain strategies that I can\u2019t get into here, but that come into play in certain positive result situations.\u00a0 Suffice it to say, for purposes of this article, that these things are not \u201capplicable\u201d in every case, but they do exist and should be looked at as possible ways to help in all probation violation situations.\u00a0 Obviously, the best possible circumstance is to stroll into court with a timely make-up test result that disproves the prior positive result in question, but that\u2019s not always possible.\u00a0 If it seems like I\u2019m being deliberately vague here, I am; if the magician explains how the trick is done, it won\u2019t work on the audience anymore….<\/p>\n

There is really less to say about false positives because there is less that can be done with them, and, fortunately, claims of false positive results don\u2019t make up any significant portion of probation violation cases, anyway.\u00a0 Also, it shouldn\u2019t come as a surprise that some initial claims of \u201cfalse positive\u201d are changed as a person thinks about it and then remembers how alcohol could have gotten into his or her system.\u00a0 Having spent as much time as I have in this field, I\u2019ve had a number of people claim they had no idea that the punch was spiked, and I\u2019m NOT kidding about that, either.<\/p>\n

By way of numbers, missed tests are certainly way more common that true \u201cfalse positive\u201d test results.\u00a0 The problem with missed tests is rather obvious; either the miss was accidental, or it was intentional.\u00a0 The temptation to miss a test because of an expected positive result and then show up later and claim it was accidental, or at least otherwise not intentional, is pretty strong.\u00a0 To avoid having to sort through the endless such explanations, most Judges will be clear that a missed test will count as a positive test, although I\u2019ve never seen a Judge stick by that without at least considering someone\u2019s explanation about why they didn\u2019t show up.\u00a0 Even the Judge I mentioned earlier, who has about zero interest in why a person tested positive after being ordered not to drink (or use drugs) will at least listen to a person\u2019s explanation for missing a breath or urine test.<\/p>\n

A missed test is one thing (literally), but missing multiple tests is quite another.\u00a0 This usually happens because a person just kind of gives up on staying clean and starts drinking or using again.\u00a0 It is sometimes easier to handle a probation violation when this occurs than it is for a single, positive result or single missed test because a person cannot offer an innocent explanation.\u00a0 Instead, he or she will come to court, kind of \u201csurrendering\u201d to the Judge and the realization that he or she does, in fact, have an alcohol and\/or drug problem.\u00a0 These situations present another point at which I may want to have my client undergo a private substance abuse evaluation.\u00a0 Obviously, we won\u2019t be looking for one that concludes there is no underlying problem; instead, we\u2019ll want a fresh take on why a person picked up and\/or used, and an update to his or counseling, education or treatment plan.\u00a0 In other words, you can often get some genuine sympathy for having a problem when you really come to terms with and genuinely want help for it.\u00a0 This is usually not the case when you\u2019re violated for a single positive result or missed test followed by one or more of the usual denials or excuses<\/p>\n

Sometimes, a person will miss a test because of an obligation, such as work, or a family emergency (even getting the kids to school).\u00a0 While it is understandable that this can happen, common sense dictates that if it does, a person should get a make-up test ASAP.\u00a0 In other words, if Bad Breath Brenda misses her Tuesday test because of school and work, and by the time she is able to test on Tuesday night, every place is closed, she should immediately get an EtG test on Wednesday.\u00a0 A subsequent negative make-up test will at least obviate any concerns that she missed the test to avoid a positive result.<\/p>\n

But that\u2019s not all there is to it.\u00a0 A missed test is, after all, a missed test.\u00a0 When a person is on probation and under orders to test, then missing the test is the violation<\/strong>, and testing later, even with a clean result, does not change the fact that a test was missed<\/strong>.\u00a0 In other words, proving that you didn\u2019t drink or use does not, in and of itself, absolve you of the violation for missing a test.\u00a0 Granted, if on a single occasion a person misses a test but then obtains a clean result almost immediately thereafter, his or her lawyer can likely wrangle a break from the Judge.\u00a0 However, a testing schedule is a testing schedule, and every Judge expects compliance with it.\u00a0 If a person has a job from 9 to 5 and is expected to make 100 widgets in that time, he or she can\u2019t just follow his or her own schedule (instead of the one the boss requires everyone else to obey) and start showing up at 11 and work until 7, or show up at 6 and work until 2, make his or her 100 widgets, and then go home, figuring everything is okay because the widgets were made.\u00a0 Not drinking (or using) is part of probation, but so is testing when required.<\/p>\n

This all sounds good, but out there in the real world, lots of people just miss a test and don\u2019t show up to answer with a doctor\u2019s note or a make-up test.\u00a0 While a missed test is not the end of the world, it still causes a probation violation, and we\u2019ll have to show up to court and make the best of it.\u00a0 There is no \u201cmagic\u201d pitch to make to the Judge, nor is there some Supreme Court case to cite that, when cited, will provide a free pass.\u00a0 As much as I\u2019d like to sell<\/a> the idea that because I\u2019m so charismatic and persuasive, I can just talk you right out of trouble in this situation, the cold truth is that, like we noted earlier, much of this depends on the Judge.\u00a0 If you\u2019re lucky enough to find yourself on probation to a more understanding Judge, then, well, you\u2019re lucky.\u00a0 In any case, the very best pitch is going to have to be made on your behalf, and it must take into account your Judge\u2019s general disposition and idiosyncrasies.<\/p>\n

We\u2019ll stop here and return in part 3<\/a> to look at how probation violation cases actually play out in the courtroom, and the level of evidence (standard of proof) required to prove that a person did, in fact, violate.<\/p>\n","protected":false},"excerpt":{"rendered":"

In part 1 of this article about Michigan probation violations, specifically in the Detroit-area district and circuit courts of Wayne, Oakland and Macomb Counties, we began examining what happens when a person who is on probation for a criminal or DUI case either tests positive or misses a test altogether.\u00a0 I pointed out that to […]<\/p>\n","protected":false},"author":4,"featured_media":7024,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[28],"tags":[],"class_list":["post-3606","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-criminal-cases"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.randalawyers.com\/wp-json\/wp\/v2\/posts\/3606","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.randalawyers.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.randalawyers.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.randalawyers.com\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.randalawyers.com\/wp-json\/wp\/v2\/comments?post=3606"}],"version-history":[{"count":2,"href":"https:\/\/www.randalawyers.com\/wp-json\/wp\/v2\/posts\/3606\/revisions"}],"predecessor-version":[{"id":8483,"href":"https:\/\/www.randalawyers.com\/wp-json\/wp\/v2\/posts\/3606\/revisions\/8483"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.randalawyers.com\/wp-json\/wp\/v2\/media\/7024"}],"wp:attachment":[{"href":"https:\/\/www.randalawyers.com\/wp-json\/wp\/v2\/media?parent=3606"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.randalawyers.com\/wp-json\/wp\/v2\/categories?post=3606"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.randalawyers.com\/wp-json\/wp\/v2\/tags?post=3606"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}