Violation of Probation
A criminal conviction may lead to probation instead of jail time. Probation is generally considered an alternative to jail. Probation is a period of time when you are supervised and ordered to follow a set of terms and conditions called an Order of Probation. You must prove you can follow the Order of Probation and not get into any more trouble in order to avoid going to jail or suffering other consequences. Probation is often given instead of jail time or following jail time for many crimes including felonies and misdemeanors such as drunk driving and domestic violence. The specific terms of probation vary depending on the offense and the Defendant’s history. The Judge can basically impose any term that they feel is reasonably related to the case.
The goal of probation is to rehabilitate and punish a person who has been convicted of a crime. Ideally, probation should help that person become a productive member of society while lessening the probability that he or she will commit another offense.
Probation, an alternative to imprisonment, is imposed when a straight jail sentence is not determined to be appropriate or if the court feels that the Defendant deserves more than fines and costs but less than jail. The Court doesn’t generally consider probation punishment but most Defendant’s on probation do. During probation, a Defendant is allowed to live at home generally but they must follow specific terms and conditions set forth in their order of probation. These may include;
- Living in a specified location
- Participating in rehabilitation programs
- Submitting to tests for drugs and alcohol
- Performing community service
- Maintaining employment
- Not having any contact with certain individuals such as the victims of the crime or anyone who collaborated on the crime.
When on probation a Defendant is monitored by a probation officer who works with them in making sure the Defendant is following the conditions and behaving lawfully. If the probation officer believes the Defendant has failed to follow any terms or conditions they will issue a show cause notice for the Defendant to appear and show why he is not in contempt of court by violating his probation in one or more ways. A probation violation is basically a failure to follow the Court’s order of probation. This is considered a contempt of Court. Some examples would be being involved in the commission of another crime, testing dirty for drugs or alcohol, missing a drug or alcohol test, failing to complete community service, failing to pay restitution or fines, etc. Anything you were ordered to do but failed to do can be a violation of probation.
If your probation is violated you have the right to a hearing. At the probation violation hearing you can either plead guilty or contest the allegations and force the probation department to prove the violations. You have the right to be represented by an attorney at these hearings. It is generally smart to do so because if you are found guilty of violating probation you will be sentenced again to a punishment. The Judge can sentence you to anything they want including the maximum jail time allowed by law. Some of the other type of punishments include the following;
- Continue probation
- Modify the conditions of probation such as adding more testing or terms
- Lengthen the period of probation up to two years for a misdemeanor and five for a felony
- Revoke probation. This usually only happens when a heavy jail sentence is being imposed.
- Incarcerate up to the Maximum time allowed
If probation is revoked, the probationer is sentenced again for the crime for which he or she was originally charged. There is a much higher likelihood of jail for violation of probation because in the eyes of the court a Defendant was given the opportunity to avoid jail by following the Courts order and has now failed. Some judges take it as a personal slap in the face that a Defendant did not follow their orders of probation. For many Defendants probation is revoked and they are sentenced to jail quickly and without realizing the seriousness of their situation. Usually, a Defendant sentenced to jail will report immediately following their guilty plea or conviction. It is critically important that a Defendant be able to effectively communicate their side of the story anytime they are faced with a charge of violation of probation. Many people fail at probation because the requirements were overwhelming given their financial or family situation or difficulties with mental health or substance abuse. Our experienced attorneys know how to effectively communicate these situations to the Court in a manner that doesn’t just sound like the same old excuses the Court hears all the time. The risk involved in violations of probation hearings cannot be overstated. While not every Judge is harsh on probationers there are many in Oakland County especially who will treat violations of probation very harshly even on a first occasion.
Just because you are accused of a probation violation does not necessarily mean that you will be found to have violated your obligations, nor does it always mean you’ll face consequences or penalties. There are many ways to analyze and defend the violations and often things that can be done before a hearing to improve the outcomes. You should contact us as soon as you receive notice of a violation so that we have as much time as possible to thoroughly prepare.Types Of Probation Violations In Michigan
Many different kinds of behavior may be considered a violation of probation, depending on exactly what conditions were attached to the probationary order. Some of the common reasons for a probation violation include:
- Leaving the state without permission.
- Failure to contact your probation officer as required.
- Failure to attend required drug or alcohol counseling.
- Leaving a court-ordered rehab program.
- Testing positive for drug or alcohol use in violation of the terms of your probation.
- Refusal to complete court-ordered counseling or therapy.
- Failing to maintain employment or continue with your schooling.
- Refusal or failure to comply with court-ordered activities or community service.
- Relocating without authorization or without alerting your probation officer.
- Missing a court date.
- Being accused of another crime.
In a 1967 case called Morrissey v. Brewer, the Supreme Court said that someone on parole couldn’t be sent to jail or face sanctions just because a parole officer said he or she had broken parole. The parolee was entitled to due process. Just a few years later in a 1973 case called Gangon v. Scarpelli, the court made clear that those accused of a probation violation also have the right to due process.
Due process is an important constitutional right that means you cannot be penalized or lose freedoms without fair legal proceedings, including notice of the charges against you and the right to defend yourself. Those accusing you of violating your probation have a legal burden to show that you actually did violate the terms and conditions the court imposed on you as conditions of your probation.
While different states have interpreted due process for probation violations in different ways, the bottom line is that you have to be formally accused in a hearing of having violated your probation, and the violation must be proved before your probation can be revoked or penalties imposed.
However, unlike in a criminal case, the violation doesn’t have to be proved beyond a reasonable doubt. The prosecution has the obligation to show only by a preponderance of the evidence that you committed the probation violation. In other words, they need to show that more likely than not you did something wrong. If the prosecutor meets this burden at your probation violation hearing, then you may be found to have violated your probation and will face consequences.
In the case of a probation violation, the hearing will typically be held before the judge who initially ordered probation. You will get to defend yourself or provide justification for your actions, but if the judge believes you committed an unjustified violation, he or she will decide the consequences.Consequences Of A Probation Violation
The consequences of a probation violation are not the same in every case. For severe violations, you may have your probation revoked and be sent to jail. In other cases, the judge may just make your probationary period longer or impose additional requirements.
The strength of your arguments at the hearing and the justification for your actions will help to determine how your probation violation affects your future. It is helpful to have an experienced Michigan probation violations lawyer representing your interests at this hearing.
Many Defendant’s are on probation with a deferral program that will allow them to have their conviction dismissed at the end of probation. These included delayed sentences under MCL 771.1, Holmes Youthful Trainee Act, drug convictions under 333.7411 and domestic violence first offenders under MCL 769.4a. Convictions for violation of probation often result in the court revoking those deferral statuses and imposing the convictions permanently on the Defendant’s record. You must fight to protect your deferral status. Don’t just plead guilty and give up. Have a plan. Work with an experienced attorney and put your best foot forward. Call today to discuss your case.
Every Judge is different. For example, our main office is located in Bloomfield Hills only a mile away from the 48th District Court. Probation violations in the 48th District Court are taken very seriously, as are most crimes in general. The on probation in the first place. Although 90% in school will get you an A on your report card when on probation in the 48th District Court you will likely fail if you only do 90% of what is required. There are three Judges in the 48th District Court. Judge Barron, Judge Small and Judge D’agostini. All three have their own way of viewing violations of probation and every violation won’t be treated the same. For example, if you are on probation for drunk driving in the 48th District Court and your violation is for testing positive for alcohol that is considered one of the worst violations. Being late completing a class won’t be as serious but will still probably result in a violation. We have made it our business to know how to handle violations of probation in the 48th District Court and all of the other Courts around Oakland County, Macomb County and Wayne County. Call us today to discuss your case and take advantage of our experience and knowledge.