Here are answer to your questions about felony and misdemeanor violations of probation:
“Do I have a right to probation instead of jail or prison time?”
Whether it be for a felony or misdemeanor, according to Michigan law, probation is not a right, but a privilege. Michigan judges will tell you that probation is a “form of leniency.” In practice, the terms and conditions can be so onerous that it may not feel much like “leniency.”
“If I get probation, does that mean I will not do any jail time?”
A defendant may be sentenced only to a term of probation or the court may sentence a defendant to a term of probation in combination with a term of jail. Jail, as a condition of probation, can be served immediately or can be ordered at the end of probation (usually waived if the defendant is in long-term compliance with probation).
“Will I have to report to a probation officer?”
Defendants placed on probation are supervised by a probation officer, also called a field agent or PO. The probation officer is an employee of the Michigan Department of Corrections. In most cases, probation is reporting which requires the defendant to personally meet with the probation officer once a month or, in some cases, once per week (often this is called intensive probation). A judge also has the power to make probation (1) nonreporting, (2) report by mail, (3) report by e-mail or (4) report by telephone.
“How can probation be revoked?”
Because probation is a form of leniency, it can be revoked at any time for a violation of the terms and conditions of probation.” Revocation usually occurs if the Judge finds that the defendant has violated the terms of the probation as set forth at sentencing. Probation can be revoked in any manner the court considers appropriate.
There are several ways in which you can violate the conditions of your probation. Some of the most common ways to violate probation are the following:
- engaging in assaultive, threatening or intimidating behavior
- changing your residence or employment without authorization or notification to your probation officer
- failing to pay fines, costs or restitution as ordered
- failing a drug or alcohol test (urine, blood, breath or ETG) (or committing another offense involving the use of drugs or alcohol)
- being arrested for a new crime or being charged
- failing to report contact with the police
- missing or appearing late for an appointment with your probation officer
- failing to complete a court-ordered program (therapy, education, victim’s impact panel, etc…)
- failure to appear at a scheduled court appointment
- associating with a known criminal
- leaving the state without the permission of your probation officer
- failing to maintain school or employment
- failing to complete community service
“What happens if I violated my probation?”
If you are suspected of violating your probation, you may receive a notice of a violation hearing or a revocation hearing or you may find out that a warrant has been issued for your arrest. You will have a right to be arraigned on the alleged violation and notified of the allegations against you. If you wish to contest some or all of the allegations, you have the right to a probation violation hearing.
“What happens at a violation of probation hearing?”
At a violation or revocation hearing, the court will determine whether one or more of the probation violation allegations are true. The burden of proof is by preponderance of the evidence and hearsay is admissible. Preponderance of the evidence is a much lower standard of proof than Beyond a Reasonable Doubt. It is often said that to prove an allegation by preponderance of the evidence, the judge must be convinced by a measure of greater than 50%. There is no right to a jury trial on a probation violation.
“What can happen if the judge finds that I violated probation?”
If the court finds you guilty of violating your probation, it can take any of the following steps:
- Best Case Scenario: Continue the probation without punishment or with just a fine for the violation. This outcome is most likely when the violation of the probation has been very minor or perhaps a technical violation. In these situations, the court or your probation officer may choose to merely give you a warning. There are a number of ways that a highly experienced probation violation attorney can convince a court to follow this protocol even if the violation is more than merely technical but every situation is different.
- Middle Ground: The court may modify the conditions of the probation, or extend the period of probation. If the probation violation is a bit more serious (such as failure to appear, pay fines, or to complete a program), your probation officer can ask the court to modify the conditions of your probation to require more meetings, counseling, or community service, or to impose more restrictions on your freedom (by setting a curfew, for instance or tether as an alternative to jail). Any modifications will be ordered by the judge.
- Worst Case Scenario: Upon a finding that there has been a violation of probation, the judge may revoke the probation and sentence the defendant on the underlying offense. This scenario is more likely to happen if the probation violation is serious or if you have a particularly tough judge.
If your probation is revoked or if a violation of probation is substantiated, the court may sentence you to the maximum possible jail or prison term that was permissible at the time of the original sentencing.
Misdemeanor Violation of Probation Sentence
If you violated probation on a misdemeanor case, the judge can give you the maximum jail sentence that you could have gotten on the misdemeanor. If you are on probation for an OWI 1st or Retail Fraud Third for example, the maximum would be 93 days in jail. If it was an OWI 2nd or Possession of Marijuana, the maximum would be up to 1 year in jail. You cannot get a prison sentence for a misdemeanor probation violation. If a judge is thinking of a jail sentence for a misdemeanor VOP, a great criminal defense attorney may make the difference between a jail sentence and convincing the judge to give just additional probation or some other sanction.
Felony Violation of Probation Sentence
If you violated probation on a felony case, the judge can give you the maximum prison sentence you could have gotten on the original charge. In Michigan, a prison sentence is always for a term of years instead of for just a number of months or years in prison. For example, a sentence would be 2 to 15 years in prison (a range of time). For OWI third for example, the sentence could be a prison sentence with a maximum of 5 years (for example: 18 months to 5 years in the Michigan Department of Corrections). If a judge is thinking of a prison sentence for a felony VOP, a great criminal defense attorney may make the difference between a prison sentence and convincing the judge to give just jail or, in the alternative, additional probation.
“What happens if my original case was under advisement and I violate probation?”
If your original sentence was under advisement (HYTA, MIP deferral, etc…), delayed (MCL 771.1) or under the Domestic Violence Statute (MCL 769.4a), you have a tremendous amount to lose. A finding of a probation violation may result in termination of any advisement or other special sentencing consideration.
“Should I have a Probation Violation Attorney?”
In a word…YES! If jail, probation, money or your future are important to you, it would be very unwise to represent yourself for a violation of probation. Do you know the rules? Do you know what court rules are applicable? Do you know the rules of evidence? Do you know what alternatives are available? Do you know how to score the sentencing guidelines? Only a lawyer with many years of experience as a Michigan Criminal Defense Attorney is qualified to get you the best possible outcome in your case.
Do I have to go to jail for violating probation?
No! If you are represented by a great criminal defense attorney, he can give you the best possible chance of avoiding jail or prision time. At Lewis & Dickstein, we have been hired on cases where judges have told our clients that if they violate probation that they face certain jail or prison time and we have been able to convince the judges not to impose incarceration.
Probation Violation Defense A Winning, Proven Strategy
When the Probation Violation Attorneys with LEWIS & DICKSTEIN, P.L.L.C. represent clients on VOP’s we have a strategy that has been developed over the course of many years to avoid incarceration if possible and minimize other potential consequences. We also carefully examine every aspect of our client’s case, their lives, and their other personal circumstances to develop the most persuasive argument possible for a lenient sentence, a delayed sentence and, in many cases, a DISMISSAL of the violation of probation.
In almost two decades of dedicated criminal defense practice, we have taken time to carefully study the judges and probation offices throughout Michigan to learn what factors are consistently most persuasive with each individual jurist and what factors the judges find most damaging. We take the time to fully customize the defense for each particular client to maximize his or her chances of success.
CONTACT AN EFFECTIVE
MICHIGAN PROBATION VIOLATION LAWYER
If you are charged with a violation of probation or if there even is a potential violation of probation, please call LEWIS & DICKSTEIN, P.L.L.C. for a free consultation at (248) 263-6800. Fill out a Request for Assistance Form and we will promptly contact you.
If it there is a way to help you, and there almost always is, we will find it.
“Most importantly…we are NOT afraid to win!“