Probation and Probation Violations in Michigan – What you need to know.
An allegation of a probation violation can be scary, and there can be severe consequences. Here are the answers to your questions about felony and misdemeanor violations of probation.
“Do I have a right to probation instead of jail or prison time?”
According to Michigan law, probation is not a right. Probation is considered to be a privilege for those individuals who judges determine are not an immediate danger to the public or do not require incarceration for a punishment. 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 to a term of probation only, or 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. If your lawyer can convince the judge to delay the jail time until a later date or at the end of probation, an argument to suspend the jail time can be made at a later date. If there is a violation of probation, most judges will start with a presumption that jail time should be ordered.
“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. Probation officers are employees of the Michigan Department of Corrections or a district court. Probation is usually “reporting probation,” 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. Missing or being late for a meeting with a probation officer can result in a probation violation and jail time.
“How can probation be revoked?”
Because probation is a form of leniency, it can be revoked at any time if there is a violation probation. Revocation means that probation is ended, and a jail or prison sentence is imposed. Revocation usually occurs if the judge finds that the defendant has violated the terms of the probation, and he or she does not deserve another opportunity to comply with probation. Probation can be revoked in any manner the court considers appropriate. As you may imagine, an experienced and highly effective defense lawyer gives the defendant the best possible chance of avoiding revocation.
“How did I violate probation?”
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 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. If the judge finds by a preponderance of the evidence (greater than 50%) that you violated probation, he or she can choose to revoke probation or order some other type of punishment. In some cases, a judge can be convinced to order a fine, community service, or some other intermediate sanction, as opposed to revoking probation.
“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 a preponderance of the evidence, and hearsay is admissible. Preponderance of the evidence is a much lower standard of proof than beyond a reasonable doubt. The judge must be convinced by a measure of greater than 50% to reach the preponderance of the evidence standard. There is no right to a jury trial on a probation violation. Probation violation hearings are handled by a prosecutor or a probation officer. At the hearing, witnesses are called to testify, and evidence of the alleged violation is admitted. The defendant has a right to be represented by a lawyer, testify, call witnesses, and admit evidence.
“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 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.
- 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 judge 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). Only the judge can modify probation conditions.
- 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.
“Can the judge give jail or prison for a first allegation of a probation violation?”
If your probation is revoked or if a violation of probation is substantiated, the judge has the authority to sentence you to the maximum possible jail or prison term that was permissible at the time of the original sentencing. Although a judge does not have to order jail time, he or she can do so even on a first violation. A second or subsequent violation is very likely to result in a term of incarceration.
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 Aggravated Domestic Violence, the maximum would be up to 1 year in jail. You cannot get a prison sentence for a misdemeanor probation violation.
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. 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 continued probation without incarceration. Most judges consider jail or prison as a first option when a defendant violates probation; however, successful defense attorneys know the best ways to convince judges to consider non-incarceration penalties as an option.
“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 sentence (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 treatment. Many highly experienced defense attorneys have been successful in convincing a judge to keep the advisement or deferral status even if there was a probation violation.
“Should I have a Probation Violation Attorney?”
In a word, YES! If jail, additional probation, money, or your future are important to you, it would be very unwise to represent yourself in a violation of probation hearing or trust your fate to a court-appointed lawyer that barely knows you or your background. 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 and help you avoid jail when possible. If you needed a major medical procedure, would you want to be treated by a general practice or discount doctor, or would you insist on a specialist? Simply, you want the best lawyer you can get.
“Do I have to go to jail for violating probation?”
No! If you are represented by a great criminal defense attorney, he or she can give you the best possible chance of avoiding jail or prison time. At LEWIS & DICKSTEIN, P.L.L.C., we have been hired on cases where judges have told our clients that if they violate probation, they face certain jail or prison time. In many of these cases, we have been able to convince the judges not to impose any incarceration. Even in cases of second, third, and fourth violations, we frequently can find a way to avoid a prison or jail sentence.
Top Rated Violation of Probation Defense Attorney
When the probation violation attorneys with LEWIS & DICKSTEIN, P.L.L.C. represent clients, we have a strategy that has been crafted and tailored over the course of decades. It is our ultimate goal to avoid incarceration at all costs and minimize other potential consequences. In every case, we begin with the goal of getting the violation of probation dismissed. Our team of attorneys will 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 or a DISMISSAL of the violation of probation.
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 or fill out a Request for Assistance Form and we will promptly contact you.