Motion to Terminate Probation or Motion for Early Discharge from Probation

By May 29, 2014 October 16th, 2019 blog post

Motion for Early Discharge from Probation

It is possible to file a Motion for Early Discharge of Probation and win! Although most judges are reluctant to grant an early termination of probation, the defendant has a really good chance of getting off probation early if the right arguments are made in a persuasive and credible way.

Satisfying the Court Ordered Terms of Probation

Every case is different, which is why the defendant considering filing a motion for early termination of probation should always consult with a qualified criminal defense attorney beforehand for a confidential case evaluation. This being said, here are some basic things that should be done in most cases.  For example, the defendant will need to establish that he/she has successfully paid all fines and restitution, completed all counseling requirements (alcohol, anger-management, etc…), and finished any community service requirement.

The court may also consider positive efforts that have been made by the defendant, while on probation (even if not ordered by the court). This can include:

  • Efforts to acquire and maintain employment
  • Engaging in volunteer and community service work
  • Educational pursuits or achievements
  • Significant family circumstances (new child, sick parent, etc…)
  • Lack of involvement in the criminal justice system
  • Hardships to the defendant or the defendant’s family as a result of the probation may also be considered.

Seeking Discharge from Probation Following a Probation Violation

If the defendant has violated the terms of probation at any time, this may make it more difficult to achieve an early discharge. However, a prior violation of probation does not preclude early termination. In these cases, having experienced counsel is really important.

Filing the Motion

The defendant should consult with a lawyer prior to filing any motion. A motion is a written request for early termination of probation and may or may not require a hearing in court. Motions and briefs filed in court must comply with the state and local court rules. The prosecutor or probation officer may oppose early termination and can file a response brief arguing that probation should not be ended prematurely. At the time of the hearing, the prosecutor or local city or township attorney may appear and argue against the motion. The judge will read the pleadings and listen to the arguments made from the defense attorney and the prosecutor prior to making any decisions. The outcome may depend on which lawyer is more prepared and who which one presents the most persuasive argument.

Other Factors the Judge May Consider

Unless the defendant has been on probation for an extended period of time (normally, at least a six months), the filing of the motion for early termination may be premature. Additionally, it is important to demonstrate to the court how the probation has impacted the defendant. A great criminal defense lawyer will know how to best present the motion in a way to achieve this goal.

For example, many individuals experience problems such as: loss of employment positions or job advancements, inability to successfully pass background checks, restrictions on travel, loss of benefits and otherwise, as a result of being on “active probation status.” These types of issues can also be taken into consideration at the time of the hearing. Although these negative consequences of probation can be influential on the court, positive effects of probation tend to be even more persuasive. The court wants to believe that the probationer is getting off probation with some benefit and is thus less likely to re-offend.

The most effective argument for early termination is that probation is inhibiting the defendant’s ability to attain employment, get a probation, participate in his or her children’s school activites, get a professional license, or something similar.  The point of probation is to provide structure while a defendant takes steps to get his or her life in order.  If serving a term of probation is making things more difficult, a judge will be hard pressed to deny a motion for early termination.

A Middle Ground a Judge May Consider

There are cases where the circumstances may not justify an early discharge from probation.  In these cases, there are frequently alternatives that a judge is likely to consider.  For example, terms and conditions of probation can be individually removed or changed.  Drug and alcohol testing, mental health therapy, tether, house arrest, educational programs, community service, curfews, etc… are examples of terms of probation that a judge has the power to discontinue. In cases where a judge declines to discharge a defendant from probation, he or she may consider making probation nonreporting.  In most cases, this means that all terms and conditions of probation are eliminated and the only remaining requirement is that the defendant not commit any new criminal offenses. In effect, this is just like a discharge from probation.

Experienced Criminal Defense Lawyers

If you think you may be eligible to file a Motion for Termination of Probation or a Motion for Discharge from probation, please call one of the experienced, zealous, and caring attorneys with LEWIS & DICKSTEIN, P.L.L.C. at (248) 263-6800 for a free consultation today. We will take the time to talk to you and find a way to help.  If you complete a Request for Assistance Form, we will promptly contact you for a confidential case evaluation.