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, a persuasive and credible motion can give the defendant a really good chance of winning early discharge.
How to Win a Motion for Early Discharge 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, experienced criminal defense attorney. During a free consultation, the attorney can map out the best strategy for success. Of course, there are always exceptions; however, the defendant will usually 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. If there is a need for urgency or if the request for termination is because of illness or infirmity, the judge may waive these requirements.
The court may also consider positive efforts that have been made by the defendant while on probation (even if not ordered by the court). These 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 contact with the criminal justice system
- Hardships to the defendant or the defendant’s family as a result of the probation.
- Seeking Discharge from Probation Following a Probation Violation
If the defendant has violated the terms of probation at any time, this will make it more difficult to achieve an early discharge. However, a prior violation of probation does not preclude or prevent early termination. In these cases, achieving early termination may not be possible without a seasoned attorney by your side.
Filing the Motion for Early Discharge from Probation
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 brief in response, arguing against the motion. At the time of the hearing, the prosecutor may appear and argue against the motion. The judge will read the pleadings and listen to the arguments before he or she makes a decision. The outcome may depend on which lawyer is more prepared and persuasive.
Other Factors the Judge May Consider
Unless the defendant has been on probation for an extended period (normally, at least six months in most cases), 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.
For example, many individuals experience problems such as loss of employment positions or job advancements, inability to successfully pass background checks, restrictions on travel, and loss of benefits, as a result of being on “active probation status.” The judge will need to consider these issues at the time of the hearing. Although these negative consequences of probation can be influential on the court, the positive effects of probation tend to be even more persuasive. The court will want to believe that the probationer benefited from probation and is 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 promotion, participate in his or her children’s school activities, get a professional license, or something similarly important. The point of probation is to provide structure while a defendant takes steps to get his or her life in order. If continued probation is making things more difficult for the defendant to progress and be rehabilitated, 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 alternatives that a judge may consider. For example, terms and conditions of probation can be removed or changed. Drug and alcohol testing, mental health therapy, tether, house arrest, educational programs, community service, and curfews 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 also consider making probation nonreporting. In most cases, this means that the judge eliminates all terms and conditions of probation, 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.