How to Avoid Jail for Violation of Probation
Probation Department Wanted a Long Prison Sentence for a Defendant. “Not So Fast,” Said LEWIS & DICKSTEIN, P.L.L.C.
The prosecution requests prison time for a violation of probation. Denied!
Last week, an attorney with LEWIS & DICKSTEIN, P.L.L.C. represented a client accused of violating his probation in one of Michigan’s circuit courts. While probation violations are not uncommon, the probation department’s recommendation in this matter was especially severe. The Probation Department was asking for a 3-15 year prison sentence. Before the client hired the firm, his first lawyer told him nothing could be done to prevent a prison sentence. Because of his supposed failure to comply with probation, along with his atrocious record, he was going to prison. The client wanted to know if avoiding jail for probation violation allegations was possible.
The Shifting Burden
The criminal justice system is supposed to operate free of prejudice, and the accused are initially guaranteed the presumption of innocence. Lady Justice, however, occasionally peeks under her blindfold when it comes to those with long criminal records, and she often glares down in anger upon those accused of violating probation. The presumption of innocence during a criminal prosecution vanishes if they are convicted. Probation is an alternative to jail, a chance to prove to the court that one has been rehabilitated and is unlikely to commit the same criminal act again. There is a sense that one’s probation is a privilege and that one only remains out of jail by the grace of the court.
Someone accused of violating probation is entitled to a hearing, though the deck is often stacked. First, the standard of proof required to find guilt on a probation violation is called the “preponderance of the evidence” test. This means that the judge will theoretically weigh each side’s argument evenly and rule in favor of the position they deem more likely to be true. The judge will find you guilty if the evidence shows only a 51% chance that you violated probation. It’s a far cry from the “beyond a reasonable doubt” burden placed upon the prosecution to prove guilt in the original case.
To make matters worse, some courts give great deference to their probation departments and the prosecutors. If a factual dispute arises regarding the probation violation allegations, courts almost always side with the probation agent absent tangible proof of the alternative. Essentially, the burden shifts, and the defendant must prove that they did not violate probation or should not receive a jail sentence. A defendant facing probation violation allegations needs a top probation violation defense attorney.
“Nobody Would Listen to Me.”
In the case last week, LEWIS & DICKSTEIN, P.L.L.C. senior criminal defense attorney George MacAvoy Brown’s client was on probation for Operating a Motor Vehicle While Intoxicated 3rd Offense, his fourth felony. He had a lengthy criminal history, including many probation violations and jail sentences. His probation agent claimed he had failed to comply with most of the conditions of his probation, including testing for drugs and alcohol. Probation recommended revocation of probation and that he serve 3-15 years in prison.
The man knew he had a bad history but did not believe he had violated the way the probation agent claimed. As it turned out, his first probation agent was not diligent about having him drug test or supervising any of the other conditions of his probation. When she resigned and moved across the country, a new probation agent took over his supervision. The new probation officer violated his past failed compliance. He explained that the first probation agent had never told him to test or perform other required tasks, but his new probation agent would not listen. The man knew he had to go to court and explain the situation to the judge but was appropriately afraid that she, too, would not listen. He knew that his criminal history, including multiple drunk driving convictions and probation violations, might lead to an assumption of his guilt, that they would ignore his protestations, and that the judge would send him to prison. The man called LEWIS & DICKSTEIN, P.L.L.C. They listened.
Mr. Brown represented the man in court and gave a thorough presentation demonstrating conclusively that the defendant’s alleged violation arose from little fault of his own. While Probation argued that the man had a duty to correct his lax probation agent, Mr. Brown convinced the court that such an expectation was unreasonable. What probationer would insist that his probation agent be harder on him? Instead of sentencing the man to prison and revoking his probation, the judge merely continued his probation and even struck down Probation’s recommendation of a $100 fine. Because of Mr. Brown’s aggressive and intelligent representation, our client received no jail based on the probation violation allegation.
Justice is Served
No Jail for Violation of Probation
Our client walked out of that courtroom free, visibly flooded with relief because the judge did not order jail time for the probation violation. Aside from wanting to stay out of prison, something even more critical hung in the balance. His wife, who suffers from several medical ailments, relies on the health insurance provided by her husband’s job. She would have lost her husband and her health care if the judge had sentenced him to incarceration that day. The consequences would have been catastrophic.
Sometimes you need someone to listen to you, to hear your side of the story. If you are facing jail or prison due to an alleged probation violation in Oakland County, Wayne County, Macomb County, or elsewhere in Michigan, call LEWIS & DICKSTEIN, P.L.L.C. to speak with an attorney who can prepare the best possible defense. LEWIS & DICKSTEIN, P.L.L.C. will compel the court to hear your side and ensure your rights are protected. LEWIS & DICKSTEIN, P.L.L.C. will listen to you.
Call us today at (248) 263-6800 for a free consultation or complete a Request for Assistance Form. We will contact you promptly and find a way to help you.