WHAT IS PROBATION
In Michigan, most first time Misdemeanor offenders are not put in jail, rather they are placed on court supervised probation. Probation is viewed as an alternative to jail and is treated as a defendant’s second chance. Depending on the Court, probation may mean anything from performing community service, to attending Alcoholics Anonymous (AA). MCL 771.1 et al governs the intricacies for probation in Michigan Courts. Once placed on probation, the Court, through its probation department, will monitor the defendant probationer until the end of the probationary term.
WHAT IS A PROBATION VIOLATION?
A probation violation is when the probationer violates one or more of their conditions of their probation. I have represented many people in probation violations and have seen all types of violations of probation. However, the most common probation violation is when the probationer tests positive for drugs or alcohol. Once it is determined by the probation department that a potential probation violation has occurred, then the probationer is issued a summons to go to Court to answer to the alleged violation.
THE LEGAL PROCESS FOR PROBATION VIOLATIONS
Contrary to popular belief, probation violations are defendable cases. I have tried many probation violation cases with great results for my clients. The process begins when you are summoned to Court for a hearing to determine whether you violated your probation. You can either plead guilty, or have a hearing which is presided over by your Judge. The burden of proof is lower in a probation violation hearing than in a normal trial, that being that the Judge has to find by the Preponderance of the Evidence that you violated your probation.
WHAT DO I DO IF I AM ACCUSED OF VIOLATING MY PROBATION?
Many times, probationers who are accused of violating their probation simply go in front of the Judge without an attorney and plead guilty. You have a constitutional right to an attorney at a probation violation hearing and you should enforce this right. However, in certain courts, the representation of the court appointed attorney is subpar in these types of circumstances. My advice is to speak with an attorney who is competent in the area of probation violations and is not afraid to take a probation violation to hearing. I appear all of the time in the Rochester, Bloomfield Hills, and all other District Courts in Oakland County Michigan and am known by the Judges as somebody who will challenge an unwarranted probation violation.
DEFENSES TO PROBATION VIOLATIONS
Just because you are accused of a probation violation doesn’t mean you should go in and plead guilty. Unfortunately, every day in court I see lawyers bringing their clients in and pleading guilty on probation violations without any type of preparation and without adequately examining and advising the defendant on their chances of success at a probation hearing. The bottom line is that many times, probation violations are winnable on technical grounds, such as the Court’s underlying inability to sentence a person to the particular probation violation they are accused of violating. Further, many times defendants are innocent of the probation violation and should bring their case to trial.