Probation violations in Michigan OWI cases

A probation violation is a claim that a person on probation broke a condition of the probation order, such as a treatment or monitoring requirement, reporting as directed, or the requirement not to break any law.^[7][8] The court decides it at a hearing where the state must prove the violation by a preponderance of the evidence, and what the court can do depends heavily on whether the violation is "technical."^[4][3]

The process below comes from MCL 771.4 and 771.4b and Michigan Court Rule 6.445, which applies in both district (misdemeanor) and circuit (felony) courts.^[9] For the terms of probation itself, see probation after an OWI.

Technical and nontechnical violations

A "technical probation violation" is any violation of the probation order that is not on the statute's exclusion list, and the statute expressly includes "missing or failing a drug test."^[1] These are not technical violations:

• violating any law of Michigan, a local government, another state, the United States or a tribe, whether or not a new charge is filed;^[2]
• absconding, meaning intentionally failing to report or give one's whereabouts for at least 60 continuous days;^[2]
• for a person on probation for a felony OWI, consuming alcohol.^[1]

That last rule applies only to felony OWI probation. Alcohol use is not on the exclusion list for misdemeanor OWI probation.^[1] A new interlock offense, such as driving without a required interlock or having someone else blow into it, is itself a misdemeanor and so is not technical.^[10][2]

How a violation case starts

For a nontechnical violation the court may issue a bench warrant or a summons once it finds probable cause.^[11] For a technical violation there is a presumption of a summons or order to show cause rather than a warrant, which the court can overcome only by stating a specific reason on the record.^[12] An arrested probationer must promptly be brought before the court for arraignment on the alleged violation.^[11]

At that arraignment the court must:

1. make sure the probationer receives written notice of the alleged violation;^[5]
2. say whether it is charged as technical or nontechnical, and state the maximum possible jail or prison sentence;^[5]
3. advise of the right to contest the charge at a hearing and to a lawyer, appointed at public expense if needed;^[5]
4. decide what form of release, if any, is appropriate, and set a prompt hearing date.^[5]

A probationer held in custody must get a hearing within the permissible jail sanction and no later than 14 days after arrest, or be released pending the hearing.^[4] For a technical violation, a hearing not held within the applicable jail sanction means return to community supervision.^[13] The court may postpone the hearing if the violation is also the subject of a new criminal prosecution.^[14]

The violation hearing

The statute calls revocation hearings "summary and informal," and the probationer is entitled to a written copy of the charges and a hearing.^[15] Under MCR 6.445:

• the evidence against the probationer must be disclosed;^[14]
• the probationer may be present, present evidence, and examine and cross-examine witnesses;^[4]
• the court need not apply the rules of evidence, except privileges;^[4]
• the state must prove the violation by a preponderance of the evidence;^[4]
• the court must find whether a proven violation is technical or nontechnical.^[14]

The probationer may instead plead guilty at or after arraignment. Before accepting the plea, the court must explain that it gives up a contested hearing, state the maximum possible sentence, make sure the plea is understanding, voluntary and accurate, and establish a factual basis.^[16] A court may instead allow a written acknowledgment of a technical violation without any hearing; the court then may not revoke probation or jail the probationer for it, but may continue, modify or extend probation, and the acknowledgment can count as a prior technical violation and may delay early discharge.^[17]

What the court can do

After finding a violation, the court may continue probation, modify its conditions, extend it, or revoke it and impose incarceration as the law allows.^[18] Extensions must stay within the probation limits: 2 years for a misdemeanor and 3 years for a felony, with felony probation extendable up to twice by 1 year each for specific reasons.^[19]

Jail caps for technical violations

Technical violation	Misdemeanor probation	Felony probation
First	Up to 5 days[3]	Up to 15 days[3]
Second	Up to 10 days[3]	Up to 30 days[3]
Third	Up to 15 days[3]	Up to 45 days[3]
Fourth or later	Any number of days up to the remaining jail sentence[3]	Any amount up to the remaining sentence[3]

Probation cannot be revoked on a technical violation unless the probationer has already been sanctioned for 3 or more and commits another.^[3] Several technical violations from the same transaction count as one, and a jail sanction may be extended to up to 45 days if the probationer is waiting for a treatment bed and has no safe place to wait.^[13]

If probation is revoked

Revocation should be imposed only for repeated technical violations, new criminal behavior, as otherwise allowed by the technical-violation statute, or at the probationer's request, and after revocation the court may sentence "in the same manner and to the same penalty" as if probation had never been ordered.^[15][6] In an OWI case that means the original statutory range: up to 93 days for a first OWI (up to 180 days for a first high-BAC OWI), 5 days to 1 year of jail (or community service) for a second within 7 years, and prison of 1 to 5 years as one option for OWI 3rd.^{[20][21][22][23]} A prison sentence requires a current presentence report.^[18]

Unpaid fines and costs

A court may not jail a probationer or revoke probation for nonpayment without the findings the court rules require, and a defendant may not be jailed for unpaid costs unless the court finds the person has the resources to pay and has not made a good-faith effort.^[18][24] The same ability-to-pay rule applies to orders to reimburse police and emergency costs.^[25]

Sobriety court participants

Treatment courts use graduated sanctions, which may include jail, as part of the program.^[26] A felony conviction for an offense committed after admission requires termination unless the judge, after consulting the treatment team and with the prosecutor's agreement, continues the participant.^[27] If participation ends, the court sentences on the original charges, and the judge must notify the Secretary of State, which suspends or revokes the specialty-court restricted license.^[28][29] See sobriety courts and the sobriety court restricted license.

After the decision

If the court imposes incarceration, it must advise the probationer of a right to appeal if the original conviction followed a trial, or of the right to apply for leave to appeal if it followed a plea; any other sentence carries the right to apply for leave.^[30] Appeal deadlines are in appealing an OWI conviction.

Practical points: keep copies of the probation order, testing schedules, attendance records and receipts, and write down the date and time of any missed appointment and the reason. Practice on summonses, acknowledgments and sanctions varies by court and probation department.