Anyone who has been placed on probation knows it can be a stressful time in their life. Depending on where you are placed on probation, you may have a reasonable probation officer or a tyrant. Certain officers are very quick to hammer people with probation violations that can land a person in jail or even prison!
When you are placed on probation, instead of jail or prison, in any West Michigan or Grand Rapids court, a judge is showing you trust. He is saying you deserve your freedom for now and that the judge believes you can complete the terms of your probation as set forth by the judge. If you violate the terms the judge sets forth on your probation, you will probably face jail or prison time. Interestingly enough, a lot of people on probation do not realize they are in danger of being charged with probation violations until their agent threatens them with a hearing or their agent has them arrested.
According to the Michigan Department of Corrections, “A Judge is allowed to set the offender’s conditions or requirements of probation. Beyond statutory probation conditions requiring the offender to avoid criminal behavior, not leave the state without permission and report as specified by the agent, the court is free to impose special conditions of probation based on the offender’s criminal and personal history. These special conditions can be jail or prison, substance abuse treatment, community service, high school completion, restitution, fines and court costs and finding and keeping employment.”
What Are Probation Violations?
When a client of mine is put on probation, I tell them that when their PO says “Jump,” the proper response is “How high?” The probation officer has a lot of control over your life! If you do not follow their instructions properly, you are guilty of violating terms of your probation that the judge assigned at sentencing. A person on probation is not entitled to their full compliment of constitutional rights. A person on probation or parole must consent to searches even when there isn’t reasonable suspicion to search a person or their house.
The United States Supreme Court in Terry v Ohio the Court held that the Fourth Amendment‘s prohibition on unreasonable searches and seizures is not violated when a law enforcement officer stops a person on the street and frisks them without probable cause to arrest as long as the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. The officer also has a reasonable belief that the person “may be armed and presently dangerous.” If you are on probation, you are not entitled to the protections given under Terry and the Fourth Amendment.
Top Reasons People Violate Their Parole
1. Getting caught using drugs or alcohol while on probation.
The vast majority of times a person is given probation after a criminal conviction, the judge will require the person not use drugs or alcohol while on probation. The state of Michigan recently legalized a small amount of marijuana possession. However, a lot of local judges will not allow a person on probation to use marijuana even if they have a card to use marijuana for medical purposes. Using recreational marijuana is almost universally denied by local judges while someone is on probation.
2. Missing your probation meetings or showing up late.
Do not be late or miss your meetings!
A person placed on probation will usually have to report at least once a month to their probation officer. In some cases, a person may have to meet up with their PO once a week. A small amount of people placed on probation are given none reporting probation. A person on none reporting probation only has to avoid getting into legal trouble, complete required classes and pay off fines and costs in order to successfully complete probation.
3. Not completing community service or work crew.
Community service is usually given in instead of jail. Most judges given around 40 to 60 hours of community service at sentencing. The person on probation is given a wide range of possibilities for community service. We have had people tutor high school students, work for animal shelters and churches to complete their required service to the community. A person can be ordered to complete a lot of community service while on probation. Make sure you keep track of your hours and get your place of service approved by your probation officer.
4. Not completing counseling
If you are arrested for drunk driving, you will be required to take classes such as substance abuse counseling and AA. I person convicted for shoplifting will have to take a course that informs them of the cost society pays for retail fraud. A person that gets convicted for a violent crime will likely have to take anger management classes.
5. New criminal charges or arrests
Just being arrested or charged for a new crime will likely cause your probation and parole status to be revoked. You do not have to be convicted to get into trouble. Just being charged with a new crime is grounds for your probation officer to revoke your probation, but there are some probation officers that will not do anything until a person is formally convicted of a new crime. If your new charge is a felony, you can expect your probation to be removed immediately. If you are facing a new misdemeanor charge, your PO may wait to see what the outcome is.
More Examples Of Probation Violations
- Leaving the state — a person may do so if they are given permission by the court.
- Leaving the country – a person may do so if they are given permission by the court.
- Hanging around with a known felon –not allowed unless the felon is your spouse.
- Not making your scheduled meeting with a probation officer
- Quitting your job or
- Getting fired from your job
- Quitting school
- Not paying off your fines
- Violating a no contact order
- Engaging in threatening behavior
- Violating any other order by the court while you are on probation
Probation Officers
When your probation officer says jump, we tell our clients to say, “How high?” You need to be polite with your PO and make sure you understand what your PO wants you to do. If you are not sure, ask your PO. We understand that sometimes a person is given a probation officer that is not friendly and very demanding. If this is the case with your PO, please bend over backwards to make things work out. Courts rarely allow a person to be assigned a new PO. If you think you are being falsely accused by your probation officer, please keep detailed records and gather evidence to support your claim. Judges will take the word of the PO over you any day of the week. You need to have rock solid evidence to convince a judge otherwise. You may call in expert witnesses to testify on your behalf if you have supposedly failed a drug test. You can have other witnesses testify on your behalf during a hearing.
You simply can not afford to face a probation violations or parole violation hearings by yourself. Your liberty is seriously in jeopardy if you are found to have violated the terms of your probation or parole.
What Happens If I Violate My Parole?
Under Michigan Law, both parole and probation are alternatives given to prison and jail time. If a person in on parole, they have been released from prison before their sentences were completed. Probation is when a judge gives a person supervision by a probation officer instead of jail time. Both parole and probation are considered privileges. A convict does not have a right to be put on parole or probation. Anyone who is out on parole or on probation will probably end up in jail if they violate the terms they are required to follow while out of jail and prison.
Michigan Compiled Laws § 771.4 provides that “it is the intent of the legislature that the granting of probation is a matter of grace conferring no vested right to its continuance. If during the probation period the sentencing court determines that the probationer is likely again to engage in an offensive or criminal course of conduct or that the public good requires revocation of probation, the court may revoke probation.”
In early January of 2018, the Michigan legislature amended 771.4 of Michigan’s compiled laws and added a new section 771.4(b). The new law goes over “technical’ violations of probation. The law calls for limited and short jail sentences for those who commit a technical violation of probation. This section of law clearly lays out what a technical violation of probation is: a violation of an order by the court which requires a person to have no contact with an individual, a violation that is not the breaking of another law, the consumption of alcohol when an individual has been ordered not to drink when they are on probation for a third offense DUI.
If the judge is facing someone who violated their terms of probation on terms that aren’t covered in the limited instances above, a 30-day maximum sentence would apply to the probation violation. The 30-day maximum sentence applies to each technical violation. If the court found you guilty of technical violations after a hearing, it could not give you credit for the time served on a previous violation.
Once you are done doing your time of incarceration for violating probation, the court still has many tools they can use. The court can order you to follow the terms of probation that were originally given you. The court could give you completely different terms of probation. The court has complete discretion. You will probably still be ordered to not drink any alcohol. You will probably be ordered not to use any illegal drugs and marijuana. The court will order you to pay off any fines and costs you must pay off. Finally, if you still have community service or classes to take the court will order you to complete them.
If you have been ordered to attend a treatment program by the court and there is not a bed available for you to use at the facility, the court could put you in jail for no more than 90 days on this technical violation.
Probation violations can give you a criminal record by losing your diversion status such as 7411 or HYTA.
Probation Violation Defense
A lot of people get their probation violated because of a failed drug test. A good defense that can be used to defeat this accusation is showing a flaw in how the drug test was administered or if there is equipment failure. If you are accused of violating probation because of a failed drug test and you know you haven’t used illegal narcotics, you need to go to a hospital and have a medical professional administer a drug test to see if you get different results. Having a valid excuse for missing an appointment or not being able to complete community service are also good defenses to use at a revocation hearing.
What Happens During A Probation Revocation Hearing?
If a person gets summoned to court or arrested for violating a term of their probation, he or she will be given a chance to refute the claim that they violated a condition of their probation. At this hearing, your attorney will be allowed to cross-examine witnesses the state has used against you at the hearing. Your lawyer will be allowed to present exculpatory evidence that can show you didn’t violate any terms of your probation.
During this hearing, the state has a significant advantage. The state only needs to prove their case by a preponderance of evidence. At trial, the state must show a person is guilty beyond a reasonable doubt. The probationer will be found guilty of violating their probationary terms if the state has proven it is more likely than not a violation of probation took place.
If a person on probation has been found guilty at the revocation hearing, there judge will have several options. The judge may let the person off with a warning and not hand out jail or prison time. If the judge believes it won’t happen again, the violator maybe given a break. The Judge may also tighten the conditions of probation. A person maybe required to take drugs tests at a more frequently. Instead of once a week, the person may have to take a drug test three times a week. The amount of required counseling sessions can be increased. The amount of time a person was sentenced to be on probation can be increased. The judge may revoke probation and have the person sent off to jail or prison. If the violation of probation was a technicality, the punishment will be light. If criminal behavior was the reason for the hearing, judges will almost always issue a punishment that includes incarceration.
In summary, there are the possible punishments for violating probation in Michigan courts:
- Jail
- Prison
- More Probation Time
- Fines
- Probation Revocation
- A Warning
- More Counseling
- More required attendance of substance abuse classes
- More drug and alcohol testing
Are Second Chances Possible?
Yes, there are second chances available. Judges will examine all the facts before them to determine what the punishment should be for violating terms of your probation. If you missed an appointment, why? Was it an honest mistake such as forgetting the time or date? Did you have a doctor’s appointment or medical emergency? If you have been violated for not completing your community service, the judge will probably show mercy if you have become injured and not able to physically complete the tasks required of you. If you are violated for not paying off your fines and costs, the judge will consider your ability to pay and your future ability to pay down your financial obligations.
There are probation officers who have already given people a second chance when it comes to a probation revocation hearing. I was at one such hearing and the young man had already tested dirty for drug usages four times before he was violated. Most probation officers are not asking for a judge to throw you in jail or to revoke your bond after your first mistake on probation. Do not test their mercy while on probation. There are some PO’s that will violate you for the first mistake you make and remember it depends on what the mistake is.
Do not face a probation revocation hearing alone! Call Shawn now at 616-438-6719 if you have any questions!