Michigan Probation Violations
Summary: What constitutes a probation violation and what your rights are when you are violated by your probation officer. Describes the procedure and what the standards and burden of proof are.
Probation is a sentence imposed
in lieu of incarceration when you are found guilty of a crime. This allows
people to continue on with their lives in the civilian world while still being
under the court's supervision and direction. It also keeps jail space available
for people who truly need to be locked up. There are different kinds of
probation such as supervised and unsupervised. You can even be sentenced to
both jail and probation. Being on probation is a privilege and not a right. If
you don't keep up with your obligations, then you can be sentenced to jail for
violating your probation or worse, the judge can revoke your probation and
sentence you to an even longer jail term. Some counties have more rigorous
requirements for probation than others and thus the demands can be hard to keep
up with. This is why defendants can very easily and often find themselves being
violated by their probation officer. In this article I will discuss the various
aspects of probation in greater detail.
Terms of Probation
For the most part, probation
terms are boilerplate regardless of the offense, but there are some terms that
are case or person specific. The most common probation terms are:
- No possessing firearms
- You must remain employed or be seeking full-time
employment or attend school
- No contact with anyone you know to have a felony
record
- Submit to random or scheduled drug or alcohol tests
- Do not possess, consume, or be around places where
alcohol is sold and to be consumed on the premises
- Pay court costs and fines
- Obey all local, state, and federal laws
- Report any official police contact
- No contact with the victim in your case (if there was
one)
- Report any changes in address or employment
- Submit to random searches of your person or house
- No leaving the state without permission
Again, these are the most common
ones but more terms may be added or modified depending on your specific case.
For example, you may have a curfew imposed which is especially imposed on
younger people. If you were convicted of torturing animals, the court may order
you to not own or be around animals. It varies from case to case, but often
there are a lot of common probation terms no matter what the case.
Supervised vs. Un-supervised
Probation
Depending on the terms of your
probation, it will either be supervised or un-supervised. With supervised
probation, you will be assigned a probation officer (an employee of the
Michigan Department of Corrections) that you will have to report to on a
regular basis, usually once a month. This is who monitors your probation for
the court to make sure you are meeting all your conditions. They also have the
power to violate you if they believe you have not complied with one or more of
your probation conditions. If you are not assigned a probation officer, that
means you are on un-supervised probation which means you do not have to
regularly report to anyone. You will just have to provide proof to the court on
your own that you are obeying their orders such as paying your fines on time,
etc. There is also a hybrid that some judges use where you may only have to
report the first and last month of your probation.
What factors go into whether you
are given supervised or un-supervised probation? It depends on the nature of
the offense and how crowded the court or the probation department is. A lot of
it varies by location and the judge. For instance, in Wayne County it is easier
to get un-supervised probation simply because if everyone who was sentenced to
probation in the Metro-Detroit area was assigned a probation officer to report
to, they would need a probation building the size of the Empire State Building.
Some jurisdictions frequently give un-supervised probation for minor
infractions such as marijuana possession. That is where having an attorney that
practices in that county comes in handy because they will be more likely to
tell you what the judge is apt to do.
What are the Most Common
Probation Violations?
- Testing positive for drugs or alcohol, aka dirty
drops
- Not reporting a change in address, employment, or
official police contact
- Missing an appointment with your probation officer
- Failing to pay court fines or attend a court-ordered
program
- Being convicted of a new crime
What Can Happen Even I'm Found
Guilty of Violating Probation?
- Your probation can be extended, new conditions can be
added, or existing conditions modified
- You can be sentenced to jail up to 93 days and your
probation will continue
- Your probation can be revoked simply as an
unsuccessful discharge with no further punishment
- Your probation can continue but certain delayed
sentences such as HYTA, 7411, or 769 can be revoked
- Your probation can continue with no further
punishment which is akin to a verbal reprimand or stern warning
- Your probation can be revoked and the judge can
re-sentence you for the underlying offense that you are on probation for
What Happens When Your
Probation Officer Violates You?
When your probation officer has
given notice that they are violating you, you will first be arraigned by the
judge on the matter. The judge will explain that you have the right to be
represented by a lawyer and that you have a right to a Showcause Hearing. That
is a hearing where the probation officer would have to demonstrate by a
“preponderance of the evidence” that you have violated a condition or
conditions of your probation. It is not a high standard like the “beyond all
reasonable doubt” standard at criminal trials. Instead it's a balancing test.
They basically just have to tip the scale, i.e. 51%, or show more likely than
not that you are guilty of the violation.
You still have the right to be
represented by a lawyer and to call witnesses and present evidence if you wish
and certainly you can cross-exam any witnesses that your adversary presents.
Depending on the jurisdiction, either the probation officer will present the
evidence or the prosecutor will by calling the probation officer as a witness.
At the conclusion of proofs, the judge will decide if you are guilty of the
violation and if you are guilty, what your sentence for the violation will be.
The probation officer will give a recommendation which a lot of judges closely
or strictly follow. However, a good lawyer can still persuade the judge to
deviate from their recommendation.
If you have been violated, it is
important that you have an attorney with experience in probation violations to
represent you. If the judge or probation officer indicates that they are likely
to recommend jail or sentence you to jail, you especially need a lawyer on your
side. You should try to retain a lawyer that frequently practices in the area
you are on probation in so that your lawyer is familiar with the judge,
probation officer, and what the likely sentence if you are convicted will be.