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.
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