I was arrested for public intoxication, but i refused a breath test at the police station so no BAC was on record. the prosecutor ultimately offered to reduce it to a misdemeanor noise violation in court. as part of my sentence, i was required to take five weekends of breathalyzers. my probation officer recently told me that i had to come in and take more breath tests on top of my five weekends. my probation terms only required me to report for five weekends. can she legally do that without getting a court order that is signed by my sentencing judge?
Criminal Defense Attorney
It depends on what the probation order says. Some probation orders are left almost wide open, i.e. "participate in any services as required by your probation officer." If it says five weekends of breath tests and then nothing else about breath tests, than I would say it's five, unless making you do more falls under some other term of your probation. Without seeing your probation order, I really can't give you a definite answer. So who can? The judge can. Write a letter to the judge that sentenced you and drop it off at the court. Wait a few days and then check back to ask if the judge saw your letter yet. Otherwise, hire an attorney to ask the judge for you, although, really you shouldn't have to go that far. Good luck.
Divorce / Separation Lawyer
I suggest you consult with an attorney to review the probation order. Many of them are like job descriptions that say “and all other duties assigned” and in the case of a probation order “all other lawful orders of the probation officer”. You can always file a motion for clarification, but don’t be surprised if the judge changes his order.
Steven A Heisler
248 339 0000
Criminal Defense Attorney
I recommend that you get an attorney involved. The real answer to this question is "how much discretion does the Probation Order grant to the Probation Department?" Some Michigan Courts, such as the 35th District Court in Plymouth, regularly issue Probation Orders (under their non-traditional sentencing option) that grant wide discretion to the Probation Department to modify or alter the terms of your probation. Other courts, such as the 52nd District Court in Novi, often issue Probation Orders that exercise tight control over the manner and method of drug testing through JAMS, etc. In any case, the Probation Order is a court order, and not even the Probation Department can act in contravention to it. BOTTOM LINE: if you feel that your Probation Officer is stepping outside the clear language of the Probation Order, get an attorney and have them file the appropriate Motion. You deserve the sentence that you originally bargained for.