My husband has been charged with criminal mischief and reckless driving last year, he took a plea to get his felony charge down to misdemeanor. He received 12 month of probation for each charge and on april 11 during a random drug test at the probation office, the test came out positive for marijuana which is IMPOSSIBLE since my husband does not use any drugs. Furthermore DOC claims that ghe test was tampered with because the result was deluted. My husband had no chance to tamper with the specimen because he was observed. He also has only one kidney and has to drink 2-3 gallons of water each day. He went to the Consortium the next day and did a test on his own which was negative. The result was faxed to the probation officer who withheld this evidence and issued a warrant. The day my husband turned himself in on may first, he did another observed drugtest which was also negative. He had a courtdate on may 15th during which the state attorney did not object to let him go, but the DOC objected and because he had no chance to finish his last 2 sessions of anger management, the judge put out a $75000 bond. Our attorney dropped the case last week because I can not afford to pay his retainers anymore, so I guess a Public defender will take over. His next court date is on june 5th, I wonder if it would be better to Postpone this date until his probation would be over anyways, can they give him more time after the probation is over? A public defender would need more time than just a few days to learn and understand about what is really happening here. We just started a business and it takes the both of us to make it from month to month, should he not just get day by day and time served for the 6 weeks he will be in jail until the 13th? He is in there in spite of having done nothing wrong. Thank you for your time Evelin
Evelin, ask his prior attorney.
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The total time which he can have his liberty restricted in the aggregate is 12 months, unless the judge sentenced him to consecutive terms. Please clarify whether it was a consecutive or concurrent sentence on the two charges. It sounds like, and typically would be, concurrent periods of probation on the two charges, which sound like they were two unrelated cases but I suppose could have been two counts within the same case. Either way, after twelve months, he is out of the court's jurisdiction.
I see no reference to a violation based on failure to pay a fee or a fine, so I am not sure where my colleague saw reference to a financial issue. However, I may be overlooking something that I am staring right at. Please clarify this point as well.
Thanks in advance. David B. Dohner, Esq.
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Since the sentences were concurrent, the most probation your husband can do total is 12 months. However, this does not prevent the judge from sentencing him to anything up to 12 months of jail. Additionally, once a VOP is filed probation is tolled. This means that the period of probation is no longer accumulating since the VOP was filed so postponing his VOP hearing will not cause the court to lose jurisdiction. For example, if a person is sentenced to 12 months probation on January 1, 2011 and a VOP is filed on August 1, 2011 the probation period tolls at the 8 month mark. This means that even if the person is found guilty of the VOP 3 months, 9 months or 6 years later, the court could still sentence the person to 4 more months of probation or a period of 12 months jail minus credit for any time the person has already spent in jail.
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