Written by attorney Daniel P. Hilf

Common Defenses for Probation Violation

It is sometimes difficult to defend accusations of probation violation due to the low burden of proof (preponderance of the evidence) and the allowable use of hearsay evidence because the rules of evidence do not apply in the same manner for violation of probation hearings. When faced with a probation violation, it is important to obtain experienced legal representation. A partial list of typical, but potentially defensible, violations include:

Failure to Pay

When a Defendant is indigent, the applicable Michigan case law provides that this forms the basis of a defense to a violation of probation for failing to pay court costs, fines, and restitution. What constitutes being indigent varies between Judges and situations; a Judge may find an individual indigent when it comes to obtaining a Court appointed lawyer but find that same individual under the same circumstances to be not indigent when it comes to paying for fines, costs, and restitution. Many Judges will scrutinize whether or not a Defendant is indigent if he or she can afford a cell phone, cable television, cigarettes, alcohol, or other so called luxury items. If full payment of what is owed can be made by or on behalf of the Defendant, sometimes the lawyer can get this particular violation dismissed. In some instances a Defendant will have the understanding that he or she has the full probationary period to pay fines, costs, and restitution. The Court and/or probation will usually have the Defendant on a payment plan if full payment is not made at the time of sentencing. Failure to abide by the payment plan is a potential violation of probation. However, sometimes a Court will allow for community service in lieu of payment of fees and costs. If a good explanation is provided for the lack of payment and/or consistent payments are made according to the Defendant's abilities, the Court is sometimes willing to give additional opportunity to pay and/or excuse the violation. Courts are not consistent in terms of how they view lack of payment, especially when restitution is still owed.

Failure to Report

In many instances a person is unable to report to probation due to incarceration or hospitalization. Impossibility to report may form the basis of a successful defense to this accusation. The Court will consider whether or not the nonappearance was voluntary or not. It is important to obtain and present documentation to the Court, because the Court may not rely simply upon the word of the Defendant. Defenses related to failure to report that are raised that never work include: lack of transportation, the Defendant forgot when he or she was supposed to report, and the Defendant arrived late for their appointment and probation refused to see him or her because they were late.

Failure to Submit Documentation

Courts require Defendants sometimes to complete or participate in certain programs (such as community service, drug treatment, AA/NA, Victim Impact Panel, Economic Crimes Class, Driving School, GED or High School, etc.). Even if the program is completed, the failure to submit documentation can be viewed as a violation. Usually, the Court will forgive the violation if the program was completed timely and verified documentation is submitted (albeit late). 4. New Criminal Activity - Many (but not all) Judges will allow the Defendant to delay the violation of probation while a new criminal case works its way through the judicial system. Many (but not all) Judges will dismiss the violation of probation if the Defendant is acquitted of the new criminal charge or if the new criminal charge is otherwise dismissed. Because a probation violation involves a lower burden of proof (preponderance of the evidence) than a new criminal charge (beyond a reasonable doubt), the Court can choose to treat the accusation differently. With this lower burden of proof, it is easier for the probation department and/or the prosecutor to establish the violation of probation. If the Judge agrees to delay the violation of probation, the Judge is free to set bond in an amount that could lead to the Defendant's incarceration. Whether or not this happens depends upon the Judge, the Defendant's history, and the nature of the alleged violation of probation. A probationer who is accused of new criminal activity should consider retaining an experienced criminal lawyer ( to represent him or her on both issues. Judges usually do not accept as an explanation that the Defendant took a plea bargain to a new charge, even though he or she was innocent, because the deal was too good to pass up - even though this may be entirely true. For example, a Defendant might pled guilty through plea negotiations to an Assault and Battery charge to avoid rolling the dice at trial on a Criminal Sexual Conduct accusation that could lead to prison and sex offender registration. A Defendant always has to weigh all the potential consequences of a plea to a new charge or charges when he or she is on probation, and needs to be properly advised of their options by an experienced criminal lawyer.

School/Education Related Violations of Probation

There are some Defendants that are ordered to complete High School or GED, but cannot due to a learning disability, illiteracy, or mental illness. Depending upon the Court, this may be a successful defense to probation violation. Failure to attend or complete school or obtain a GED due to economic reasons usually is not accepted as a valid excuse.

Use of Drugs and/or Alcohol

Potential defenses include:

The Defendant falsely tested positive for drugs and/or alcohol. Sometimes a person will falsely test positive due to erroneous testing procedures, exposure to chemicals/medications, and exposure to foods (for example - vanilla extract, poppy seeds, etc.) that can lead to a false positive reading. Often it is important to ask for laboratory confirmation, which means for the testing agency to submit the same sample to more rigorous testing to rule out a false positive reading. When the false positive is alcohol from a breathalyzer, it may be important to request an immediate EtG urine test. An EtG test can detect the use of alcohol for up to 80 hours previous to the time of the EtG test, which may prove instrumental when it comes to dealing with a probation violation;

The Defendant had a valid prescription for the substance that he or she tested positive for. It is important to provide the testing agency with prescriptions for all medications. Many (but not all) Courts do not recognize the legitimacy of medical marijuana, or contend that possessing medical marijuana is still illegal under Federal law and thus a violation of probation. Legal substances in Michigan, such as alcohol, medical marijuana (when a medical marijuana card was properly obtained), and opiate based prescriptions can be banned for a Defendant while he or she is on probation at the discretion of the Court;

The Defendant had the substance in his or her system before being placed on probation. Different substances remain in a person's system for different amounts of time. Marijuana, for example, can be detected for 30 days after use (and in some cases longer). The Court may contend that the Defendant violated his or her original bond if this defense is asserted; iv) the Defendant unknowingly ingested alcohol and/or drugs. If a person unknowingly drank alcohol (for example, from a punch at a party) or took a Tylenol pill for a medical condition not realizing that it was a Tylenol 3, some Judges may be sympathetic and others may blame the Defendant for not being sure of what he or she ingested. Judges are not likely going to buy the excuse of second-hand smoke when it comes to marijuana testing.

Violations of No Contact Provisions

Oftentimes a Defendant is placed in a difficult situation because the alleged victim of a crime initiates contact with the Defendant. The Defendant usually gets blamed for this type of conduct by the Court. The remedy is for the victim to seek to have the no contact provision lifted by the Court (however, in some cases this remedy will be denied - especially when the conviction involves domestic violence). When violated, the Defendant should seek to gather proof that he or she did everything in their power to avoid having contact. Sometimes phone records and emails will show a history of a victim who has done everything in his or her power to intentionally or unintentionally violate a Defendant's probation. Defendants sometimes lose sight of the fact that it is the Defendant, and not the victim, that is restrained from the contact and that the Defendant suffers the consequences for the contact. A defense to any violation of probation is if the Court loses jurisdiction over the Defendant. For most misdemeanors the maximum period of probation is 2 years. For most felonies, the maximum period of probation is 5 years. A violation of probation filed after the Defendant's maximum period of probation has been exceeded is defensible and often leads to a discharge from probation without further consequences. Likewise, a violation brought after the Defendant has already been discharged also is a potential defense.

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