Michigan Probation Violation - Options and Obtaining Favorable Results
By: Daniel Hilf, Esq. - Hilf & Hilf, PLC
If you are charged with probation violation in Michigan, you have a choice to make to address the allegation:
You can elect to have an attorney and a contested hearing in front of a Judge. A jury trial is not permitted. At the hearing the Prosecution has the sole burden to prove at least one accusation of probation violation against you by a preponderance of the evidence. Preponderance of the evidence means that the Prosecution has to establish that at least one accusation is more likely than not to be true. Hence, it is a much lower burden here, compared to the original allegation(s) which lead to the probationary sentence, where the Prosecutor's burden was beyond a reasonable doubt. In order to prove his/her case, the Prosecutor calls one or more witnesses to testify at the probation violation hearing. Usually, the Prosecutor calls a Probation Officer to testify from the file which the probation department maintains concerning you. The Probation Officer does not even need to be the Probation Officer that directly supervises the case, because hearsay evidence is admissible at a probation violation hearing. Your attorney is free to cross examine any witness called by the Prosecutor. Furthermore, the Prosecutor will often introduce exhibits (for example, drug test results, police reports, etc.), which also may be hearsay but are admissible for consideration by the Judge at the hearing. If you have witnesses to call, your attorney will have the opportunity to present witnesses that are necessary for the Defense. The Defense, likewise, is not prevented from introducing hearsay evidence at the probation violation hearing as well. The Prosecution is free to cross examine any witness called by the Defense. You can elect to testify in your own defense. In some instances it is not advisable because of 5th Amendment or strategic considerations. If you testify you are subject to cross examination by the Prosecution. If the Defense presents a case, the Prosecution is free to call rebuttal witnesses to try and contradict the Defense's case. You also have a right to not testify, and your silence will not be used by the Judge in consideration of the probation violation. If you are found not guilty of violation of probation, you have a right to be continued on probation.
You can elect to not have a probation violation hearing, and admit to some or all of the allegation(s) of probation violation with the assistance of a lawyer. If you are either found guilty of at least one allegation of probation violation after a hearing, or plead guilty and give up your right to a hearing, you are at the mercy of the Judge as it relates to sentencing. Prior to sentencing, you and your attorney have the right to make a statement to mitigate any sentence which may be imposed, and/or to provide an explanation to the Court. A Judge has several options concerning sentencing. The Judge can elect to do nothing, and discharge you from probation. The Judge can extend the probation, and add additional conditions to the terms of probation (for example, community service, drug testing, tether, etc.). The Judge can, in most instances, choose to incarcerate you for a little as a day, up to the maximum sentence allowable by law. If you were originally sentenced to a diversionary program such as HYTA, 7411, 769.4a, etc., the Court has the option of removing that status, which can also result in additional consequences (having a public record of conviction, loss or restriction of driving privileges on drug cases, etc.). The original sentence guidelines on felony cases are sometimes exceeded by the Judge, with the basis for the departure from guidelines being the nature of the probation violation.
The Defendant's attorney can sometimes have the probation violation adjourned for several reasons: sometimes it is adjourned by the court appointed attorney in order for the Defendant to retain an attorney; sometimes because the Defendant was charged with a new crime and the Court is willing to wait in order to see what happens; sometimes additional time is given in order for the Defendant to comply with probation by making payments, getting a GED, completing community service, etc; sometimes the Court wants more current information as to your recent progress while on probation.
In some instances, the Defense attorney can get the Probation department to withdraw the violation if the violation is minor and the Defendant has brought himself/herself into compliance with probation. In some instances, the Defense attorney can get the Court to dismiss the probation violation on due process grounds (for example, the violation was not timely filed; the Defendant is indigent, and has not ability to pay the fines imposed, etc.).
Although you have an option to receive court appointed counsel (if you are indigent), it is advisable to retain counsel if you have that ability. As noted earlier, you are at the mercy of the Court if the violation is established. The Court is not bound by the recommendations of the probation department, the Prosecution, the Defense counsel, or yourself. A court appointed attorney is often appointed in the courtroom with the expectation of the Court to address the entire matter including sentencing the same day you meet your attorney. The court appointed attorney is often assigned to represent other individuals at the same time as well, making his/her time limited. In order to provide a defense to the allegations, or a reasonable and mitigating defense to the sentence of the Court, the attorney needs to be well prepared.
When I represent an individual concerning an allegation of probation violation I devise a strategy to get the best possible result. Sometimes I need to obtain records and reports to explain away the situation, or to place the situation into the proper context. Sometimes I advise my clients to do certain things before Court depending on my client's circumstances (for example, letters of support, AA attendance, etc.) in order to get a good result. Sometimes it is a matter of knowing who the Judge is, and handling the matter in a way that is persuasive to the particular Judge involved in order to help you. It is also important for you to bring any paperwork that you may have in your possession that supports your compliance with the terms of probation (for example, proof of community service, proof of payment of fines, etc.). The bottom line is that you need to be prepared and persuasive to get a good result on a probation violation, which necessitates strong representation by experienced legal counsel.