Written by attorney Loren M. Dickstein

Misdemeanor and Felony Probation Violations - Perspectives from a Probation Violation Attorney

Common questions related to criminal charges and probation violations.

"Do I have a right to probation instead of jail or prison time?"

Whether it be for a felony or misdemeanor, according to Michigan law, probation is not a right, but a privilege. Michigan judges will tell you that probation is a "form of leniency." In practice, the terms and conditions can be so onerous that it may not feel much like "leniency."

"If I get probation, does that mean I will not do any jail time?"

A defendant may be sentenced only to a term of probation or the court may sentence a defendant to a term of probation in combination with a term of jail. Jail, as a condition of probation, can be served immediately or can be ordered at the end of probation (usually waived if the defendant is in long-term compliance with probation).

"Will I have to report to a probation officer?"

Defendants placed on probation are supervised by a probation officer, also called a field agent or PO. The probation officer is an employee of the Michigan Department of Corrections. In most cases, probation is reporting which requires the defendant to personally meet with the probation officer once a month or, in some cases, once per week (often this is called intensive probation). A judge also has the power to make probation (1) nonreporting, (2) report by mail, (3) report by e-mail or (4) report by telephone.

"How can probation be revoked?"

Because probation is a form of leniency, it can be revoked at any time for a violation of the terms and conditions of probation." Revocation usually occurs if the Judge finds that the defendant has violated the terms of the probation as set forth at sentencing. Probation can be revoked in any manner the court considers appropriate.

There are several ways in which you can violate the conditions of your probation. Some of the most common ways to violate probation are the following:

· engaging in assaultive, threatening or intimidating behavior

· changing your residence or employment without authorization or notification to your probation officer

· failing to pay fines, costs or restitution as ordered

· failing a drug or alcohol test (urine, blood, breath or ETG) (or committing another offense involving the use of drugs or alcohol)

· being arrested for a new crime or being charged

· failing to report contact with the police

· missing or appearing late for an appointment with your probation officer

· failing to complete a court-ordered program (therapy, education, victim's impact panel, etc…)

· failure to appear at a scheduled court appointment

· associating with a known criminal

· leaving the state without the permission of your probation officer

· failing to maintain school or employment

· failing to complete community service

"What happens if I violated my probation?"

If you are suspected of violating your probation, you may receive a notice of a violation hearing or a revocation hearing or you may find out that a warrant has been issued for your arrest. You will have a right to be arraigned on the alleged violation and notified of the allegations against you. If you wish to contest some or all of the allegations, you have the right to a probation violation hearing.

"What happens at a violation of probation hearing?"

At a violation or revocation hearing, the court will determine whether one or more of the probation violation allegations are true. The burden of proof is by preponderance of the evidence and hearsay is admissible. Preponderance of the evidence is a much lower standard of proof than Beyond a Reasonable Doubt. It is often said that to prove an allegation by preponderance of the evidence, the judge must be convinced by a measure of greater than 50%. There is no right to a jury trial on a probation violation.

"What can happen if the judge finds that I violated probation?"

If the court finds you guilty of violating your probation, it can take any of the following steps:

· Best Case Scenario: Continue the probation without punishment or with just a fine for the violation. This outcome is most likely when the violation of the probation has been very minor or perhaps a technical violation. In these situations, the court or your probation officer may choose to merely give you a warning. There are a number of ways that a highly experienced criminal defense attorney can convince a court to follow this protocol even if the violation is more than merely technical but every situation is different.

· Middle Ground: The court may modify the conditions of the probation, or extend the period of probation. If the probation violation is a bit more serious (such as failure to appear, pay fines, or to complete a program), your probation officer can ask the court to modify the conditions of your probation to require more meetings, counseling, or community service, or to impose more restrictions on your freedom (by setting a curfew, for instance or tether as an alternative to jail). Any modifications will be ordered by the judge.

· Worst Case Scenario: Upon a finding that there has been a violation of probation, the judge may revoke the probation and sentence the defendant on the underlying offense. This scenario is more likely to happen if the probation violation is serious or if you have a particularly tough judge.

"Can the judge give jail or prison for a violation of probation?"

If your probation is revoked or if a violation of probation is substantiated, the court may sentence you to the maximum possible jail or prison term that was permissible at the time of the original sentencing.

"What happens if my original case was under advisement and I violate probation?"

If your original sentence was under advisement (HYTA, MIP deferral, etc…), delayed (MCL 771.1) or under the Domestic Violence Statute (MCL 769.4a), you have a tremendous amount to lose. A finding of a probation violation may result in termination of any advisement or other special sentencing consideration.

"Should I have a Probation Violation Attorney?"

In a word…YES! If jail, probation, money or your future are important to you, it would be very unwise to represent yourself for a violation of probation. Do you know the rules? Do you know what court rules are applicable? Do you know the rules of evidence? Do you know what alternatives are available? Do you know how to score the sentencing guidelines? Only a lawyer with many years of experience as a Michigan Criminal Defense Attorney is qualified to get you the best possible outcome in your case.

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