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Misdemeanor Violations after a Plea or Finding of Guilty

I’ll keep this to misdemeanors, felony violation can be more fact specific and complex. When someone is sentenced to supervision, conditional discharge or probation in Illinois, they can be ordered to do several things. The most common are some term of community service, SWAP, DUI treatment or payment of fees.

A popular one is SWAP, or the Sheriff’s Work Alternative Program, which is community service through the Cook County Sheriff. I’ve had clients have to do such things as cleaning the courthouse windows to stitching patches onto uniforms.

The problem with SWAP is that the Sheriff’s can be very strict, or sometimes arbitrary according to some, in how they enforce their SWAP rules. A client was violated on his DUI supervision for failure to appear at SWAP. He insisted that he was told by the Sheriff’s that he could miss 6 days of SWAP after signing up. My client worked 6 days a week which forced him to miss several days. He called the Sheriff’s office and was advised that he had missed 5 days. When he appeared the next day, he was told he had missed 6 days and that he needed the court’s permission to reinstate SWAP.

When we walked into court yesterday, the state wanted to convert his remaining SWAP time to incarceration, a common tactic by the State which I used when I was there also. We asked the Judge for a month for my client to complete several more days of SWAP. We stipulated that if he could not, then we would agree to incarceration.

Now, the only reason I would agree to something like this is for one simple reason. Once a person plea’s guilty, they give up so much power to the court. Judge’s have such wide latitude that it is very very hard to come up with a good reason for a violation.

I stress to every client that everything needs to be self-documented. If it is not documented, then it didn’t happen as far as a Judge is concerned. If a client was tending to her sick child, bring medical records; if a car broke down, bring mechanic’s notes; if social services told you to go elsewhere, bring a note. Sometimes its hard to get a note, but YOU are the keeper of the case. It is YOUR name on the file. Therefore, YOU must care more about the case than others. Do not expect anyone else to keep track of you, because they probably will not.

If you get ordered to do SWAP, do not set the best case scenario schedule if given the choice. Choose times where you can go to work and do SWAP. Also, sign up right away.

If you need to go back to court to get reinstated, get a lawyer. When you walked into court on the original case you were innocent until proven guilty. Now, you are guilty but you’re proving you can't be trusted either. So many Judge’s who can be reasonable on the initial case are unreasonable when it comes to violations. I thought this way when I was a State’s Attorney too.

Several violations revolve around a Defendant missing or not completing required alcohol evaluation or treatment.

The most important thing in these cases is honesty from the client and preparation by the attorney. Unlike a regular case, where there are facts that won’t be known until trial, violations are different. In violations, the facts are known and can be prepared for.

When a person has plead guilty or is found guilty of a DUI, the State will ask for certain conditions. In all cases I’ve seen, a client will have to complete an alcohol evaluation and complete treatment.

Many times a person will be unable to due to money or job issues . On occasion, it will be because there is another drug found in their system.

The best policy in this case is to be open and up front about a job situation. I went to court recently for a client who had a child support order that as eating 60% of his paycheck. In the time he went to adjust the order, a violation had been filed for non-completion of his treatment which stemmed from an inability to pay the treatment costs. I asked him to come to court with his paycheck showing the 60% deduction and a letter or note from the treatment provider stating payment had to be made first.

Remember the rule from the last blog that, “[i]f it is not documented, then it didn’t happen as far as a Judge is concerned." I told the Judge that my client will now be able to pay and begin treatment before the next court date. Because it is so hard to win a violation hearing, the goal is to negotiate compliance short of jail time.

Sometimes, creativity is required. I had a client who had tested positive for cocaine during a random drug test. He entered my office a week before the court date and told me it was a one-time thing. I asked him plainly whether he would test positive if tested immediately. He said no. When the State presented the positive drug test in court, I presented the negative test as well. The point was that the State wanted to show the drug test as a habit. My test was designed to show that this was not the case. We presented the test as well as my client’s attendance in Cocaine Anonymous.

Needless to say, the objective was not to end the case at this point. It was to prevent my client from going to jail. He did not, though that was the closest we got to it.

I’ve never believed in the impossible situation. There are probables and less probables. My client was honest so I could adequately prepare. The facts were known and were prepared for. Without that preparation, he would have gone to jail.

If you have violated your conditions based in non-payment of fees, you may not have as many options.

When I was a prosecutor I remember a defendant came in for non-payment. The judge was not in the most charitable mood that day either. She asked him if he could pay and he said no. The judge then asked why he hasn't been able to pay any costs in months and he replied that he wasn't working. The judge converted the remainder of his fees to county time. Noting that this was 2 days before thanksgiving and the defendant would be in jail until right after Christmas, I asked the judge to reconsider. She did not.

I've always had a problem with a money fine being turned into county time. In my mind that means the only reason you're in jail is because you're not rich. I don't believe in debtors prison. I think it's wrong and I think your acts and not your job should determine your punishment. Call me a little idealistic, but you won't be able to change my mind.

So what do we do in this situation? Fees may be owed to the clerk, social services, ADAS services(the DUI evaluators), or probation.

Here's the rule again: “[i]f it is not documented, then it didn’t happen as far as a Judge is concerned."

Again, you have to be honest with your finances. If you can come up with something, then do so. If you cannot, I use an affidavit that family law attorneys use. I don't like the forms a public defender will give you because they are not extensive enough for me. The form will outline gross vs. net income and where your expenses are. I am NOT an accountant. The purpose of this form is to show the Judge the general outline of your finances.

On top of showing where you are, the Judge will want to know what you're doing about it. If you are out of a job, I ask client's to keep a job diary that can be presented in court. We used to use those all the time when I was in child support court. It doesn't have to be formal, but it needs to be filled out.

If you have a job, then you need to show why you haven't been able to make a payment. Again, this lets me prepare and say something to a Judge. The reason is never, "I forgot." Even if it is, I have a work around for that too.

So, in all, for financial situations show why it happened and what you're doing about it.

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