Successfully Defending a Probation violation
So you’ve been charged with violating your probation. Everyone you talk to has a friend who knew somebody that violated and they think they can tell you what to expect. The truth is only someone who routinely appears before the judge that you will face can tell you with any confidence what the consequences are likely to be. Consequences of violating your probation can range from simply reinstating your probation to the court, or placing your suspended sentence into effect which means serving your entire sentence. Judges have wide discretion with respect to probation violations because you have already waived most of your rights when you pled guilty to the underlying charge and have already agreed to serve the entire sentence if you were to violate any of the terms or conditions of probation.
If your probation is a result of Pretrial Diversion or Post Plea Diversion a.k.a. Judicial Diversion, then you have some advantage over a person who is on probation without diversion in place. In these instances, you have not yet been sentenced and have not yet agreed to serve the balance of any sentence in the event that you were to violate your probation. With respect to Pretrial Diversion you have not yet entered a guilty plea and the prosecutor would then proceed with prosecuting the underlying charge and you will have foregone the opportunity of having the matter removed from your criminal record by entry of an Expungement Order. You would be eligible for probation in the event that you were convicted of the underlying charge. Conversely, with Post-Plea Diversion or Judicial Diversion you have already conditionally entered a plea of guilty, but the judge has not yet entered a judgment of guilty in your matter. If you have violated your probation with respect to a conditional guilty plea pursuant to Post Plea Diversion or Judicial Diversion the court will then revoke your eligibility for diversion and enter the judgment of guilty which you have already given pursuant to your conditional plea of guilty to the underlying charge. The prosecutor does not need to continue with proving that you’re guilty of the underlying charge. The court would then proceed to a sentencing hearing at which, while you would be eligible for probation, you will have already demonstrated to the judge that you might not be a good candidate because you have already violated probation.
In order to be successful on probation a person must correct the lifestyle factors which lead them into criminal court in the first place. Whether it was mere immaturity, addiction or a bad relationship that led to your arrest; unless you have corrected this in your life you stand little chance of completing your probation without a violation. Similarly, in order to demonstrate to the court that although you have violated your probation the judge should reinstate your probation you will need to convince the court that any threat of you violating the terms of your probation in the future has been eliminated.
If you have failed a drug test by testing positive for an illegal drug or intoxicant any good attorney is going to have a very matter-of-fact conversation with their client and try to determine whether the client is suffering from addiction. Whether I believe there to be addiction or not I’m going to send my client to a reputable drug and alcohol counselor to be assessed to determine if my client suffers from addiction. In the event the client does suffer from addiction and that is the reason for the positive drug screen then I will have to consider my clients options with respect to treatment. While inpatient rehab is an obvious choice, it is not realistic for many middle-class and working-class individuals. A wealthy or unemployed individual with no children may have 28 to 90 days of available time to devote to managing their addiction and working on their personal health issue. For the rest of us, a solution that allows a person to keep their job, pay their bills and continue to care for their children and family while still managing to correct their addiction disease effectively must be sought. Certainly, Alcoholics Anonymous (AA) meetings or Narcotics Anonymous (NA) meetings should be considered as an integral part of recovery. Despite its moniker as anonymous, frequently people are required to obtain signatures as verification of their attendance as a condition of probation. This can be done whether it is a condition of your probation or not and is helpful to have when trying to demonstrate to the court that while you did violate your probation, you are now taking your recovery seriously. Also, in the event that a person has not yet become addicted, but was abusing illegal drugs, alcohol or another intoxicant while on probation, having attended several preferably consecutive Alcoholics Anonymous meetings or Narcotics Anonymous meeting can help demonstrate to the judge that the maturity issue is being addressed and that the client is obtaining a valuable life education by witnessing the affects of drugs and alcohol on those who have become addicted.
Judges are human beings and cannot help but feel as though a violation of probation, for a positive drug screen positive for substances such as marijuana or cocaine and other drugs when a person is not an addict, as disrespectful to the court and maybe even the judge him or herself. In order to overcome this presumption, it is often necessary to reinvent your client. I have sent clients for haircuts. I’ve sent them to Joseph A. Banks or Men’s Warehouse to buy a suit. I have had to tie my client’s tie. I’ve had to tell clients to buy a toothbrush while the judge is on break because the witness stand is mere feet from the judge. There is no limit to the ends to which an attorney may have to go in order to polish their client’s image into what is necessary to impress the court. I often say to a client about to appear before a judge that I want this judge to look upon the client and think they’re looking at his or her own son or daughter and smile proudly.
Part of reinventing your client of course includes correcting their lifestyle as mentioned above. You need to eliminate a lifestyle and pressures that led your client to violate probation in the first place. If the violation results from a new arrest for Domestic Violence Assault, Telephone Harassment, Violation of an Order of Protection or a DUI because the client was driving as a result of a fight with a spouse or romantic partner; then the attorney must evaluate the health of the relationship and advise the client accordingly with respect to ending the relationship or seeking the appropriate anger management or relationship counseling and even consider batterers intervention programs for the batterer or the victim whichever the case may be. Reinstating probation without correcting the problem that led to the violation would only see the client returning for a second violation and a less sympathetic court.
Many times people violate probation by simply not appearing to meet with their probation officer. While this is just stupid, it is probably the most common violation. If the person has been rearrested or knows they will fail a drug screen and that one is likely to be administered, then it is understandable why a person would be apprehensive about appearing for their probation meeting. This does not, however, excuse the behavior because it will only compound the problem. A defendant who has walked into his probation officer’s office and said I used an illegal drug last weekend, and will probably test positive will receive far more compassion from a judge than one who has failed to appear for their probation meeting, causing the police or sheriff’s department to waste their time and resources tracking them down. Likewise, a rearrest or citation is not a conviction. This may not result in a violation of probation warrant being issued, but may lead only to a probation officer monitoring the situation and awaiting the outcome of the new charge. Sometimes a violation is issued and served upon the defendant, but prosecuting the warrant is delayed until the outcome of the new arrest has been determined. This type of violation, much like testing positive for marijuana, often stems from a lack of maturity in the defendant.
Maturity issues are much easier to address when dealing with a youthful defendant. Although the age of maturity within the eyes of the law is 18, Americans are becoming less and less responsible and accountable for their actions as each generation moves forward. While your presiding judge was probably working his or her way through college at 21, there is a good chance that his or her 21-year-old son or daughter is on the couch at the house right now. Judges recognize that a person who has not yet really entered the real world may not take the affect that violating their probation would have on their future as seriously as they should. This does not give a person a pass; it only helps to understand the eyes through which a judge may be looking at your client. I have required clients to complete a GED program, get a haircut, apply for as many jobs as it takes, enroll in high school, community college or a university and even submit themselves for volunteer work at places such as Animal Control or Habitat for Humanity.
As I touched on above, depression and other mental illness issues may also affect a person’s success or lack thereof with respect to probation. A person suffering from depression may feel powerless as to meeting and completing all of the terms and conditions of probation. Sometimes with probation, anger management classes, or drug and alcohol counseling, are required or other tasks which must be performed, such as community service. Failing to do these in the time allotted will result in a violation of probation. Conversely, expecting a person suffering from depression or other mental illness to complete these tasks without help may be unrealistic. When representing clients that are or appear to be suffering from depression or other mental illness is important to have them properly evaluated before appearing in court. Once the problem has been identified by an appropriately credentialed individual, a plan must be laid before the court to demonstrate how this person can accomplish probation and meet all of its terms and conditions without any further violation. While difficult, this can be accomplished and requires a dedicated compassionate attorney, who recognizes the unique challenges a defendant may have and who has the experience to see it carried out. Truth be told, if the attorney who handled the client’s underlying charge had taken the time to identify the client’s particular disability, the person may not have violated their probation in the first place.
If you have been charged with a probation violation or believe that a warrant may be coming soon, please feel free to contact me at 615-599-7719 or Contact Us by clicking here.
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By John Milazo