Kevin
Welcome back to the Kelly & Kelly Law Podcast. I’m Kevin with Borealis Digital Marketing, and I’m joined once again today by attorney Mike Kelly, head of the Criminal Defense Department at Kelly & Kelly.
How are you doing, Mike?
Mike
Good to see you, Kevin. Thanks for having me on again.
Kevin
Likewise, great to see you during the holiday season. Today we’re going to be diving into a serious but misunderstood topic that’s “probation violations in Michigan”. Probation violations can carry very real consequences and we’ll be talking about this.
So just to start us off, Mike, what constitutes a probation violation?
Mike
Well, I’m glad we’re talking about this, Kevin. In fact, I just got off the phone with somebody who called me and said, “Mike, I think I might be in violation of my probation.” You know, how do I know? And the easiest way you can do is you got to look back at what the terms or the order of sentence provided from when you were originally placed on probation. There can be things that are simple things like you’re going to maintain employment, continue with school, show up for court as directed, not commit any new crimes. And then there can be things that are more specific to the offense that you committed. There could be things like no contact with a certain individual if they were a domestic violence type of situation, or if there was an assault of offense that you not possess firearms or any weapons, or things that have involved a substance like drugs or alcohol that you not use, and that you submit to testing for any alcohol or drugs that may have been related to the underlying charge.
So types of violations, again, can be from technical issues like court dates, check-ins with probation, to more substantive things like failing a drug or alcohol test, possessing firearms or showing up and approaching somebody or contacting somebody who you’ve been instructed not to contact.
Kevin
So it sounds like there’s things, ones that violations that are more serious, of course, if you committed the same offense, I imagine that’d be a lot more serious than maybe being 30 minutes late for a urine test after a DUI or something.
Mike
Well, let’s be clear. The judge is gonna tell you all violations are serious. And quite frankly, the judge will also say, you don’t get to decide the terms of your probation. You don’t get to say, “well, I had work. If you want me to pay the fines in this case, I gotta be able to get to work. And if that means I gotta drive” and you don’t have a valid license to drive and you take that risk, well, your compelling circumstances may be an argument that you have, but it doesn’t necessarily cure the violation itself. But there are these two levels of violations that we have, where you have more technical violations. Maybe you forgot to do something on a timely basis, but you still did it.
For example, you may be required to submit to a test by a certain period of time, but you were on a portable device per se, and you were a few minutes behind. It showed you still took the test and showed that you were not consuming alcohol, but the time that you submitted it again was late. And likewise, to my original scenario, you don’t get to decide when you test, the judge does. And there’s reasons that they provided you when to do that. Or missing a payment, something like that, could be more technical, that these are issues that would be more easily cured, that aren’t of the type where the judge is really concerned about the behavior that brought you in under the court supervision, and that you’re continuing to persist in that behavior while under the court supervision. So the latter category is the more substantive violations, like committing a new offense of the same kind, or any kind really, while you’re on probation, or really submitting to a drug or alcohol test with those types of cases that shows that you were positive for those substances. Or again, going out and doing something that’s related to, getting a firearm, contacting or approaching, saying you’ve been told not to approach or contact.
These are substantive violations that are directly against the orders of the court, and they align, the reason the court put those in place, because those are the types of behaviors that got you in trouble in the first place.
Kevin
That’s fair, that’s fair, it’s great information. And so, I guess it matters what type of violation you commit, but generally speaking, what happens after a violation?
Mike
Well, so this is the question that my client just had on the phone, what’s gonna happen next? And we may be able to track and stay ahead of this by checking with the court, or checking on their website, say, hey, is there any violation filed? And that would be in the form of a show cause violation. So the court, through your probation officer or an agent of the court, if they believe you to be in violation of the orders of your probation, they have to file a request that’s known as a show cause, which commands you to come into court to show cause as to why you should not be held in violation based on the allegations presented.
Now, this is very similar to the original court process that landed you in with probation to begin with, but you do have a right to have a hearing on that violation if you can test it. If it’s something like a missed test, right? And let’s say for this example, let’s say you missed your test by a couple hours, right? And again, it’s a technical violation that you didn’t test when you were told to, but you did still submit that test to at least show that you weren’t drinking is the reason you missed it, or perhaps maybe you had a makeup test, or maybe you’ve made every test before that for the last 30 days. And this just happened to be the one where because of some exigent circumstances, you weren’t able to do on that particular day. Well, you could have a hearing on that, and you have a couple options at that hearing. You could admit to the violation and ask to be heard in response to the violation prior to being sentenced on the violation.
I mean, that’s where you say, yeah, I did it. I want to tell you why I did it. And of course, that’s great, but just like your plea, you’re gonna have a plea and then you’re gonna have sentencing. Those will happen right after each other. Usually happen in the same day. But the court, if you’re admitting to the violation or what we say admit with explanation, the court would provide you an opportunity to address and respond to, I did it, but this is why, or this is what was going on. You would still have that violation entered against you, which in the court of law is a contempt binding. Finding you in contempt is finding that you were in violation of a legitimate order of the court and that there wasn’t any majorly curable remedy that made it go away. So you could admit or admit with an explanation, or the third option is you could deny. You could deny the violation and the probation officer and their agents that could be a representative from the testing facility. That could be the victim or complaining witness that says that you approached them. That could be the police that detained you, or asked you to submit to a test on a separate matter. They would then have the burden to prove that you in fact were in violation of your probation, that your orders were X and that you did in violation of X.
So at that hearing, again, if you’re found to be in violation, you would then be in sentencing. If they find that you were not in violation, if you said, hey, I did this, but here’s the reason why and the judge found that there was good reason why, let’s say, you know, it was, I don’t know, something like missing the test by a minute or two. They said, you were shown not to have taken a test. And you showed, no, I did take a test, but I just took it late or something like that.
Kevin
And they slept in or something.
Mike
You slept in, right? And you’d be able to show, I didn’t miss because I was drinking, I missed because of some other issue. And some of these too, like you get some examples and everybody for some reason goes out there and looks on Reddit or Googles, like what are defenses and the court’s aware of those things too.
Kevin
I’m sure.
Mike
There can be legitimate reasons for like a false positive alcohol or drug test. There are some of those reasons that you would need. And that’s something that you would certainly want to consult with an attorney to talk about, do I have a defensible cause on this case? Is there a legitimate reason? Like there’s one case I had in the past where the probation officer said you failed to show up for an appointment. And they said, “I gave you a probation reminder card.” And my client said, “you never gave me a card. You never gave me a card.” So it was his word versus hers or vice versa scenario where probation officer gave my client an appointment card but wrote a different date on it.
And I said, hey, how could my client possibly have this card with a different date on it? And in that case, the judge has to decide whether or not to find a violation or not.
Kevin
I’m sure that helps that you had the card.
Mike
Right, but those are things that again, we have to explore your individual circumstances. And in most cases you’re gonna be making a choice pretty early. Is this something that you can admit with an explanation? Or is it something that you can firmly deny? And do you really want to put the probation officer in a position of having to prove that you still were in violation?
Kevin
I heard of a situation where the seeds on a bagel actually triggered a false positive for heroin.
Mike
The old poppy seed bagel thing. I’ve heard about it. You’ve heard about it. The judge has heard about it too. That there weren’t opioids in my system and it was actually just a poppy seed bagel. Well, these are the types of things that they would have to show at a show cause hearing how in fact it was this and not a poppy seed bagel. I had a case somewhere where a client used an inhaler for their asthma and then blew it to a breathalyzer. And they said, well, that’s why it registered as a positive alcohol reason. This is another thing I think they found online or read it. Well, the company that provides the breathalyzer actually did a study on using an inhaler and asthma inhaler and blowing that into the breathalyzer. And they published this study and they presented it to the court. And they were to say, even the guy who did it, he had asthma himself. So he was like, that’s why he had the inhaler. Was able to show that the numbers would have actually dissipated over five to 15 minutes. And the numbers in this case where the defendant was saying, hey, it was my inhaler, actually stayed more consistent with beverage consumption and weren’t incidental other residual alcohol from something that might be like an inhaler.
Kevin
Fair enough. Tough luck about the study that was published, I guess.
How can a criminal defense attorney at Kelly & Kelly help for probation violations?
Mike
Well, and I think you wanna have some of the obviously that has knowledge about your particular court, your particular charge. And if they can, your particular probation officer, is this the type of thing that can be resolved? Or is this the type of thing that you really need to push it to the final, to the final medal? Understanding your court, your circumstances, how likely is the judge to send you to jail on something like this? What is going to be a likely consequence if you’re found to be in violation? Is there some benefit to you maybe accepting that partial responsibility or full responsibility with an explanation as opposed to saying, I didn’t do it? I mean, the hard part about probation violations is that usually the court says you were told exactly what to do and what not to do. And it’s rare that you find something that’s truly in these edgene circumstances, these special circumstances where they say, “hey, I was doing everything I was opposed to and there was some anomaly here.”
If your case is that anomaly, yeah, you absolutely need to fight it. And it’s really hard to be your best advocate for you to say, hey, I didn’t do it without looking so personally defensive against the allegation. I think you’re naturally as the defendant in a tough spot to explain yourself in front of the judge and the probation officer who already kind of slanted and biased against you. Anything you say is probably just to get yourself out of this as opposed to having an objective, reputable lawyer who says, judge, I know you, I know the court, I know my client, I know these types of scenarios, and it should look like this if it’s a violation, or it should look like this if it’s not. And we can help differentiate which category your case best falls into.
Kevin
This has been very informative. Thank you, Michael.
Mike
Absolutely. Hope to see you guys again soon.
Kevin
See you soon. Merry Christmas.
Mike
Yeah, happy new year.
