If you are convicted of a misdemeanor or felony in Michigan, you run the risk of being assessed a fine or being incarcerated for a period of time. However, the judge may elect to forego those severe penalties and, instead, place the offender on probation in the community where his or her sentence will be served. If the probationer follows all of the rules and conditions, reports to the probation officer when directed, and avoids new criminal behavior, then the probationer can complete his or her punishment without ever having seen a jail cell. On the other hand, failure to follow the rules or committing new crimes can result in the court revoking the probationary sentence and placing the offender in jail or prison instead. How much time can you spend in jail or prison for violating probation? Are you allowed to defend yourself against these allegations?
“[T]he granting of probation is a matter of grace requiring the agreement of the probationer to its granting and continuance.” MCL 771.4(1). There is no right to receive probation upon conviction, nor is the judge require to continue probation when the offender violates its terms. Generally, “[i]f a probation order is revoked, the court may sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made.” MCL 771.4(5). For example, if you were convicted of assault and battery and you received a six-month probation sentence, but you violated the rules four months in by committing a new crime, then the judge can revoke the original probation and give you the statutory maximum of 93 days in jail. In addition, the court MUST revoke probation if the offender violates Michigan’s Sex Offender Registration Act. MCL 771.4a.
Effective April 1, 2021, the Michigan Legislature passed a series of criminal justice reform laws that, in part, minimized the possible jail time that can result from committing a technical probation violation. “Technical probation violation” means a violation of the terms of a probationer’s probation order that is not listed below, including missing or failing a drug test. MCL 771.4b(9)(b). Technical probation violations do not include the following:
- A violation of an order of the court requiring that the probationer have no contact with a named individual. MCL 771.4b(9)(b)(i).
- A violation of a law of this state, a political subdivision of this state, another state, or the United States or of tribal law, whether or not a new criminal offense is charged. MCL 771.4b(9)(b)(ii).
- Consuming alcohol while on probation for a felony conviction of operating while intoxicated. MCL 771.4b(9)(b)(iii).
- Absconding by intentionally failing to report to the probation officer or advise of his or her whereabouts for a continuous period not less than 60 days. MCL 771.4b(9)(b)(iv).
The maximum penalties for a technical violation committed by an individual who is on probation because he or she was convicted of or pleaded guilty to a misdemeanor are as follows:
- For a first violation, jail incarceration for not more than 5 days. MCL 771.4b(1)(a)(i).
- For a second violation, jail incarceration for not more than 10 days. MCL 771.4b(1)(a)(ii).
- For a third violation, jail incarceration for not more than 15 days. MCL 771.4b(1)(a)(iii).
- For a fourth or subsequent violation, jail incarceration for any number of days, but not exceeding the total of the remaining eligible jail sentence. MCL 771.4b(1)(a)(iv).
The maximum penalties for a technical violation committed by an individual who is on probation because he or she was convicted of or pleaded guilty to a felony are as follows:
- For a first violation, jail incarceration for not more than 15 days. MCL 771.4b(1)(b)(i).
- For a second violation, jail incarceration for not more than 30 days. MCL 771.4b(1)(b)(ii).
- For a third violation, jail incarceration for not more than 45 days. MCL 771.4b(1)(b)(iii).
- For a fourth or subsequent violation, jail or prison incarceration for any number of days, but not exceeding the total of the remaining eligible jail or prison sentence. MCL 771.4b(1)(b)(iv).
If more than 1 technical probation violation arises out of the same transaction, the court shall treat the technical probation violations as a single technical probation violation. MCL 771.4b(5).
The court is not allowed to revoke probation on the basis of a technical probation violation unless a probationer has already been sanctioned for 3 or more technical probation violations and commits a new technical probation violation. MCL 771.4b(4). This means that the court must reinstate the offender on probation after the temporary incarceration is completed. However, the rules for technical probation violations do not apply to offenders on probation for domestic violence, stalking or aggravated stalking. MCL 771.4b(6).
Upon the court being presented probable cause that the offender violated probation, the judge can either issue a summons for the probationer to appear in court for an arraignment on the alleged violation or issue a warrant for the probationer’s arrest. MCR 6.445(A). This means that the court can either send a notice to the probationer’s address compelling him or her to appear at a scheduled date and time or simply issue a warrant where the police will pick up the probationer and bring him or her before the court right away. However, there is a rebuttable presumption that the court should not issue a warrant for arrest for a technical probation violation and, instead, issue a summons or order to show cause to the probationer to appear. MCL 771.4b(7). The court may overcome the presumption regarding a technical probation violation and issue a warrant if it states on the record a specific reason to suspect that 1 or more of the following apply:
- The probationer presents an immediate danger to himself or herself, another person, or the public. MCL 771.4b(7)(a).
- The probationer has left court-ordered inpatient treatment without the court’s or the treatment facility’s permission. MCL 771.4b(7)(b).
- A summons or order to show cause has already been issued for the technical probation violation and the probationer failed to appear as ordered. MCL 771.4b(7)(c).
“A probationer who is arrested and detained for a technical probation violation must be brought to a hearing on the technical probation violation as soon as is possible.” MCL 771.4b(8). If the hearing is not held within the time-period of the applicable and permissible jail sanction for a technical probation violation, the probationer must be returned to community supervision. Id.
At the arraignment on the alleged probation violation, the court must inform the probationer of all the following rights:
- He or she has a right to contest the charge at a hearing. MCR 6.445(B)(2)(a).
- He or she is entitled to a lawyer’s assistance at the hearing and at all subsequent court proceedings, and that the court will appoint a lawyer at public expense if the probationer wants one and is financially unable to retain one. MCR 6.445(B)(2)(b).
- He or she has a right for the hearing regarding an alleged probation violation to be held within 14 days after the arraignment or the court must order the probationer released from that custody pending the hearing. However, if the alleged violation is based on a criminal offense that is a basis for a separate criminal prosecution, the court may postpone the hearing for the outcome of that prosecution. MCR 6.445(C).
The probation violation hearing is held before the original sentencing judge to determine by a preponderance of the evidence that the probationer violated his or her terms of probation. “Hearings on the revocation must be summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials.” MCL 771.4(2). There is no right to a jury. “The method of hearing and presentation of charges are within the court’s discretion, except that the probationer is entitled to a written copy of the charges constituting the claim that he or she violated probation and to a probation revocation hearing.” MCL 771.4(4). If the offender is not guilty of violating probation, then he or she is reinstated on probation. If the offender is found guilty of one or more violations, then the court can pass sentence consistent with the law.
If you are accused of violating probation, you need a skilled criminal defense lawyer in your corner that can help you persuade the judge to keep you out of jail or prison. Some possible defenses to a possible violation include the following:
- The rule or condition was too unclear or vague.
- The violation was unavoidable (e.g. probationer couldn’t report because he or she was hospitalized to due to a medical emergency).
- The probationer substantially complied with the terms and conditions of probation and, with a little more time, can come into full compliance (e.g. fines and costs not entirely paid and community service not entirely finished).
There is too much at stake to take a chance on a substandard defense. If you or a loved one is accused of violating probation and needs legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.