When you receive notice an allegation of probation violation, you should immediately engage the services of a trusted lawyer to help you, such as attorney Daniel Hilf. A conviction for probation violation (also referred to as a VOP or a violation of probation) places you in the difficult position of being at the mercy of your Judge. For a probation violation conviction your Judge is allowed to impose a new sentence that is harsher than what your originally received. Some Judges may be more forgiving and will consider providing you with a second chance to comply. Other Judges will not hesitate to impose a sentence that will cause an extreme hardship to you, your family, and your future. The type of legal representation you receive may be the difference between going home and serving time in jail or prison.
Your Judge has any of the following options once a conviction for probation violation is entered:
You always have a choice in the way you take care of the probation violation. One choice is to not have a hearing and plead guilty. the other option is to demand a hearing. For either option a lawyer is recommended. VOP Lawyer Daniel Hilf will gives sound advice and formulates (with your help) a well thought out strategy, if retained.
If you choose to go to hearing, you have the following legal rights:
To effectively fight a probation violation and to exercise these rights, you should never choose to self represent. Without a doubt, you need the help of a great VOP lawyer to represent you in Court.
An arraignment, where the Judge has the option of setting a bond, and will select a hearing date. Defense counsel may request a delay for a number of important reasons including: need to subpoena witnesses to testify; need for additional preparation; desire to consult with an expert witness and possibly retain his/her services; scheduling conflicts; waiting for a pending criminal matter to resolve; etc.. If a new criminal case is the reason for the probation violation, and that charge is dismissed, it does not mean that the violation of probation will always go away. In some instances the prosecution still has the ability to go forward even with a dismissal. The reason for this is due to the fact that the burden of proof for a probation violation (preponderance of the evidence) is easier to prove that the burden of proof for a criminal charge (beyond a reasonable doubt). Also, the reason for the violation in many cases is due to prohibited conduct and not necessarily upon a conviction. For example, if a person’s new criminal offense was for driving while intoxicated, upon dismissal of that charge the violation may be based upon the probationer’s alleged use of alcohol (if the person was ordered to not consume alcohol while on probation).
Not paying money owed does not always mean jail. In Michigan the Court cannot incarcerate the probationer or revoke his or her probation unless the court finds that the probationer has not made a good faith effort to pay what was ordered, and that the probationer had the ability to comply without suffering a “manifest hardship”. A “manifest hardship” is a determination made by the Judge after weighing several factors: if the probationer is employed; the probationer’s employment history; if the probationer has the ability to gain employment; what the probationer is able to earn; whether or not the failure to pay was willful; what financial resources the probationer has; what are the probationer’s basic living expenses (shelter, food, clothing, child support, medical expenses, etc.); the existence of any other relevant special circumstances. An experienced and capable VOP lawyer will help you address your good faith effort to pay and “manifest hardship” with the Judge, when this is an issue.
At the probation violation hearing, some defenses may need help from an expert witness. An expert witness is someone who is determined by the Judge to have specialized knowledge in a particular field that may assist the Judge with a relevant issue. For example, if the issue is whether the probationer consumed alcohol, and the probationer believed the reason for the positive test was based upon alcohol fumes at a work site, an expert witness may be able to convince the Court that the probationer’s explanation is possible and the positive test result was not likely due to voluntary consumption of alcohol. There are many hurdles when it comes to presenting a defense involving an expert witness, which should only be undertaken with the help of an experienced violation of probation lawyer.
If you plead guilty or are convicted by the Judge after a VOP hearing) the next step is sentencing. At sentencing the Judge hears from the Defendant, defense counsel, prosecution, probation officer, and the victim from the underlying case that led to your probationary sentence (if the victim wishes to provide a statement). Your VOP lawyer, if experienced and zealous, should be able to give you advice as to what to say and do to try and avoid a harsh sentence, and argue your case for mitigation to the Court.
There are practicing lawyers who claim to have experience with VOPs, but in reality do not have a strategy or plan to help you in the right manner. Remember, hiring the right probation violation lawyer is a very important decision, because you future may depend upon it.
If you have been charged with a probation violation or a crime, contact us immediately to begin working on your case.