A probation violation can be anything as innocent as being a minute late for a court work program, to something as egregious as a new criminal conviction.

When someone admit to a probation violation, or are found guilty of a probation violation, the judge is given an opportunity to re-sentence the violator.

When a judge re-sentences a violator, the judge must sentence the violator within the minimum and maximum penalties for the offense the violator is on probation for. For example, a person can be ordered to complete up to 60 hours of community service and two years of probation on a first offense drunk driving. As long as the judge does not exceed the maximums, they can re-sentence the violator increasing their probationary term and community service as long as it does not exceed the maximum.

If a person is on probation with a special status such as HYTA, 7411, 769.4a, or a delay of sentence, then a probation violation could result in the removal of that special status.

Technical Violations of Probation

Under new law, Michigan House Bill 1050 Sec. 4b imposes limits to the amount of jail time a person can be given for a technical violation. Technical probation violations would include things like missing a drug or alcohol screen, testing positive for alcohol or drugs, missing a court ordered class, work program, or community service.

A person on probation will face the following penalties for a technical violation of misdemeanor probation:   

• For a first violation, jail term up to 5 days.
• For a second violation, jail term up to 10 days.
• For a third violation, jail term up to 15 days.
• For four or more violations, jail can be ordered for up to the maximum penalty allowable by the offense the person is on probation for.

A person on probation will face the following penalties for a technical violation of felony probation:   

• For a first violation, jail term up to 15 days.
• For a second violation, jail term up to 30 days.
• For a third violation, jail term up to 45 days.
• For four or more violations, jail or prison can be ordered for up to the maximum penalty allowable by the offense the person is on probation for.

Probation Violations (non-technical)

The more serious, or non-technical probation violations include the following:

• Absconding, if a probationer fails to report to their agent as ordered for more than 60 days, they are considered to have absconded.
• Violation of a No Contact Order
• A new arrest even if a no new crime is charged.
• Consumption of alcohol while on felony driving under the influence probation.

For these violations a judge is not confined to the jail schedule above and could order significant jail time for a first violation.

Depending on the allegations of the violation, there may be defenses for your probation violation.

The most common violations are missing court ordered community service, missing a court ordered class, missing a drug or alcohol test, or testing positive.

Things happen in life that you cannot always control, cars break down, you sleep in or your alarm doesn’t go off, sometimes even the most important things just slip your mind. It also isn’t uncommon for someone to screw up, have a weak moment, and given to peer pressure or their own desires leading to a violation. Sometimes a simple explanation to the judge can result in nothing more than a violation fee or even a dismissal of the violation.

It is also possible that the alleged positive drug or alcohol test was a false positive. In these cases we have had our client’s take a second test at a different lab. We have even gone so far as to have our client’s take a polygraph test to prove they didn’t cheat their probation.

Probation violations must be proven. A prosecutor must be able to prove the allegations of the violation by a preponderance of the evidence. A preponderance of evidence is much lower than the beyond a reasonable doubt standard at a criminal trial, but it still requires the judge to find more than a 50% chance that the allegations against the violator are true. If the allegations cannot be proven be a preponderance of evidence than the probation violation must be dismissed.

Probation can be up to 5 years long for felonies and up to 2 years misdemeanors, with a few specific exceptions for a longer probationary period. Just because a judge orders you to a term of probation does not mean that they cannot shorten that term later. Early termination of probation if very possible.

In April of 2021, Michigan Senate Bill 1050 took effect and now requires a judge to notify a defendant that they are eligible for early discharge once they have completed half of the probationary period and have completed all required terms and conditions.

If you are on probation and in full compliance, meaning that whatever has been ordered of you has been completed than early termination of probation may be available to you.

While the new law allows for termination of probation at the halfway point, we typically recommend applying for early termination of probation once you have served roughly 60 – 75% of your probation term, paid all fines and costs, and completed any community service, classes, etc.

Once your probation has been closed by the judge you are free to go on with your life without the court having jurisdiction over you.

Not all offenses are eligible for early discharge or probation. Under HB 1050 (10)(a) the following offenses are not eligible for reduced probation:

• Domestic Violence
• Stalking
• Great Bodily Harm Less Than Murder / Strangulation
• CSC 2, CSC 4
• Any offense that specifically says it is ineligible for early probation discharge
• Human Trafficking Violations of MCL 750.462a through 750.462h

This is not an all inclusive list there are some other offenses and conditions that may make a person ineligible for an early discharge of probation.