Who should you believe - the Judge or your Probation Officer?

Who should you believe - the Judge or your Probation Officer?
(Be wary of the sucker bet!)

I represented a young female on her first offense DWI almost 2 years ago. To protect the innocent and the guilty, let’s call her Amber. As part of the standard conditions of dwi probation, Amber was NOT to use any drugs - unless prescribed by a licensed physician.

When Amber first met with her probation officer (we’ll call him Mitch), according to Amber, Mitch told her: “Since your charge is not a drug-related charge, I will not be asking you to submit to random drug screens.”

So, for the next 21 months, Amber continued her almost daily use of marijuana with no legal consequences. However, as happens frequently, Mitch (her probation officer) moved on to another job. Amber’s new probation officer, Carol, at their first meeting, asked her to take a “wiz quiz” (a drug test).

Guess what?? Yep, positive for marijuana!

As is the norm in this situation, Carol (the new probation officer), filed a violation report with the Court. Amber now has a new probation violation case against her. She must now appear in front of the same Judge she was put on probation by for her DWI. The Judge feels like Amber basically “flipped him the bird” by going against what he ordered. Amber must now explain to him why she went against his Order, and continued to use drugs when he ordered her not to. Amber needs to try and convince this Judge to give her another chance, allow her to continue on probation, and not just throw her in jail.

I don’t recommend that any individual attempt to do this on their own – hire a professional lawyer that regularly practices in the particular court and deals with these types of matters on a regular basis.

Once Amber hired me for her new probation revocation case, I immediately contacted Carol (her probation officer). I spoke with Carol about having Amber participate in some sort of remedial drug program – pointing out that Amber had never tested dirty before – and that this, in fact, was her first probation violation. I was trying to get an important favorable recommendation from Amber’s probation office. In my further efforts, to get a good recommendation from Amber’s probation office, I also suggested she get drug tested every week, and include in the test, the level of THC (the short version of the active ingredient in Marijuana) to show it was going down since this drug takes quite a while to completely clear your system (anywhere from 30 -120 days in some cases).

Amber’s THC levels showed a continued reduction each week, and finally, she had a clear drug test. During these weeks, I was able to continue Amber’s court date far enough down the road so she could complete her drug program and rack up some clean drug tests.

As of the date of me writing this blog, Amber has completed the drug education program and had 4 weeks of clean test results. Amber’s probation officer will be making a favorable recommendation.

Ultimately, it is the Judge’s call and as a practical matter you cannot argue “well Judge the PO said I did not have to follow THAT part of your order”. However, most of the time a Judge will follow the probation officers recommendations, especially if you can give the Judge a good reason too, in this case, I gave the Judge a two good reasons to: the drug class and clean drug tests.

If you are put on probation and your probation officer tells you can do something that contradicts what the Judge’s Order says, assume it’s a sucker bet. They also have the right to ADD conditions. If you have any question about your probation, call your lawyer.

In this case, failing to follow the letter of the law (The Judge’s Probation Order) put my client at risk for having to serve up to 6 months in jail, pay a $500.00 fine, and having a DWI conviction on her record. She also had to incur the expenses of the drug classes, the drug tests and attorney fees.

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