Courtney reaches out to be about a drunk driving case, indicating that she failed to do some testing, and must go see the judge in two weeks. I reach out to Courtney for some clarification on her legal issue, as what is she is explaining could be two different things: a bond or a probation violation.
A bond violation occurs prior to sentencing, while a probation violation happens when you have already been sentenced, and currently on probation; for Courtney, it turns out to be a probation violation.
I ask Courtney for a series of information, including her original sentencing terms of her case, the court, the judge, her probation officer’s name, and any paperwork or order received from the court indicating the allegations of her violation.
It turns out that Courtney received the default/standard drunk driving sentencing, because she did take any proactive steps with her attorney. I explain to Courtney that her original sentence appears to be pretty standard, but I provide her a little background on what she would have done if we worked together initially, and how we could have shortened her probation, and many of the terms which are now giving her issues while on probation.
Courtney is upset that things detoured and explains that she simply did not really understand how her testing worked, and her obligations to the court. She wishes she had been proactive and more on top of things earlier in the case but appears open to making some changes.
It turns out that Courtney was placed on random testing for both drugs and alcohol; she has had no issues with drug testing for the first four months of probation but has various alcohol test violations. Some tests she failed to appear for, a diluted sample and one positive test.
When placed on probation for something as serious as drunk driving, the judge is giving you a second chance in not sending you to jail. A chance to go on probation, comply with sentencing, and work on a series of steps in hope that you do not put yourself and others in danger again.
I typically have clients accomplish many of these steps during their case with the goal to avoid them being part of the sentence, because it opens pitfalls and opportunities to violate even with the best intentions.
I explain to Courtney how the judge and prosecutor now view her case.
She was given a chance to comply and succeed, but now she’s testing positive for alcohol, potentially trying to “game the system” with a diluted sample, and showing she is irresponsible and not a dependable trustworthy person who can show up and test.
As a former prosecutor and defense attorney, I’ve heard it too many times from the judge “there is one place where I know you can’t drink, and that’s jail”; Courtney is scared by this, but understands that her actions have consequences.
Courtney now has a decision to make; does she want to show up in the court, apologize? Deny? Cry? Not sure? The options are typically not great for someone like Courtney, because she knows that she messed up, and now she wants another chance?
By going in with no plan, you give a judge no choice but to “send a message” and lean toward punishment such as jail, extension of probation and other sanctions. Unfortunately, this is what most people do when they violate probation.
They already have not done anything to impress the judge and prosecutor for their actual case; it was simply a continuation of the incident itself. Now they screwed up again. You cannot blame a judge for throwing Courtney in jail, and the entire hearing becoming an extremely uncomfortable and unproductive day for her.
But what if there was a different approach? We cannot go back in time and be proactive for the initial drunk driving case, but we can take the current situation, and apply many of the same principles.
Courtney is alleged to have done three different things. Drinking alcohol, not showing up for testing and possibly trying to game the system with a diluted sample. I can already hear and see the judge berating her over each issue.
Now that we are working together, and she is onboard with being proactive, we will use the two weeks prior to court in order to better position her case.
The first thing we do is begin using a portable alcohol testing unit. This will not replace her scheduled testing for now, but the goal will be to test above and beyond what is ordered, test perfectly, and ask the court to adopt the new comprehensive testing as her new means to alcohol test.
If one of Courtney’s issues was missing tests, being late, and not being responsible, well now she has a testing unit with her at her home, and she has no excuses. It will also make her text 2x daily (14 total tests) vs 2 tests per week.
A judge will be impressed that she stepped up to the plate and solved one of the issues on her own. A judge can also adopt our testing as a sanction; testing 14 times is more than 2, so we can call that a penalty, right? By suggesting the penalty, and self-imposing we are now taking the pressure off the judge to act.
We do not stop here, because she did test positive for alcohol while on probation for drunk driving; that is a serious violation of the judge’s trust and violation of a court order. Most judges will impose jail for this violation.
We need to create “jail alternatives” so a judge is not inclined to send Courtney to jail. We do this by self-imposing additional community service hours, and we sign up for a special alcohol weekend program, which 100’s of my clients has attended with great success. I send the referrals to Courtney, and she gets both in place.
With only two weeks before court, we may not be able to finish these additional sanctions, but by starting them or signing up, we can let the judge know what we’ve put in place, and ask for those to be the “punishment”.
Because Courtney has followed my plan, we are now in a particularly good position to take the sting off her violation. Depending on the court, we may send these updates to her probation officer, or wait until she meets with the probation officer the morning of court.
Ultimately the probation officer will recommend something to the judge; we want to influence this recommendation and get the probation officer in our corner. We will have the opportunity to review this recommendation at the courthouse and prepare to address the court.
We will either be asking the judge to follow the recommendation if the probation officer adopts our sanctions or arguing against the recommendation if the probation officer is still seeking jail. Based on my years of experience, if a client steps up like Courtney did, we stand a very good chance of walking out of the courtroom with a deep breath, and a lesson learned that self-reflection and action are the best means for re-taking control of your case.
DUI Attorney & Former Prosecutor Jonathan Paul