OK, so you got a great deal. Maybe you didn’t get a great deal, but hey, your lawyer said it was a good idea, so you went with it. Case over. Now you’re on probation. No sweat, right? Guess what, now the work is up to YOU, not a lawyer.
Minnesota, relative to other states, has a pretty generous sentencing structure. First and even second time offenders can often have most or all of their jail time stayed pursuant to certain “conditions.” Our justice system views this as a “second chance”, a chance for the defendant to reform their ways and demonstrate law abiding behavior. Unfortunately, sometimes a probation violation can happen faster and easier than one thinks. Once a person is arrested or summoned on a probation violation, the very real danger of jail time is at hand. Jail time was stayed on particular conditions, and if those conditions have been violated, it is presumed by many courts that jail time will no longer be stayed. It’s a system of second chances, but it does not tend to be a system of third and fourth chances. So if you’re on probation, here are some very concrete steps you can take to avoid probation violations, or empower an attorney to beat a probation violation if one is filed. These steps can mean the difference between freedom and jail.
1. They keep a file with your name on it, so make a file of your own.
One of the greatest problems lawyers face when representing someone in a probation violation is a lack of memory by the defendant and the absence of a timeline. Too often we hear from clients “I called and called my probation officer, and told him about my situation, but they never got back to me.” This is an actual problem. We hear it too often for it to be just manufactured out of thin air, and the fact is probation officers, like attorneys or anyone else, sometimes get too busy, or they just get lazy and don’t do their job. But in order for us to put the probation officer in their place, we need to be able to ask “isn’t it true that my client, Steve, called you on this day and this day?”
Keep a running file on everything relevant to you probation. It should serve as a detailed journal of sorts. Log every phone call you make to your probation agent by date and time. Look at your phone. Screen capture the outgoing call. If you want to be REALLY proactive, download an app to record your calls, and notify your probation officer that you record calls. In order for it to be admissible, you have to notify them in advance that the calls are recorded.
Save every piece of mail they send, and every letter you reply with. What’s that? You don’t write to your probation officer? That’s a shame, because while voicemails can be ignored and deleted, paper mail should be saved in their file. Need to send something right away? Be pro-active. Get their fax number, and go to a local UPS or Fedex store and fax the document to them.
Some folks email their probation officer. The advantage of this, of course, is the ability to track and save a conversation. The disadvantage can be the basic pitfall of the internet: Hasty and emotional responses that you may regret later. Be thoughtful and careful what you write to your probation officer. Don’t berate them, disrespect them, or make silly admissions thinking it will get you a better result. Keep your conversations short, professional, and pertinent only to scheduling and fulfilling conditions. NEVER admit a probation violation to a probation officer, even if they ask you directly about it. Contact an attorney first.
2. Always maintain regular contact with your probation officer.
Too often we see well-meaning probationers who just get very busy, move, change phone numbers, and they fail to update their probation officer. It’s not enough to fill out a change of address with the post office. The probation officer has no obligation to track you down. You should immediately inform your probation officer IN WRITING of your new address or phone number.
If you have not heard from your probation officer in a while, don’t assume everything is fine. Be proactive. Contact them out of the blue at least once a month if you haven’t heard from them and ask whether there is anything they need from you. Write it down that you contacted them, and what their response is if any. No news is not always good news. If they can’t find you, they can violate your probation for lack of contact.
Do not miss meetings with your probation officer. You should make meetings with your probation officer an absolute priority, as much as getting to work on time or picking you kids up from school. Missed meetings can result in a violation. If you’re in jail, you can’t work, and you can’t parent. Put your meeting dates into your calendar on your phone and set alarms on it days in advance. Alternatively, write them down on your wall calendar or in a day planner.
3. Always remain compliant.
This sounds obvious, but if you’ve been asked to refrain from the use of drugs or alcohol, then absolutely refrain from them. Don’t hang around people that use. Tell your friends to respect your situation, and if you find yourself in a situation where drugs or alcohol are being used, know the contact information for any witnesses that can testify to your sobriety. Then remove yourself from the situation.
4. Be mindful of your online activity.
If you’re on probation, you need to be extra careful about your online activity. Your privacy settings on Facebook are absolutely worthless. Very simple hacks available to all people including law enforcement can enable anyone anywhere to see your entire profile. If you post pictures of you drinking with friends, that can result in a probation violation. You may be prohibited from entering establishments that serve primarily alcohol. You may be on house arrest and you’re supposed to be at home. One check-in and tag from your pool shooting partner, and you’re busted. You’re on probation. You don’t get to live a completely normal life. Be ever aware, and guard jealously your freedom.
5. Keep your prescriptions current.
Many prescriptions can result in false positives for drug tests, and many controlled substances which are themselves violations are prescribed. A valid prescription is always a defense, but it helps if you simply provide a list of prescriptions to your probation agent. This will be useful in questioning should your lawyer ever need to appear in court on a probation violation.
6. Be wary of unusual dietary intake.
Certain unusual dietary habits can trigger false positives for drug testing. Taking large amounts of ibuprofen can cause one to test positive for byproducts of cocaine. The consumption of certain teas can result in false positives for heroin. Performance supplements from GNC and other places can result in false positives as well. Just ask anyone who plays a college sport. Many food additives can cause positive tests for alcohol, as well as excessively low blood sugar levels as a result of strict dieting. Document these things in advance and be prepared to demonstrate the timing of such intake and activity to a lawyer.
7. Have a second testing facility on call.
False positive drug testing is real. Don’t roll over and give up if you test positive for something, especially an instant test that hasn’t been yet verified by a lab. Any number of private vendors in the phonebook or online will conduct same day drug tests for a small fee. If you have multiple failed urine tests, and you are certain you have not used or been exposed to drugs, get a hair follicle test performed. Hair samples can demonstrate drug use dating back as far as 4 or 5 months.
8. Be ready to contact a lawyer immediately.
Never ever admit to a violation. If you even think you’re going to face a probation violation, contact a lawyer before it’s even filed or brought up at a meeting. An attorney is the only person sworn to keep any information you give him confidential, and he sees the big picture and the whole process and can best advise you what to do to avoid a violation, or lessen the consequences. A good lawyer should be able to give at least preliminary advice for free, but you should be prepared and save money up for the possible need to hire one if you face a probation violation. Examining tests and consulting experts to determine their validity is something a lawyer can do only after lengthy discovery requests and work, and that will necessarily cost some money. GPS and home monitoring units do have equipment flaws, and generally the button pushers at a monitoring company don’t have the knowledge to know how it actually works. Don’t take chances, this is your freedom. Guard well your liberty, and hire a lawyer.