Legal Question in Criminal Law in Michigan

violation of probation for DWLS 2nd offense

I was convicted of driving while license suspended, second offense, last year. I was sentenced to 1 year in jail. I served 21 days of work release, and the rest was suspended. I was also placed on 1.5 years probation. I recently committed the same offense again. This is a violation of my probation. Does the remainder of the 1 year sentence automatically kick in, or is there some discretion that can be taken by my P.O. and/or the judge?


Asked on 2/26/02, 2:59 pm

2 Answers from Attorneys

Neil O'Brien Eaton County Special Assistant Prosecuting Attorney

Re: violation of probation for DWLS 2nd offense

All probation violation matters are "discretionary".

First, the probation officer has to bring it to the judge's attention ... which may not happen for every little violation.

Second, even if the violation is brought before the judge and the probationer is convicted of the violation, the judge has discretion on what to do about it. The judge could do nothing (i.e., continue probation and just "let you off with a warning"). The judge could impose a sanction mentioned at the original sentence (i.e, jail time held in abeyance). The judge could, essentially, resentence you for the original offense and impose any sentence up to the statutory maximum. Why? Probation is a "grace sentence", and by violating the probation terms you have not earned that grace sentence anymore.

When the probation violation is a repeat of the same conduct for which you were originally convicted, I doubt that the judge will let you off with a "warning" ... but it could happen.

Your sentence for the "PV" and your sentence for your new DWLS 2nd offense cannot run "consecutively", because they are misdmeanors. So, if you're going to be convicted of, and sanctioned for, both the PV and the new crime, try to schedule both for the same timeframe so you serve both sentences together --- a true "concurrent" sentence. Otherwise, if you are jailed for the PV (e.g., 27 days) and serve it while you're on bond for the new charge, you do not accumulate "credit for time served" on case #2. Why? Unless you're ordered into the jail for the second case (because your bond is cancelled or it's part of the sentence), your jail time attaches to the first case, not the second. Then, if you're sentenced down the road to jail time for case #2, you serve additional time.

I recommend that you consult with a criminal defense attorney before making any decision re: the PV or case #2.

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Answered on 2/26/02, 3:40 pm
Eric I. Kutinsky THE MICHIGAN LEGAL TEAM, P.C.

Re: violation of probation for DWLS 2nd offense

All probation violation sentences are discretionary. The Judge can do what ever s/he feels is appropriate for the violation. Sometimes they might even discharge (terminate) your probation and let the sentence on your new charge control. Please give me a call so we can discuss the matter further. 24 hours at (800) LAW-6685 or (248) 737-7000.

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Answered on 2/26/02, 6:15 pm


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