What’s the Difference Between a Violation of Probation and a Technical Violation of Probation?

Generally speaking, a violation of probation means that while on an order of probation you have done something the court ordered you not to do or failed to do something the court affirmatively ordered you to do.  A technical violation specifically means a violation of the terms of probation, and punishment for a technical violation is limited to 30 days in jail.

In Michigan, if you are on probation this means you have been convicted of a crime.  There are some differences between misdemeanor probation and felony probation, and this article primarily addresses felony probation.

Michigan Compiled Laws § 771.4 provides that “it is the intent of the legislature that the granting of probation is a matter of grace conferring no vested right to its continuance. If during the probation period the sentencing court determines that the probationer is likely again to engage in an offensive or criminal course of conduct or that the public good requires revocation of probation, the court may revoke probation.”

This is a very broad sentence and allows the court to revoke your probation and put you in jail for a wide variety of things.  In fact, if you’ve done anything, or failed to do something, and the court thinks that this behavior places the public at risk, then the judge can put you in jail.  This includes “antisocial conduct or action on the probationer’s part for which the court determines that revocation is proper in the public interest.”

If you are charged with a violation of probation, you do have some due process rights, but not the same way as when you were originally charged with the underlying crime.  Once you’ve been convicted and are on probation you no longer have the full panoply of Constitutional rights.  In fact, the law says that “hearings on the revocation shall be summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials.”

Furthermore, according to the law, you are entitled to a hearing and presentation of charges but this is within the court’s discretion.  The only exception is that you are entitled to a written copy of the charges constituting the claim that you violated probation and to a probation revocation hearing. At this probation revocation hearing, the court may investigate and resolve the matter as the court determines best serves the public interest.

If your probation is revoked, the court may sentence you to the same number of days or years as the court might have done if the probation order had never been made.  In other words, you’re placed back in the position you were in before you were sentenced and could, therefore, be facing a long period of incarceration if you are found guilty and your probation is revoked.

On January 18, 2018, a new law went into effect in Michigan, and this changes somewhat what is written above.  This new law is Michigan Compiled Laws § 771.4b. This new law covers “technical probation violations” and provides for limited and temporary periods of incarceration.

According to this law, a technical probation violation means a violation of the terms of a probationer’s probation order but does not include a violation of an order of the court requiring that you have no contact with a named individual or that is not a violation of a law and does not include the consumption of alcohol for someone who is on probation for a felony drunk driving.  For these limited instances, the above terms and possible periods of incarceration apply.

If those exceptions do not apply, then the penalty for a technical probation violation is a maximum of 30 days.  This 30-day period, however, applies for each technical violation. If you are found guilty of a technical violation the court cannot give you credit for any time served on a previous technical violation. Also, after you serve the period of temporary incarceration under this section, the court has the option of either returning you to the original terms of probation or may order you to begin a new probation order.  This is totally at the discretion of the court. This 30-day limit on temporary incarceration does not apply if you have committed three or more technical probation violations during the course of your probation. Again, in this situation, the court defaults to the above law (771.4), which provides for much longer possible periods of incarceration.

Also, the court may extend the period of temporary incarceration to not more than 90 days if you have been ordered to attend a treatment program as part of your probation, but a treatment bed is not currently available. Presumably, this would be the case if the technical violation involved the use of alcohol or drugs. In these limited circumstances, however, the period of temporary incarceration imposed must not extend beyond 90 days.

Finally, the law provides that if more than one technical probation violation arises out of the same transaction, the court shall treat the technical probation violations as a single technical probation violation for purposes of this law.