Surviving Probation in New Jersey
How to survive probation in New Jersey
by Jef Henninger, Esq.
I handle a large number of VOP’s (violations of probation) all across New Jersey. While I have been incredibly successful with a vast majority of these cases, I recognize that the results I have received are not easily duplicated. Thus, I consider myself lucky that I can achieve such results. Why? Because VOP’s are almost impossible to win directly. Probation rarely files a VOP on the first violation. Instead they tend to pull the rug out from under the probationer after a number of violations.
So, a defense attorney is faced with the daunting task of trying to win 4, 6 or even 10 cases all at once. For example, maybe you can show that one dirty urine is wrong, but what about 3 dirty urines, 5 failures to report, failure to pay fines and a failure to enroll in drug treatment? It is usually impossible to show all of those alleged violations are wrong and all it takes is one. Furthermore, it is a summary proceeding with hearsay permitted and a lesser burden of proof. When I “win” it is usually because I became creative and explored every possible option. Most importantly, I never give up regardless of how difficult the case may be.
However, the purpose of this article is help you avoid a VOP and thus, avoiding the need to hire me to defend you. I do this because I care more about helping people than I do making money from something that, in my opinion, is entirely avoidable. I will focus on several key areas where people tend to slip up and how to avoid problems. Please be advised that this article should not be considered legal advice and should not replace the advice of an attorney or the orders from your probation officer.
This has to be the most common reason for a VOP. The bottom line is, you cannot use drugs. That much is obvious and I think everyone knows this. However, thousands of people each year are violated for using drugs while on probation. I believe this is because there are too many drug addicts that go on probation and try to quit cold turkey. If you want to clean yourself up, get in drug treatment now. I know that it easier said that done as most people need a wake up call. That is usually in the form of an arrest. Getting into an outpatient program from the moment you are arrested will not only go a long way to helping you avoid jail and prison, but it will help you adjust to a drug free life that will be expected when you are finally put on probation several months down the line.
I know a lot of clients that feel the need to binge before going on probation. Using up until the last second is obviously a bad idea. However, the real reason I think people go back to using is that they don’t change their behavior. Many addicts believe that they are strong enough to just stop. However, kicking your addiction is much more than a choice to stop. It is about changing your entire life from how you think to what you do and who you associate with. When in treatment, you will learn that your drug use stems from the people, places and things in your life instead of a simple yes or no choice. When you change the people that you use to hang out with, the places you use to go and various other things in your life associated with drug use, you will stand a much better chance of success.
Thus, starting drug treatment early in the process will give you time to adjust to your new life. When you are on probation, you must understand that are no excuses. I don’t want to hear about poppy seed bagels, cough syrups, prescription drugs or second hand marijuana smoke. Probation is not going to buy it and neither will the judge.
As I previously said, Probation may not violate you the first time. Thus, you may not wind up in court on the first dirty urine. However, if you give a dirty urine you should do two things right away. First, call an attorney and I mean that second. Cancel whatever you had planned that day and find an attorney that will see you right away. Once you retain that attorney, work with him or her to get you retested by someone else no later than two days after that test. Of course, the sooner you can be retested the better. Having a separate agency test you almost immediate is the only way you stand any chance in arguing that Probation’s test is inaccurate.
Failure to report
This one always amazes me as it has to be the easiest. Nevertheless, I’ve rarely seen a VOP that did not include at least a few failures to report. You must make probation the most important thing in your life. Nothing at all is more important, not even work. Your work must know that you have an obligation that is more important. I also don’t care about traffic or your car breaking down. I can’t remember that last time my car broke down and yet, it seems that many people with a VOP have car problems. Have your car in working order, have a cell phone and have the name of a good taxi company.
I see a lot of problems with people trying to reschedule their appointment. They say they called and probation says they didn’t. Again, you cannot miss an appointment for any reason and you should call and reschedule only if you are in the hospital. If you do have to call out, you should do everything you can to speak with your probation officer before your scheduled appointment. If you can’t get a hold of the officer and you speak with someone else, get the name of that person and their title. Keep a log of the time and date that you called. Then, get a hold of your probation officer ASAP and confirm everything with them. Next, send a confirming letter via certified mail to your officer confirming who you called the first time, the date and time as well as the date and time that you spoke to the officer. Be sure to confirm everything they said as close to verbatim as possible. Keep a copy for your records. Again, this should be the last resort. I know this sounds like a pain, but at least you can give your attorney some great ammo if a VOP is ever filed.
Proof of employment, school, drug treatment, etc.
As I indicated above, I suggest personally handing proof of employment and anything else that probation requires to your officer in person and then again via certified mail. When you hand it to your officer in person, ask if it is sufficient. If it is, include that in the confirming letter. Don’t forget to keep copies in your own file.
Speaking of employment, an under the table job will not suffice unless the employer is willing to write you a letter that essentially implicates themselves in criminal behavior. Of course, that won’t happen so you need a legit job. Even in this economy, someone is hiring even if it is fast food for minimum wage. If you cannot get a job, you still have to try. Keep a log of all jobs that you applied for and send that to your probation officer. Since you are out of work, you should have nothing else to do all day so applying for a job, should take up at least 30 hours of your week.
You have to pay your fines there is just no way around that. There is no excuse for not paying anything. Save some money before you get on probation and keep that solely for probation and nothing else. This way, if you lose your job you will still have some money to pay fines. If you can’t meet the payment schedule that was originally set up ask your probation officer if you can adjust it.
If you follow all of the above, 95% of all reasons for a VOP will be avoided. If you even think that you can be violated, it is important to call an attorney right away. Waiting can lead to problems. Make sure that attorney is going to fight for you. Ask for examples of prior cases. Too many attorneys just give up and have no defense. If you have no problems at all, there is a good chance that you can terminate your probation early. If you have completed half of your probation with no violations and your fines paid in full, call an attorney to discuss an early termination.
About Jef Henninger, Esq.
Jef Henninger is a New Jersey criminal defense attorney with office in Toms River, New Brunswick, Princeton and Eatontown. Jef practices in every court in New Jersey and his initial consultations are always free. No court is too far, no case is too complex. Jef is also a litigation consultant on criminal matters for clients and other attorneys in New Jersey and across the country.
This attorney seems to really care about his clients. I wish someone had listened to me just once. I haven’t gotten in trouble in 6 yrs and I got hit with 6 months probation after I just discharged in 2010 after doing 2 and a half yrs. Because of a computer error and the lack of communication between 2 states..now tomorrow I will probably be violated for smoking pot. Something I have done my whole life and no matter where I go I meet the same types of ppl. I know nj is trying to decriminalize it as I type but it won’t be fast enough for someone like me with high anxiety and doesn’t want to take xanax, valium, or a pill to calm down. Sorry i’d rather relax and smoke a joint then be staggering around after a half gallon of whiskey, which is “legal” .probably headed to prison again..without ever having a single drug charge