The biggest mistake I see lawyers make in Nevada probation revocation hearings is not knowing the law to protect their clients. Most lawyers think there’s nothing that can be done when someone who is on probation is facing revocation of probation.  Often a person is accused in a violation report prepared by Nevada Parole and Probation Department of committing a new crime.  Many times the violation report contains hearsay which is defined as an out-of-court statement being offered to prove the truth of the matter asserted.  Inexperienced lawyers don’t demand that the State produce the declarants of those statements because these lawyers don’t understand that you have an unconditional right to question and cross-examine the sources of the information in those violation reports against you.  In other words, if the arresting officer in the new arrest accuses you of doing something or saying something, he or she must be made present in the revocation hearing for your lawyer to cross-examine this witness.

You don’t have a right to a jury trial for your probation revocation hearing.  Your right to cross-examine is not as great as in a jury trial, but you absolutely do have the right to cross-examine the police officer who arrested you under your Sixth Amendment rights under the Nevada Constitution and the U.S. Constitution in your probation revocation hearing. This is because of the case of Anaya v. State, 96 Nev. 119 (Nev. 1980).  If the police officer is not available to testify and the prosecutor attempts to prove his or her case in the probation revocation hearing without the police officer, you will very likely be able to avoid revocation assuming that you have no other serious violations.  If the judge permits the probation officer to testify about what the arresting officer said and did in the new arrest, you have a very good chance of getting the Nevada Supreme Court to reverse the judge’s decision to revoke you assuming you have no other violations such as absconding while on probation.

Another important thing to remember is that you have the right to present witnesses in your defense at your revocation hearing.  The Anaya v. State case I referenced above gives you that right to present mitigation evidence on your behalf.  What that means is that you have the right to have your own character witnesses testify before the judge to hear what positive things you’ve done while on probation and that you are a person who is responsible, working or in school, going to AA meetings, etc… and overall doing things to improve the quality of your life and that of your family.

Most lawyers don’t present live character witness in probation revocation hearings because they don’t know that you can do this.  Sometimes this may be the only thing that saves you and convinces the judge that you deserve to be reinstated to probation and that you should get a second chance.  If family members present themselves well, then you may want them to testify about the impact that your getting revoked and going to prison will have on your family.  If the judge likes your family, he or she may decide to give you a second chance so as not to punish your family for the mistakes you may have made while on probation.  Also, you as a defendant have the right to testify in a probation revocation hearing in your own defense.

If you or someone in your family is facing a probation revocation in Nevada state court or facing revocation in federal supervised release, be sure and call me or come visit with me so I can fully explain what options you have and how I can help you.

It amazes me what these casinos in Las Vegas think they can get away with when it comes to casino markers.  Here’s the way the casino marker racket works.  Let’s say you’re a customer or a patron of a casino.  While at the casino, you ask for a line of credit.  The first thing the casino does is have you fill out a credit application. On this application, you are asked to list your bank account numbers.  The casino then runs a credit check to see how much you owe to other casinos, your history of repayment of markers at other casinos and their casino, and how much is in your bank account where you do your banking.

The usual case is this: the casino decides that on a monthly average that you have, let’s say hypothetically, $40,000 in your bank account.  The casino then will offer you credit in the form of casino markers WAY over the $40,000 you have in your checking account knowing that you’ve never had that amount ever in your account.  It’s not uncommon in this hypothetical where the casino will offer $120,000 which is three times how much you have ever had in your checking account.

The player, in our hypothetical, is given casino markers which are like checks.  The casino marker looks like a check. Once you sign a marker, the casino will print your routing and checking account numbers at the bottom of the casino marker. After you’ve presumably gambled and lost the $120,000, the casino will wait usually about 30 days and then deposit your markers with their bank and then the markers are presented to your bank for payment.  If you don’t have enough in your account to cover the markers, they will bounce and the casino will be notified.  From there, the casino will send you a certified letter telling you that you have 30 days to pay them or they will turn your markers over to the Bad Check Unit at the Clark County District Attorney’s Office.  If you don’t pay them within the 30 days, they will send your markers over to the Bad Check Unit for prosecution.  From there, the Bad Check Unit will send you a demand letter and tell you that you have 10 days to pay the $120,000 plus the Bad Check Unit’s 10% fee for a total of $120,000 + $12,000 = $132,000.  If you don’t pay the Bad Check Unit, they will formally charge you in a criminal complaint for Drawing and Passing a Check Without Sufficient Funds in Drawee Bank With Intent to Defraud, Presumptions of Intent to Defraud in violation of NRS 204.130 and NRS 205.132.

Here’s how the “waiver” argument comes in to our defense.  Let me demonstrate with this hypothetical.  Let’s say you go to the dry cleaner.  Your bill is $50.  Let’s say that you write the dry cleaner a check for $50 and you tell the dry cleaner, “Can you please hold this check for a week and then deposit it?  I don’t have enough in my account right now to cover this $50 check.”  If the dry cleaner accepts your check knowing that you don’t have enough in your account, he has “waived” the right to complain that you didn’t have enough in your account when you presented the check.  In this case, your check is more like a loan and when the dry cleaner goes to deposit the check and it bounces.  This is not a case that the Bad Check Unit will prosecute because the dry cleaner in essence gave you a loan and more importantly, the dry cleaner waived or gave up any right to complain that you didn’t have the money in your account when you wrote the check.  (If you had the money in your account when you wrote the check and then it later bounced, that fact rebuts the presumption of the intent to defraud.)

The ironic thing is that the Bad Check Unit makes a huge exception for the casinos.  If you or I make a loan to someone, and that person writes a check that bounces, we are out of luck and can’t proceed at the Bad Check Unit.  They won’t take the case.  But if the casino makes a loan or extension of credit, then that’s totally fine?  It’s ridiculous.

So back to my “waiver” argument.  The casino, in your case, knew that you didn’t have the money in your account when they gave you the $120,000 line of credit and that you’ve never had that kind of money in your account – and very likely would not have that amount in your account when they deposited the markers with you bank.  So my argument is that they have waived, or given up the right to complain that they were defrauded because you, in essence, told them when they ran a credit check on you, that you didn’t have the money in your account and have never had that kind of money in your account.

Every casino marker that is prosecuted by the Bad Check Unit is dismissed when an amount is negotiated and paid or when the patron pays off the entire amount on a payment plan.  But for those who can’t afford these options, the doctrine of “waiver” may possibly be of assistance in the form of a Motion to Dismiss for Abuse of Process or Unclean Hands which means the casinos have “unclean hands” by waiving the issue of you not having had the money and then later choosing to collect on it through the Bad Check Unit.  The doctrine of waiver may also be a good defense in front of a jury if your lawyer can convince the judge to instruct the jury that they may consider the doctrine of waiver in your defense.

If you have a casino marker that is in warrant or even if it hasn’t been presented to the Bad Check Unit, be sure and call me so we can discuss your options.