How to Legally Get a Scram Device Removed Early

Drafting a Motion

Talk to your probation officer. You probably were assigned the SCRAM bracelet as part of your probation. You should talk to your probation officer about why you want to remove the bracelet. If you can get your officer to agree, then you will have a stronger argument.

Identify why you want the device removed. Generally, judges are not anxious to remove the bracelet. In fact, they might have given you a choice: wear the SCRAM device or go to jail. Before asking a judge to remove the bracelet early, you need to identify solid reasons for doing so: The bracelet has issued “false positives.” This means the bracelet detects alcohol when you haven’t been drinking. You will need proof that you haven’t consumed alcohol, such as a hair test or a polygraph exam. You will have to pay for both. If you pass them, then they are solid proof that the device is inaccurate. The device is unnecessary. If you have gone several months without a drink, then you could argue that the device is no longer needed. You would prefer to take in-person tests. The judge might have given you an option to wear the device or take tests in person. You might have initially chosen the SCRAM device but have now changed your mind.

Format your motion. Anytime you want the judge to do something, you need to file a “motion” with the court. You can begin drafting your motion by opening a blank word processing document. Set the font to 14 point Arial or Times New Roman. Also double-space the document. Your court may have printed forms you can use. You should look on the court’s website or stop in and ask the court clerk.

Insert the caption. The caption information appears at the top of the first page of every motion filed with the court. It stays the same throughout the prosecution, so if you’ve never drafted a motion before, then you can look at any document filed in your case to find the caption. The caption includes: The name of the court. The names of the parties. Typically, the state is the “prosecutor” and you are the defendant. The case number.

Add your title. You can title your motion “Defendant’s Motion To Modify Probation.” If you want to terminate probation, then you could title it “Defendant’s Motion To Terminate Probation.” You should insert the title underneath the caption. You may have been ordered to wear the bracelet as a condition of bail. If so, you should title your motion “Motion to Modify Bail.”

Include an introduction. In your introduction, you should identify yourself and then state whether you are representing yourself (called representing yourself “pro se”). Then you should explain what you want the judge to do. Sample language could read: “COMES NOW Defendant, Sam Smith, representing himself pro se, who moves this Court to modify his probation. In support of the motion, Defendant states the following….”

Provide important background facts. The judge might have forgotten who you are, so you should provide helpful information to catch the judge up to speed. Make sure to number your paragraphs. Provide the following information: The date you were placed on probation. How long probation should last. The fact that you were given a SCRAM bracelet as one condition of your probation.

Explain why the judge should remove the bracelet. You also have to give the judge a reason to remove the bracelet early. Decide whether you are seeking to only have the bracelet removed or if you want your probation to end early. You could argue: The bracelet is unreliable. There is some proof that SCRAM bracelets are not as effective at detecting alcohol use as some judges might believe. You could argue that the bracelet is faulty and that it has registered false positives. Point to hair tests and polygraphs which show you didn’t drink. You could also mention an article by Judge Dennis N. Powers called “The SCRAM Tether as Seen Through the Eyes of Davis-Frye and Daubert.” In this article, a Michigan judge argues that the SCRAM device is not sufficiently reliable to qualify as expert evidence. There are alternatives that are less burdensome. You would have a stronger argument if you give the judge some alternatives for monitoring your alcohol consumption. For example, you could take tests in person. You have satisfied all other conditions of your probation. For example, if you have been ordered to pay a fine and do community service, make sure you are diligently working toward completing those requirements. Whether your probation officer agrees. If so, be sure to mention that fact.

Conclude your motion. Briefly restate that you want the judge to remove the SCRAM device. Also be sure to include the date and your signature just below the conclusion. A sample conclusion could read: “WHEREFORE, Defendant requests that this Court grant the Motion to Modify Probation and issue an Order to that effect.”

Draft a certificate of service. You will have to provide a copy of your motion to the prosecutor and your probation officer. You will certify that you sent a copy of the motion to each. You can type up your certificate of service on a separate sheet of paper but include it with your motion. The certificate should state how you sent the motion to the other parties. For example, it could read: “I certify that I sent a true and correct copy of this motion to [insert names and addresses] this 20th day of April, 2016.”

Create a proposed order. The “order” is what the judge signs if he or she agrees that your SCRAM device should be removed early. You may have to draft a proposed order and submit it with your motion. You should type it up on a separate sheet of paper. Insert the caption information at the top. The order can read something like the following: “Hearing held on the motion this 20th of May, 2016, the Court finds good cause and it is hereby ORDERED that the Defendant’s Motion to Modify Probation is GRANTED.” Then include a signature line for the judge.

Filing Your Motion

Make several copies of the motion. It is best to keep one copy of your motion for your own records. You also will need to send a copy to the prosecutor and your probation officer. Some courts also require that you file copies along with the original. Contact the court clerk and ask how many copies you need to file.

Schedule a hearing date. Before the judge can modify your probation, you must attend a hearing. For this reason, you should get a hearing date from the court clerk. Each court handles the scheduling of hearings a little differently. Ask the clerk how you can schedule a hearing. You may also have to fill out a Notice of Hearing form. The clerk should have a form. If there’s no form, then draft your own. Insert the caption information at the top and title the document “Notice of Hearing.” Then state the date, time, and location of the hearing. Sign the notice as well.

File your motion with the court. You should take the original and copies to the court clerk. Ask to file. The clerk can stamp all of your copies with the filing date. Depending on your court, you may also have to pay a filing fee. You should check with the clerk ahead of time and ask for the amount and acceptable methods of payment. If you can’t afford the fee, then ask for a fee waiver form.

Send notice to the prosecutor. Use the method identified in your certificate of service to send the prosecutor (and probably your probation officer) a copy of your motion. They will also need a copy of the Notice of Hearing so that they can attend if they object to your getting the SCRAM device removed early.

Attending a Hearing

Dress appropriately. You want to look your best for your hearing. The judge will only agree to remove the SCRAM bracelet early if he or she is confident that you’ll not violate the other terms of your probation. You need to show the judge that you are responsible, and dressing in clean, neat clothes will help convince the judge. Men can wear business casual: dress pants and a dress shirt with a collar. If you have a conservative tie, then wear that as well. For footwear, men should wear dress shoes with dark socks. Women can also wear business casual: dress slacks or a skirt paired with a blouse or nice sweater. Women can also wear conservative dresses, but they must not be too tight or revealing. Men and women should both avoid wearing blue jeans, unless they have no other long pants. Also avoid shorts, baseball caps, T-shirts, and anything with writing on it.

Bring helpful documents. In addition to a copy of your motion, you should also bring any proof that you have completed other conditions of your probation. For example, if you performed a sufficient number of community service hours, then you should have some sort of signed document attesting to that fact.

Arrive at court on time. Give yourself enough time to find parking around the courthouse and to go through any security. Plan on getting to the courtroom 15 minutes before your hearing. If you are late, then the judge will reject your motion. Also make sure to turn off your electronic devices before entering the courtroom. Nothing could be worse than having your phone ring or beep.

Make your argument. When the clerk calls your name, you should go to the front of the courtroom. You will make your argument first. You should introduce yourself: “Your Honor, I’m Sam Smith, representing myself.” Limit your argument to those you made in your motion. You can’t make new arguments during the hearing. If the judge has questions, listen quietly. Don’t talk over the judge, and always call the judge “Your Honor.”

Listen to any objections by the prosecutor or probation officer. If either objects to the device’s removal, then they will tell the judge why. You have to quietly listen to them talk. If they say anything you want to respond to, then write down your objection on a piece of paper. Don’t interrupt, and don’t raise your hand to ask to speak. Wait until they are finished, and then ask the judge, “Your Honor, may I respond?”

Receive the judge’s decision. At the end of the hearing, the judge should decide whether to remove your SCRAM device. If the judge agrees, then he or she will sign the order you provided. You should get a copy of the signed order from the clerk. You will also have to coordinate a time to have the device removed.