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Probation Violation

Police officer catching a person violating their probation. Talking next to two cars. Officer is taking a statement.

Courts have a choice of possible sentences for people convicted of crimes. Courts may order probation instead of a jail or prison sentence, depending on the nature of the criminal offense and the offender's previous record.

Probation is often ordered for first-time offenders as well as those convicted of misdemeanors and nonviolent felonies. Probation aims to give low-risk offenders a chance to return to their jobs, address any underlying problems like substance abuse, and prove they don't need a jail sentence to correct their behavior.

Being on probation doesn't mean you're free as a bird. Probation comes with almost as many restrictions as jail. Violating the terms and conditions of your probation means you return to jail, sometimes with a new charge and more time than contemplated in your original sentence.

What Is a Probation Violation?

Probation is sometimes called community supervision. It is a privilege, not a right. Probation violations happen when a probationer fails to follow the rules of their probation. Probationers sometimes forget that—though they're technically not in jail—they are subject to many of the same restrictions that come with a jail sentence.

Federal and state laws determine if an action is a probation violation. Violation depends on the nature of the original crime, the nature of the violating offense, and the circumstances surrounding the arrest. Just getting arrested may not violate the terms of your probation. Common probation violations include:

  • Failing to appear at a scheduled court hearing. Missing court dates may be the number one reason probationers lose their probation.
  • Failing a scheduled drug test. Weekly or random drug and alcohol tests are standard probation requirements. Failing multiple tests will likely lead to a probation violation hearing.
  • Failing to report to your probation officer or failing to make scheduled check-ins as required. In some localities, probationers do not report to a human probation officer. Instead, they punch in at an ATM-style kiosk every week. Missing a punch-in is just like failing to report to a person.
  • Failing to report contact with law enforcement. Any time a probationer has any contact with law enforcement, positive or negative, they must inform their probation officer. It surprises many people to learn that failing to report a traffic ticket could be a violation of probation.
  • Traveling out of state without notifying your probation officer. People who live close to state lines or who need to cross state or country borders for work should mention this to their lawyer—before they are before the court for a violation of probation hearing.
  • Failing to pay court costs, fines, or restitution as ordered by the court. Probation usually requires the probationer to pay trial costs, fines for the offense, and restitution to the victims. You can work out a payment plan with the probation department if you can't pay the full amount immediately.
  • Failing to complete community service. You are usually given a set period of time to complete your community service hours. The court will call you back to explain why you have not finished your hours by that deadline.
  • Committing a new crime while on probation. Committing a new offense while on probation is almost certain to result in revocation of probation. Probation lets you prove you don't belong in jail. Committing another crime is not a good way to prove that.

If You Violate Probation

Only your probation officer can violate your probation. A law enforcement officer or other agency can notify the probation department that you have allegedly committed one of the above violations. Your probation officer will determine the next course of action.

Technical Violations and Substantive Violations

A technical violation of your probation means that you violated one of the terms of your probation. A technical violation is not always a new charge. For instance, failing to pay restitution may not be a new charge on your record. That is considered a technical violation.

A substantive violation occurs when a probationer commits a new crime. Being arrested by police for driving under the influence (DUI) while you were on probation for theft adds a new charge to your record. The DUI is a substantive violation of probation.

Major and Minor Violations

Your probation officer has broad discretion to deal with your alleged violation. How they handle your case depends on the situation and what kind of officer-client relationship you have developed. Minor violations may get you a warning, especially if it was the first time it happened. Major violations may lead to a trip to court. Being arrested for a new crime means appearing before the judge.

Probation Revocation Hearing

At a probation violation hearing, your probation officer will present evidence to show the sentencing judge that you have violated the terms of your probation.

Your probation officer has the burden of proof, meaning they must convince the judge that you violated your probation and intended to do it. The standard in a probation revocation hearing is much lower than in a criminal case. A prosecuting attorney must prove criminal charges beyond a reasonable doubt. Your probation officer must only prove your violation by a preponderance of the evidence, meaning more likely than not.

Outcomes of a Revocation Hearing

Your probation officer and the judge prefer not to revoke probation for minor violations or a single major violation unless it is violent or a felony. The sentencing judge has considerable leeway in dealing with probation violations. Some options can include:

  • Extending the probation period beyond what was initially set
  • Imposing additional terms
  • Sentencing you to community confinement, such as a halfway house or rehabilitation facility
  • Ordering you to serve jail time, such as weekend jail
  • Revoking probation and ordering you to fulfill the original jail or prison sentence

Your Rights at Your Revocation Hearing

Your rights at a probation revocation hearing are the same as at any court appearance. You have the right to a notice of the charges, or in this case, alleged violations. You have the right to representation by an attorney. You have the right to present evidence and call witnesses to support your case.

Some probation violation attorneys specialize in assisting probationers charged with violating their probation and parole. If you can't find one in your area, a good criminal defense attorney can help you.

The judge considers the probation officer's report, the type of probation violation, and the nature of the original offense. If you have any evidence to present on your behalf, you should do so. For instance, suppose you missed a court date because you were not notified of the hearing. The summons went to the wrong address. You updated your address in your file, but the court clerk never added it to their records. This information could be used in your defense.

Learn About Your Options: Talk to a Defense Attorney Today

An alleged probation violation can mean more probation, bigger fines, or even a return to jail or prison for a defendant. If you're on probation and need to protect your legal rights or just need legal advice, contact an experienced criminal defense lawyer in your area.

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