What Is a Motion To Revoke Probation?

Prosecutors use a motion to revoke probation if a person violates probation.  Probation is a sentencing alternative in criminal cases. Courts often use probation for less severe criminal offenses or as part of a plea bargain.  It is an alternative to prison or jail, which come with its own set of rules.  If the person on probation violates these rules, the prosecutor can ask the court to revoke their probation.  A motion is the formal document they use to make this request.

This article explores what happens when probation goes off track. Keep reading to learn about the consequences and steps involved in revocation of probation.

Probation Basics

Prison or jail are not the only options for a person convicted of a crime.  One definition of probation is as follows:  "the suspension of all or part of a sentence and its replacement by freedom subject to specific conditions and the supervision of a probation officer."

Probation is a form of criminal sentencing that allows someone convicted of a crime to serve their sentence in the community, supervised by a probation officer. It aims to provide rehabilitation opportunities while ensuring public safety. 

When a court grants someone probation, it sets up conditions the person must follow. These conditions of probation aim to deal with the reasons behind their actions and keep an eye on what they're doing. Some common rules are:

• Regular check-ins with a probation officer (PO)
• Agreeing not to break any laws
• Drug and alcohol testing
• Community service
• Counseling or treatment programs such as drug treatment and anger management
• Restrictions on travel
• Employment or education requirements
• Curfew
• Limits on possession or purchase of firearms

Probation allows people to continue working, attending school, and participating in their communities under restrictions.  Probation violations occur when probationers fail to meet the specified conditions or violate the terms of probation.

Probation Officers

Probation officers are law enforcement officials who monitor the probationer's compliance with probation terms and conditions.  For example, if the terms of probation include drug and alcohol testing, the probation officer may schedule random drug tests.  Or, if the terms include maintaining employment, the probationer may have to show proof of continuous employment.   

Probation officers also give the court updates on a probationer's progress and often give the court recommendations.  For these reasons, it is important that those on probation communicate with their probation officer.  Keep all appointments and ask for help.  In addition to monitoring compliance, a probation officer is often a good resource for those on probation.

Types of Probation

There are various types of probation, each with its own conditions. The specific types of probation can vary by jurisdiction. Some common forms include:

• Standard Probation: You follow the terms of your probation, like meeting with a probation officer (PO) and obeying laws.
• Supervised Probation: You meet with a PO often. This PO checks that you're following the rules.
• Unsupervised Probation: You still have rules to follow, but you do not check in with a PO. Instead, you may have to occasionally report to the court.
• Community Control: Also known as house arrest, the court restricts you to your home or a specific location for some time. To ensure compliance, the courts may use electronic monitoring, such as ankle bracelets.
• Shock Probation or Split Sentence: You serve a short jail sentence and then finish your sentence with probation.
• Intensive Supervision Probation (ISP): ISP involves more frequent and intensive monitoring by a PO. This type of probation is often assigned to individuals with a higher risk of reoffending.
• Deferred Adjudication or Pretrial Diversion: Instead of entering a guilty plea, you may receive deferred adjudication or pretrial diversion. If you complete probation, the court may dismiss the charges. This avoids criminal conviction.
• Juvenile Probation: Specifically designed for individuals under 18, juvenile probation aims to rehabilitate young offenders rather than focus solely on punishment. Conditions may include counseling, community service, and educational requirements.
• Drug or Alcohol Probation: Individuals with substance abuse issues may be placed on probation with specific conditions related to drug or alcohol treatment, counseling, and regular testing.
• Mental Health Probation: For individuals with mental health issues, this form of probation may include requirements for counseling, treatment, and regular mental health assessments.

Revoking Probation

Probation violations can take various forms, from failing a drug test to committing another crime. Alleged violations trigger a probation revocation process, which may result in jail time or other consequences.

A common trigger for a motion to revoke probation is when someone commits another crime. Whether a misdemeanor or a more serious criminal charge, new charges can result in severe consequences, including the imposition of a prison sentence.

The process for revoking probation often involves the steps outlined below:

1. Violation Occurs: The probationer violates one or more terms of their probation. This could be failing a drug test, committing a new offense, not attending required counseling, or any other breach of the probation conditions.
2. Probation Officer's Report: The P.O. supervising the individual reports the alleged violation to the court. The report includes details about the nature of the violation and supporting evidence.
3. Notice to Probationer: The probationer is officially notified of the alleged violation and the upcoming probation revocation hearing. This notice outlines the specific violations and the consequences they may face.
4. Probation Violation Hearing: The court schedules a hearing to determine whether the probationer violated the probation terms. During the hearing, the probationer can present their case, and the burden of proof is typically lower than in a criminal trial. The standard is often based on a preponderance of the evidence rather than proof beyond a reasonable doubt.
5. Presentation of Evidence: The prosecutor or district attorney presents evidence supporting the alleged violations. This may include testimony from the PO, results of drug tests, witness statements, or other relevant evidence.
6. Defense Arguments: The probationer and their defense attorney can present arguments and evidence to defend the probationer. They may challenge the evidence presented or provide explanations for the alleged violations.
7. Court Decision: After considering the evidence and arguments, the judge decides whether to revoke probation. If the judge decides in favor of revocation, they may impose additional conditions, stricter supervision, or order the individual to serve the original jail or prison sentence.
8. Appeal: In some cases, the probationer may have the right to appeal the decision to revoke probation. The appeal process varies by jurisdiction.

Get Legal Help

Parole violations have serious consequences, including a motion to revoke and subsequent incarceration.  If you or someone you know is struggling with probation conditions, a criminal defense attorney can help. They are experts in criminal law and can help guide you through the legal process.  Speak to a qualified criminal defense attorney today.