Probation Violations

By Mark Theoharis

When you’re convicted of a crime you face potential punishments that include a fine and incarceration. However, courts can also impose a probation sentence in lieu of, or in addition to, fines and jail or prison time. When a court orders you to serve probation, it essentially agrees to let you serve your sentence while remaining out of jail or prison, but only while under strict rules that you must obey. A probation violation can occur whenever you violate one of the imposed terms.

Probation

When a court orders probation, it allows those convicted of a crime to remain relatively free, or at least much more free than they would be had the court ordered them to serve time in jail or prison. Probation sentences are a type of punishment and they are not voluntary. A person sentenced to probation must serve the entire probation period and comply with any limitations imposed.

Conditions and Violations

A person on probation does not have the same freedoms the average person does and must live under specific rules, or conditions. These conditions are designed to both punish the offender and to protect the community while those on probation serve their sentence outside of jail or prison. Courts have broad discretion when imposing probation conditions, and can impose any condition as long as it is reasonably related to the crime the probationer committed. Though these conditions can differ significantly, they typically include many of the following.

• Probation reporting. Probationers must typically report to a probation officer. These officers are responsible for monitoring probationers, keeping track of their location, regularly meeting with them, and generally making sure the probationer is keeping up with the probation terms.
• Restitution. When a person commits a crime that results in monetary or other harm to a victim, the court will usually impose a restitution condition as part of the probation sentence. The probationer must pay money to the victim to compensate for the damage the probationer caused. The amount of restitution differs depending on the amount of damage the victim suffered.
• Community service. Probation conditions also often include community service requirements. The court can require a probationer to perform a specific number of hours of volunteer work with an organization that benefits the community.
• Drug testing. Many probationers, especially those who committed crimes where drugs and alcohol were involved, will have to take random drug tests. Probation officers can order drug tests when they believe necessary.
• Employment. Probationers must typically maintain employment for the entire term of their probation. If they don’t have a job at the time of being placed on probation, they must either find one or try to find one.
• Searches. People on probation must also submit to random searches by their probation officer. An officer can, for example, show up at a probationers home and search for weapons or drugs at any time and the probationer must allow the officer in. In other words, a probationer does not have the same Fourth Amendment protections against unreasonable searches and seizures that non-probationers enjoy.
• Criminal involvement. Probationers must not commit more crimes while on probation, nor can they associate with known criminals. Also, probationers must notify their probation officer whenever they have any encounter with law enforcement officers, even if they are not arrested. They may also have to inform officers of their probation status any time they are questioned by the police.
• Firearms. Those on probation for felonies cannot own a firearm or ammunition of any kind. Misdemeanor crimes can also result in probation orders that include firearms restrictions, especially when the crime involved weapons, drugs, or the use of force.

Revocations

Probationers who violate any of the conditions imposed by the court can have their probation sentences revoked. This typically happens when, for example, a probation officer finds that a probationer has violated a condition (such as not maintaining employment, or failing a drug test) and reports this to the court. The probation officer or a prosecutor can file a probation revocation and ask the court to hold a revocation hearing.

Revocation Process

A revocation hearing is similar to a criminal trial, though there are significant differences.

Probationers have a right to a hearing in which the court will hear the evidence about any alleged violation. The probationer has the right to call witnesses and present evidence at the revocation hearing, and has the right to be represented by an attorney. If the court finds that the probationer has violated any of the probation conditions, it will then determine whether to revoke probation or impose other penalties.

However, prosecutors in a probation revocation do not have to prove that the probationer violated a condition beyond a reasonable doubt. They must merely show that it is more likely than not that the probationer committed a violation. This is a lower standard of proof than in criminal trials. Further, probation revocation hearings are only heard by a judge, and no juries are involved.

Significant and Intentional

You cannot accidentally violate the terms of your probation, and minor violations are typically not enough to result in a revocation. Also, you cannot violate probation if you simply intend to commit a violation, but don’t carry it out. Instead, you must actually do something that violates one or more of the conditions. For example, if you are laid off from your job or miss a community service date because your car broke down, this won’t typically result in a probation revocation. However, if you intentionally skip out on your community service date and instead decide to go to a bar and get drunk, this is usually enough for a revocation.

Revocation Penalties

If a court finds that a probationer has violated a probation condition, it will impose a sentence. Sentences can include any punishments the court imposed but suspended when it ordered probation, meaning it can order the probationer to pay fines or serve time in jail or prison. However, a court can also impose other penalties (such as extending the length of the probation period), impose new probation terms, order the probationer to serve a short time in jail, or impose no new additional penalties at all. The court has wide discretion in choosing what punishment to give, and will take into consideration the nature of the violation, the probationer’s previous actions, and the recommendations from the probation officer and prosecutors.

Speak to an Attorney

If you’ve been accused of violating your probation, or have been sentenced to probation and are worried that you may have violated the terms, you should speak to a local criminal defense attorney immediately. Probation revocation proceedings are somewhat of a strange breed of court hearing because, while they involve criminal activity, they aren’t criminal trials. You need advice from an experienced attorney who understands the processes involved in the revocation process and has first hand experience with local probation officers, courts, and prosecutors. Probation revocations can seriously harm your chances of rebuilding your life, and you need to speak to an experienced attorney any time you have a probation violation concern.