Probation means the suspension of imposition or execution of sentence. For example, if a person is convicted of or pleads guilty to a crime that carries a maximum sentence of one year in jail, the judge may have discretion to instead put the defendant on probation for three years, with a list of conditions that the defendant must comply with or risk going to jail. Probation is also frequently used to follow a shorter term in jail; a person might be sentenced to 30 days in jail and three years probation. If a defendant has been sentenced to prison rather than jail, the supervised release is parole rather than probation (while the terms of parole are similar to probation, the process and authority for dealing with a parole violation are quite differently and the information below should not be considered applicable).
People who violate the terms of probation may be sent to jail or prison upon their violation. As discussed below, before being sentenced, defendants on probation are entitled to a hearing in front of a judge to determine whether or not they are in violation of their terms of probation. Those accused of a violation are not entitled to have a jury trial to determine whether there was a violation. Probation officers are usually not lawyers and can make mistakes. Judges have a wide range of discretion in probation violation matters.
Probation: Formal or Informal
Formal, supervised probation requires you to report to the probation officer. If instead you are you are on court probation (also called “informal probation” or a “conditional sentence”), you are not required to report to a probation officer. In misdemeanor cases, probation is usually to the court.
If you are placed on probation, the probation officer or court must furnish you with a written statement of the conditions of probation and papers that inform you of your right to have the conviction set aside and the complaint dismissed upon successful completion of probation, or possibly the right to apply for a certificate of rehabilitation and pardon.
Standard Terms of Probation
In felony cases, the court has discretion to grant probation for up to 5 years or as long as the prison term, if the prison term exceeds 5 years. In misdemeanor cases, the court may generally grant probation for up to 3 years, or no longer than the consecutive sentence imposed if more than 3 years. Probation can extend to 5 years in misdemeanor cases of driving under the influence.
Standard terms of probation include that a person “obey all laws” and, if on supervised probation, report to the probation officer as directed and inform the probation officer of any change of address or employment. Courts have broad discretion to impose additional probation conditions, and some offenses (such as DUI, domestic violence, sex offense, and economic crimes) carry certain mandatory probation conditions. When the court imposes additional probation conditions, those conditions must be reasonably related to the offense and aimed at deterring such conduct in the future.
Commonly imposed discretionary probation conditions include:
- alcohol restrictions,
- community service,
- curfew for minors,
- drug testing without a warrant,
- work furlough programs, road camp, or public work
- electronic monitoring,
- waiver of Fourth Amendment protection from unreasonable search and seizure,
- restricting internet access,
- participation in an AIDS education program
- prohibiting association with criminals, drug users, or gang members,
- home detention,
- stay-away orders (e.g., from places where minors congregate, or from one’s spouse/partner in a domestic violence case)
- suspension of driver’s license,
- travel restrictions, and
- waiver of custody credits.
If the conditions of your probation seem unduly harsh, you may refuse probation and challenge the proposed condition on appeal or you may accept the terms and later attempt to modify your probation.
A probation violation can occur whenever a person breaks any probation term. Violating probation can result in probation being revoked and the underlying jail or prison sentence coming into effect.
Even though the stated purpose of probation is rehabilitation, it is important to remember that your probation officer and the district attorney (prosecutor) are working closely together. If you are out of compliance with the terms of probation, it is very likely that your probation officer has alerted or is contemplating alerting the district attorney. The district attorney has the authority to file a probation revocation against you in court, either instead of or in addition to filing new charges. In other words, if the district attorney concludes that you have committed a new crime (even something relatively minor like possessing weapons), the DA can both file a motion to revoke probation and file new charges against you. Common grounds for probation revocation include: failure to pay a fine or appear in court, failure to report to your probation officer, failure to comply with a court order, committing a new crime, and not submitting to or failing a drug test (see: http://www.defendca.com/blog/does-probation-allow-medical-marijuana/).
If a probation revocation has been filed against you, you may be facing serious consequences for the underlying case all over again. Filing a motion to revoke your probation you gives the district attorney a considerable advantage over you because you have fewer rights at a probation revocation hearing than you do in a standard criminal case. For example, the motion will be decided by a judge, not a jury. In addition, the district attorney is permitted to bring in evidence that would not otherwise be admissible in a standard criminal case.
A defense attorney on your side will help you to negotiate with the district attorney and deal with all the charges against you at once. A defense attorney may also be able to help you to modify the terms of your probation to be more fitting to your circumstances (such as to permit you to use medical marijuana, if the crime for which you have been convicted is unrelated to drugs or alcohol) or help you get your probation terminated early.
The Probation Revocation Hearing: The Process & Your Rights
Probation revocation begins with either an arrest or a letter from the probation department to you indicating the time and place of hearings to revoke probation.
At the pre-revocation hearing, the court makes a judicial determination of whether there is probable cause to support a probation violation, usually on the basis of the probation report or an arrest report. If the court finds there is probable cause to revoke probation, the court will revoke probation preliminarily and set a date for a revocation hearing. (It is very rare for a court to find insufficient probable cause to revoke probation preliminarily.) You have the option of submitting that he or she did violate probation rather than going through with a hearing. Once the court has revoked probation preliminarily, the court has discretion whether to grant bail or own recognizance (O.R.) release to felony defendants; for misdemeanor defendants bail or O.R. release is usually mandatory.
At the revocation hearing, a judge will determine whether there is a preponderance of evidence that you violated probation. As mentioned above, you are at a disadvantage in a probation revocation hearing—the “preponderance of evidence” standard the prosecution must meet is much easier than the “beyond a reasonable doubt” standard in a criminal trial. It is advisable to have on your side excellent defense counsel to investigate the facts of the allegations and research the law. At the revocation hearing, you have the opportunity to present witnesses and evidence and to confront and cross-examine the prosecution’s witnesses.
Possible Outcomes of Motions to Revoke Probation
After hearing a motion to revoke, a court has several options. It can:
- Revoke probation and sentence the probationer (in other words, send you to jail or, if the underlying case was a felony, to prison).
- Reinstate probation on the same terms and conditions
- Reinstate probation and impose new conditions (e.g., additional fines, community service, additional term of probation, or jail).
If you are on probation and are facing a probation violation, the Law Offices of Thomas Greenberg can help. San Mateo criminal defense lawyer Thomas Greenberg has handled thousands of probation violations. In many cases, you may be able to avoid a violation of probation, avoid jail, or even prison by having the kind of competent legal counsel that is provided by attorney Thomas Greenberg.
Successful Completion of Probation
When you have successfully completed the terms of probation, it is likely in your interest to have your record expunged so that it does not haunt you if you are applying for employment, housing, or benefits. For more information see http://www.defendca.com/blog/how-much-can-your-employer-pry-into-your-criminal-record/Attorney Thomas Greenberg can help you get your record expunged when you have successfully completed probation.