After being convicted of a crime, a judge may grant a defendant probation as an alternative to incarceration. Often used for non-violent crimes, first-time offenders, and low-flight risks, probation helps a defendant stay out of jail or prison, remain in the community, and begin rehabilitation efforts that encourage them to avoid committing future offenses. If a defendant violates the terms of their probation, though, a Probation Violation Hearing (PVH) is necessary to reevaluate the terms and the effectiveness of the probation, ensuring a fair and just punishment for the defendant and the safety of the community.
If you’ve been accused of violating your probation, you need to understand your rights and legal options. Securing legal aid can help. An experienced criminal defense attorney can advocate for a judge to keep you on probation, secure fair and legal probation terms, and help you navigate the terms and requirements.
Understanding Probation in California
The two main types of probation in California are felony probation, otherwise known as supervised or formal probation, and misdemeanor probation, or informal or unsupervised probation. Formal probation is used in cases of felony criminal charges and tends to last around two years but can last as long as five. Informal probation, used in the event of misdemeanor criminal charges, averages around one to two years. Typically, informal probation is unsupervised and has minimal reporting requirements, fewer fines and fees, and more freedom. Unsupervised probation is often self-reported; failure to report or own up to violations could result in more charges.
In order to stay on probation and avoid returning to court or facing new charges or incarceration, a judge will set certain terms that you have to meet. Common probation conditions include reporting to a parole officer (more common for formal probations), attending counseling, passing drug tests, and not getting arrested for new crimes. Complying with probation means following all the terms and conditions set by the judge for the whole probation period, such as showing up for court dates, participating in community service or rehabilitation programs, and paying fines or restitution. A failure to comply will lead to a PVH and further possible consequences.
What Constitutes a Probation Violation?
You can violate probation terms in several ways:
- Technical Violations: missed appointments or court dates, missed curfew, failed drug tests, broken travel restrictions, broken orders not to see certain people
- Skipping Conditions: failure to pay fines, restitution, or complete required programs
- New Offenses: being arrested or charged with a new crime
A parole officer or judge may consider some violations minor, especially if they are due to something outside of your control, like slow public transportation or a contaminated drug test, and establishing good relations with those administering or helping you through probation is imperative. They can advocate for you and testify at a PVH, verifying your commitment to your rehabilitation. Repeated minor violations may be harder to wave away if you don’t take steps to avoid them.
How Are Probation Violations Discovered and Reported?
While on informal, or unsupervised, probation, you are responsible for self-reporting any technical violations. Other people or organizations tied to your probation terms can notify the correct parties of term infringements, like missed payment deadlines or skipping out on counseling or community service. These different violations will come up during any required court appearances or once a PVH has been called.
On formal, or supervised, probation, the court will assign you a parole officer. They will submit reports about your progress or any possible condition or term breaches. Getting arrested for a different charge while on probation is an automatic violation and is quickly reported. Not only will you need to go to trial for the new charge, but a PVH will be called to reevaluate your probation terms.
The Probation Violation Hearing Process
After a violation is reported, the court will either issue a warrant for your arrest or a summons for you to appear in court to answer to the alleged breach of probation. Whether arrested or summoned, you will undergo a PVH. There, similar to a criminal trial, the prosecution and defense can provide evidence, call witnesses, and make arguments about the validity of the probation violation. A PVH differs from a criminal trial, however, as it does not end in a verdict by a jury but rather a decision made by the judge. Also, the burden of proof is lower. In a criminal trial, the prosecution must prove guilt “beyond a reasonable doubt,” that there is no other reasonable explanation. At a PVH, the prosecution must only prove “preponderance of the evidence” or that their explanation of events is more likely to be true than the defendant’s.
Depending on the severity or number of violations, a PVH could result in:
- A change in your probation’s terms and conditions, often involving harsher rules like increased supervision, restricted travel, or additional counseling.
- Revoking your probation and sentencing you to jail or prison time.
- A split sentence, during which you serve a modified amount of time in jail or prison and then a strict probation period after release.
Many factors will affect a judge’s final decision.
Potential Penalties for Violating Probation
Rather than revoking probation, a judge can serve penalties as punishment for violations. Penalties could be as simple as a warning, acknowledging that there will be less lenience if there is another one is made, or a modification of probation conditions. Reinstatement of probation with stricter terms could look like:
- Additional community service
- Mandatory counseling
- A longer probation period
- Increased supervision
A judge may decide that the violation requires a harsher punishment and sentence you to a short jail stint, or flash incarceration, as part of California’s Postrelease Community Supervision. However, you could have your probation revoked and be sentenced to serve the jail or prison time originally proposed during your criminal trial. Several factors can influence a judge’s decision, such as the violation’s severity, the amount of evidence, and your efforts to comply with probation.
Factors That Influence the Outcome
A number of variables will help a judge determine what punishment, if any, a violation constitutes. These factors can include:
- The nature and seriousness of the violation: Was anyone hurt or put at risk due to the violation? How heavily does the violation relate to the original charge?
- Your history of compliance and criminal charges: Are there several violations showing a lack of effort to comply with the probation terms? Is this probation for your first criminal charge?
- Whether the violation involved a new criminal offense: Does the violation create a new criminal charge for you, such as drug use or assault?
- Your character: Have you fulfilled or put effort towards fulfilling many of the probation’s terms already? Have you shown a positive, or at least compliant, attitude toward rehabilitation?
Proper legal aid can help provide evidence and testimony to verify these different details.
How a Criminal Defense Attorney Can Help
An experienced criminal defense attorney can provide numerous defense tactics during a PVH, such as your lack of knowledge that you committed a violation or claim the violation is a false accusation. They can also provide credence to any mitigating factors surrounding the infringement, such as circumstances outside of your control or the violation’s minor severity.
Your attorney can also advocate for you with your parole officer. With legal aid, you can avoid having the violation reported at all (for minor ones, like missing curfew), or they can help show that you are taking steps to avoid further ones, either before or during a hearing. Working with the prosecutor, an attorney can propose alternative penalties or probation changes that are either less strict or help you avoid imprisonment.
A criminal defense attorney will help ensure your rights are respected during a PVH, which include:
- Right to Notice: You must be notified in advance of the nature of the alleged violations.
- Right to an Attorney: You have the right to legal representation at your PVH.
- Right to Present Evidence: You, or your representation, can provide evidence in your defense.
- Right to Cross-Examine Witnesses: You, or your representation, can cross-examine any witnesses brought forth by the prosecution.
Having experienced legal aid goes a long way to securing a fair outcome.
What to Do If You Think You’ve Violated Your Probation
If you think you have violated your probation, do not wait for someone else to report you or for a warrant. Being proactive and self-aware shows a commitment to following the terms you’ve been given. If you’ve committed a possible violation, contact your attorney and document any efforts at maintaining compliance. With the help of your attorney, you can work with your parole officer or the court to find solutions to the violation before a PVH even takes place.Probation is not a right. A violation could lead to more intense punishments if severe enough and not adequately defended. Experienced legal counsel can make all the difference during your probation, keeping you on track to follow and fulfill the different terms of your probation and reduce possible penalties in the event of a violation. It is imperative to seek help immediately if accused of violating your probation, and the Law Offices of M. Gabriela Guraiib can be there for you.
