Imagine a scenario where you've been convicted of a crime in California. Now, picture a judge offering you a lifeline in the form of probation. This lifeline allows you to serve your sentence under certain conditions while remaining free. It's a moment of relief, an alternative to incarceration, and a beacon of hope for a better future.
Understanding the process and potential consequences of violating probation terms is crucial. This understanding can empower you to make informed decisions and be prepared for the potential outcomes. Violating the terms can result in severe consequences, including probation revocation and serving the remainder of your sentence in jail. This is a serious matter that should not be taken lightly.
Keep in mind, a California judge has the power to extend your probation if you've violated its terms. But it's not a one-size-fits-all situation. It involves a hearing and the consideration of various factors. This discretion is a ray of hope, a preferable alternative to having your probation revoked entirely and serving a jail sentence. It's a chance for a second opportunity.
Notably, convincing the judge to extend probation rather than impose harsher penalties can be a challenging task. All judges will consider various factors, including the nature of the violation, the individual's compliance record, and their willingness to address the underlying issues.
Judges have the authority to revoke, modify, or change the original probation order. Suppose a violation is found. In that case, the judge can extend the probation, add additional terms, or even revoke it entirely, which could result in imprisonment.
After an alleged violation of the terms and conditions of your probation, the court can hold a hearing to determine if a violation occurred. The judge decides how to respond to a violation. If the judge finds a violation, they might add new terms to your probation, such as drug counseling or increased supervision.
What is the Legal Standard of Proof?
Your probation officer plays a crucial role in monitoring your compliance with the conditions of your probation. They will notify the judge of any suspected probation violations through a pre-revocation hearing, where the police officer or probation officer testifies in court and presents the judge with a report detailing the violation.
If the judge determines there is probable cause that you violated probation, they can issue a bench warrant for your arrest. If you are already in custody, the judge can issue a detention order to keep you in custody. At this point, your probation is temporarily revoked pending your formal probation violation hearing. During this time, the probationary period has technically paused.
After someone is accused of violating probation, the legal standard used in their probation violation hearing differs from that of a criminal trial. For example, a prosecutor does not need to prove the violation "beyond a reasonable doubt," as is required for a conviction in criminal court.
Rather, they only need to establish the violation by a "preponderance of the evidence." This standard means that the evidence must only show it is more likely than not that the violation occurred. Due to this easier burden of proof, defending against a probation violation requires preparation and a well-crafted legal strategy.
What are Common Violations?
In California, there are many different types of common probation violations, including failure to appear for a court date, failure to report to the probation officer, failure to submit to or pass a drug test, failure to complete community service hours, failure to attend DUI school, and failure to attend counseling, such as anger management or a batterer's program in domestic violence cases.
Other probation violations include committing a new crime during the probationary period, failing to attend rehabilitation, such as substance abuse treatment, failing to seek or maintain employment, failing to complete a GED program or earn a high school diploma, and willful failure to pay fines or restitution.
Notably, missing a fine or restitution payment will not typically initiate a probation revocation as long as the non-payment was due to a change in circumstances or that you were unaware of it when the judge granted probation. Rather, the judge can extend your probation to give you more time to pay.
If you are unable to make a court-ordered payment, please contact the court immediately. If you delay, the judge might consider your inaction as willful non-payment, which could lead to an extension of your probation or other penalties.
Once a bench warrant is issued for your arrest, you can be apprehended at any time. To avoid an arrest scene, we would file a motion in court to recall (or quash) your warrant and request a probation revocation hearing date.
Probation Violating Hearing
If you allegedly violated the terms of your probation, you are entitled to a probation violation hearing (PVH) in California. These hearings can be challenging to win, as prosecutors must prove the violation only by a "preponderance of the evidence," as noted above. Understanding this process can help you prepare for your hearing.
At your probation revocation hearing, prosecutors will present evidence, witnesses, and arguments to convince the judge that you violated one or more of your probationary terms. Hearsay evidence is generally admissible at probation violation hearings, provided it is reliable and relevant. Hearsay is a statement made by someone other than a witness testifying at the trial, and it is offered to prove the truth of the statement's content.
There are limitations to the admissibility of hearsay evidence. For example, if hearsay is the only evidence of your probation violation, the judge may need to show "good cause" to allow the hearsay instead of live testimony. If the judge cannot show good cause, you would have the Sixth Amendment right to cross-examine the person making the allegation against you.
Your defense lawyer can counter with our evidence, witnesses, and arguments that you did not violate probation. Defense lawyers will also typically argue that any violations are not serious enough to justify having your probation revoked.
If the judge determines that you committed no probation violation, then you will get to remain on probation with the same terms as before. However, suppose the judge determines you did violate probation. In that case, they will decide whether to give you a second chance by reinstating probation with or without additional or modified terms or revoke your probation, which may include remanding you into custody.
The judge decides whether you can remain out on bail or your own recognizance pending your probation violation hearing. Judges are more likely to let you out of custody if you are on misdemeanor probation rather than felony probation. In serious cases where the judge believes you pose a public safety or flight risk, they may order a "no-bail hold."
Possible Options After a Violation
Technical violations are when you violate one of the terms of probation. Direct violations are when you commit an entirely new criminal offense. When you violate your probation, the judge will only consider reinstating the original terms of probation if the violation was minor or incidental.
Extending probation is often the most favorable alternative to jail. It allows you to remain in the community, maintain employment, and continue working toward fulfilling your obligations.
Judges typically favor resolutions that promote rehabilitation over punishment, as long as the individual demonstrates a commitment to improving their behavior. A skilled defense attorney knows how to present an argument for an extension in a way that resonates with the court.
Jail time can result in job loss, housing instability, and other long-term consequences that make rebuilding your life significantly harder. Suppose the court finds that a violation has occurred. In that case, the judge has several options in determining how to proceed, such as the following:
- If the violation is minor, the judge may decide to reinstate your probation, allowing you to continue under the same terms.
- The judge may decide to extend your probation period to give you additional time to fulfill the requirements.
- The court may impose stricter conditions, such as mandatory counseling, or additional community service hours..
- For more serious violations, the judge may order a short jail term before reinstating probation under the same or amended terms.
- If the judge believes that continued probation is inappropriate, they may revoke it, resulting in the imposition of a jail or prison sentence based on the original conviction.
How a Defense Attorney Can Help
Given the lower burden of proof in probation violation hearings, hiring our experienced California criminal defense attorneys can significantly impact whether you receive leniency. We can use several strategies to mitigate the consequences of a probation violation.
Perhaps we can challenge the alleged violation. We may be able to demonstrate that no violation occurred, especially if there is insufficient evidence or if the allegations are based on a misunderstanding.
Perhaps we can present mitigating circumstances. If the violation occurred, we may be able to present evidence demonstrating that it was minor, unintentional, or the result of circumstances beyond your control. Mitigating factors may include having no prior offenses or demonstrating that you pose no risk to public safety.
Perhaps we can demonstrate good faith efforts. We can highlight your prior compliance, participation in mandatory programs, and efforts to meet probation terms. This can help convince the judge that you take your probation seriously.
Perhaps we can propose alternative solutions. We can negotiate for alternatives to jail, such as increased community service hours, participation in a treatment program, or other constructive measures that allow you to avoid incarceration. One of the most compelling arguments we can make is that extending your probation serves the interests of justice while also holding you accountable for your actions.
With decades of experience defending individuals accused of probation violations, we can often persuade judges to grant bail by demonstrating that you have otherwise been compliant with the terms of your probation. The outcome largely depends on the nature of the violation, your history while on probation, and how effectively your attorney presents your case. For more information, contact our criminal defense law firm, Cron, Israels & Stark, located in Los Angeles, CA.
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