Violation of Probation Overview
Being placed on probation is typically a positive development in a criminal case because it is a less severe punishment than incarceration. Being accused of a probation violation is stressful because it creates the possibility of having to serve a jail or prison sentence or having to comply with stricter probation requirements. A skilled criminal defense attorney can argue that you did not commit the violation and present mitigating evidence to lessen punishment if the court finds a violation did occur. Shaffer Cormell has over two decades of experience defending people on probation. Shaffer will vigorously advocate on your behalf to preserve your freedom and keep you out of jail or prison.
Violation of Probation Hearing
If you have been accused of violating your probation you must attend a probation violation hearing before a judge. The purpose of this hearing is to determine whether you did in fact violate your probation and if so, what penalty to impose. Common ways to trigger a probation violation hearing include failing to pay a fine, failing to appear in court, a commission of a new crime, and failure to submit to a drug test. If you violate any of the terms of your probation, either the police or your probation officer can arrest you and bring you to the probation violation hearing.
A probation violation hearing has different evidentiary rules than a criminal trial. For example, in a criminal trial, the prosecution must prove beyond a reasonable doubt that the defendant is guilty. However, in a probation violation hearing, the prosecution need only show by a preponderance of the evidence that a violation occurred. “By the preponderance of the evidence” is a significantly lower standard than “beyond a reasonable doubt” because it means the prosecution needs only show that it is more likely than not the probation violation occurred.
Furthermore, hearsay evidence that would not be admissible in a criminal trial is admissible in a probation violation hearing. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. For example, a defendant’s employer testifies that another one of his employees told him they saw the defendant smoking marijuana during his lunch break. The employer’s testimony is hearsay because the employer did not actually see the defendant smoking marijuana but is relying on what the other employee told him. The employer’s testimony would not be admissible in a criminal trial but it would be admissible in a probation violation hearing.
After weighing the evidence, the judge will make a finding as to whether you violated your probation. If the judge determines there was no violation then nothing happens and you remain on probation under the same conditions as prior to the hearing. However, if the judge finds you did violate your probation one of three outcomes will occur. The judge can reinstate your probation on the same terms and conditions. A reinstatement is the most favorable outcome of a probation violation because nothing changes and it maintains the status quo. The judge may also modify the probation with new, stricter terms and conditions. The worst possible outcome is the judge revokes the probation and requires you to serve your jail or prison sentence.
If your probation gets revoked, your attorney can still advocate for the judge to give you “time served” meaning your sentence will be reduced by the amount of time you were on probation. For example, a defendant is convicted of criminal trespassing and sentenced to four months in jail but the judge grants him probation instead. Two months into his probation, the defendant commits a violation that leads to his probation getting revoked. The defendant’s attorney can ask the judge to give him “time served” so that he will only have a two-month, rather than four-month, jail sentence.
Investing in a top-notch criminal defense attorney is your best option for avoiding these outcomes.