Violation of Probation Defense
What is probation?
Probation is the release of a criminal defendant from the sentence of actual detention (jail or prison), subject to a period of good behavior and supervision. A probation sentence for a misdemeanor charge is called informal probation, court probation, or summary probation. A probation sentence for a felony charge is called formal probation.
Informal probation means that the defendant does not have a probation officer who supervises him or her with the completion of the probation terms. Felony probation is almost always supervised by a probation officer.
To be placed on probation means that a jail or prison sentence is suspended, and will remain suspended so long as the defendant completes a list of promises, also known as probation terms.
Typical probation terms include: violate no law, pay fines, serve a jail sentence, abide by criminal protective orders, attend classes (such as DUI, child abuse, AA, domestic violence, etc.), register with local authorities (such as a sex offender, drug offender, arsonist, gang member, etc.), pay restitution, and more.
The most confusing part of probation sentence is that a term of probation may be to serve a jail sentence; however, any actual jail sentence that is made a part of a probation sentence is generally much less jail time than what the defendant faced without a probation sentence. Also, most jail sentences that are ordered as part of a probation sentence may be served by electronic monitoring (house arrest) or work release.
What is a probation violation?
A violation of probation occurs when the defendant does not fulfill his or her probation terms as promised. There are two types of violations: Technical and Substantive.
A technical violation of probation means that the defendant failed to fulfill a term of probation as promised, but the violation is not otherwise considered a violation of the criminal law.
Technical violations of probation include: failure to pay a fine, failure to pay restitution, failure to enroll, attend, or complete a require class (DUI, anger management, etc.), and more.
Substantive violations of probation means that the defendant is accused of committing a new criminal offense.
Substantive violations of probation are treated more harshly by prosecutors and judges than technical violations of probation. In addition, with substantive violations of probation the defendant is facing the new criminal charges, which lead to the violation of probation.
What is a revocation of probation
After a formal charge of violating probation the defendant is entitled to a hearing called a Vickers Hearing. At the Vickers hearing the judge will make a decision, after hearing evidence of the violation, as to whether or not the defendant actually violated his or her probation.
If the judge finds that the defendant violated his or her probation the judge will sentence the defendant. A sentence for a violation of probation can range from reinstatement of the original terms and conditions (without any new punishment), or the judge may sentence the defendant up to the maximum punishment allowed under the law for the crime that lead to the defendant's probation in the first place. If the judge sentences the defendant to any additional jail time for a violation of probation the defendant is entitled to credit for any time that he or she already served for the crime that lead to the probation sentence. If the defendant's probation is revoked and the defendant serves the maximum punishment under the law for that particular crime then the defendant will no longer be required to serve probation after serving his or her actual jail or prison sentence.
How long does probation last?
The duration of probation is set by law. For example, child abuse cases require at a minimum of at least four years of probation by law (assuming the defendant is granted probation as opposed to sentenced to jail or prison). Misdemeanor probation generally lasts for one to three years. Felony Probation generally lasts for three to five years.
Note: Some serious and violent felonies are not eligible for probation. Also, probation sentence without jail or prison is not available some criminal enhancements, such as PC 1203.066 [Substantial sexual contact enhancement].
Can I have my probation reinstated
When the defendant violates his or her probation the judge or the District Attorney will generally allow reinstatement of probation on the same terms and conditions, with or without a Vickers hearing (see above) if the probation violation was of a technical variety and as long as the defendant made reasonable efforts to comply with the terms of probation and it is a first time violation. Reinstatement of the same terms and conditions, with some modifications is also a common punishment for any violation of probation.
Can I modify my probation terms
After a defendant is placed on probation it may be possible to have the probation terms changed or modified. It may also be possible to reduce the length of probation.
What are my probation terms
In misdemeanor cases, probation terms are usually pretty much standard according to the particular criminal charge. For example, for a violation of a misdemeanor DUI the terms include: DUI classes, fines, jail or work release, abstinence fro alcohol (some cases), violate no law, etc.
In felony cases, probation terms can be decided by the District Attorney and a criminal defense attorney but usually the terms are set by the probation department after an interview with a probation officer.
The probation terms themselves can be just about anything imaginable so long as any term has some reasonable relationship to the crime charged. Probation terms can not be arbitrary and capricious. Common felony probation terms include: Bravo search terms (no need for an officer to obtain a warrant before a search or seizure of the defendant while on probation), attend rehabilitative classes, agree to polygraph examinations, not leave the state, etc.
May I leave the state while on probation
For informal or summary probation the defendant is rarely prohibited from leaving the state of California (but the terms of probation can include a travel restriction in certain cases); however, in felony probation cases, the defendant must get written permission from his or her probation officer.
Can i transfer my probation to another county
Yes. A defendant may request that his or her probation be moved to another county within the state. The process involves serving both counties and taking the matter up with a judge in the county where the defendant was placed on probation.
When a defendant wants to change the state where he or she lives the matter is bit more complicated and permission from the probation departments of both states is required.
What do I do if I violate my probation
If you have been charged with violating your probation contact our criminal defense attorneys today for a free consultation. Our successful and experienced criminal attorneys have handled hundreds of probation violation charges. Our attorneys are available seven days a week to answer all of your questions. Call today!
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