PROBATION VIOLATION QUESTIONS AND ANSWERS
If your probation officer believes that you have violated your probation, you can be required to go to court, or arrested and brought before a judge. You need an experienced criminal defense lawyer representing you if you have been accused of violation of probation – The Law Offices of Nicola Fitzgerald will work with you to have the court reinstate your probation, and fight to keep you out of jail.
What are the potential outcomes in a probation violation?
In a probation violation case, the judge will decide if you have committed a violation, and what your continued penalty should be. The judge can:
- continue (reinstate) your probation on the same terms;
- change the terms of your probation, and make them stricter; or
- revoke your probation, and send you to jail.
Probation violation cases are unique because they are easier for the prosecution to prove than a normal criminal charge, and the hearing process involves less due process and protections. We know how the prosecution thinks and how to approach probation violation cases to ensure the best outcomes for our clients.
For many of our clients, we are able to:
- gather evidence that explains why a violation occurred;
- organize for them to attend additional counseling or other jail-alternative programs;
- refer them to county-supported drug and alcohol programs;
- enter into negotiations with the DA;
- have probation reinstated and probation holds lifted; and
- avoid the imposition of custodial sentences.
I’ve been accused of violating my probation, what happens now?
The police could arrest you based on information they receive from your probation officer or the DA, the court could issue an arrest warrant, or you could be ordered to appear in court on a certain date. Whatever happens, you should contact an attorney as soon as you know that you are being accused of a violation.
The first time that you go to court, several things will happen:
- the prosecutor will present the details of the alleged violation/s;
- the judge will ask you whether you admit or deny the violation/s;
- the judge will determine whether you should be granted bail until the hearing date;
- the judge will set a hearing date;
- the judge will summarily revoke your probation. This means that the conditions of your probation will stay in effect, but stops the clock running on your probation period.
Even at this first court appearance there are important decisions to be made, and your liberty will be at stake – in fact, in probation violation cases, you are not automatically entitled to bail. This is why it is vital to consult an attorney as soon as possible, so as your lawyer can be well prepared and a strategy developed to ensure that you remain out of jail wherever possible.
Will I go to jail while I wait for the probation hearing?
We are able to secure bail, or release on their own recognizance, for almost all of our clients who are facing violation of probation hearings.
When you first go to court, the judge will have to decide whether you should be released pending the hearing – there is actually no right to bail in probation violation cases . To determine whether you should be granted bail, or released on your own recognizance, the judge will consider factors that may include:
- The protection of the public;
- The safety of the victim and the victim’s family;
- The seriousness of the charges constituting the basis for revocation;
- Efforts by the probationer toward rehabilitation;
- The probationer’s previous criminal record; and
- The probability that the probationer will appear at the revocation hearing.
The Prosecutor may argue that, because you have violated your probation, you are not to be trusted to remain at liberty. But your attorney will bring evidence to the attention of the judge to demonstrate, for example, that you are not a risk to anyone, have been doing your best to comply, and will attend the hearing. When we are involved in cases in the early stages, we are able to work with our clients to take steps to mitigate the violation right away, so your chances of getting bail are increased. In fact, simply hiring an attorney to represent you can demonstrate to the court that you are taking the matter seriously.
But I didn’t violate my probation!
Don’t worry – if you are accused of violating your probation, that’s not the end of the matter. You can either admit or deny the accusations made (similar to pleading ‘guilty’ or ‘not guilty’ to criminal charges), and you will have a chance to defend the case, and present your own evidence at the hearing. If you have been wrongly accused of a violation, your attorney will work to keep you out of custody first of all, and then prepare a defense to the allegations made against you.
How does the judge decide whether to reinstate my probation or not?
At the hearing, the judge will hear evidence from the Prosecutor that they say proves that you violated your probation. The Law Offices of Nicola Fitzgerald Defense will cross-examine any witnesses, and challenge any unfair evidence. We will then have the opportunity to present a case in your defense.
To find that you violated your probation, the judge has to be satisfied that the prosecution has established the violation on the preponderance of the evidence. This standard of proof is less than the criminal standard of proof beyond reasonable doubt. This means that it is easier for the Prosecutor to prove a probation violation than it is a criminal charge.
If the judge does not find that a violation occurred, then your probation will be reinstated. If the judge finds that a violation did occur, it is then up to the judge to determine whether the probation should be reinstated, either with or without additional requirements, or whether the probation will be revoked and a custodial sentence imposed.
The Law Offices of Nicola Fitzgerald is prepared for this part of the process from the start of every case – which is why our strategy is to begin negotiations with the DA early, and why we focus on helping our clients take the steps that they need to redress the violation, such as attending counseling or other programs. In most cases, even where a violation is admitted to or found proved, we are able to keep our clients out of custody.
Why do I need an attorney for the probation hearing?
First, the potential consequences of being found to have violated your probation are very serious. As we have outlined above, simply being accused of a probation violation puts your liberty at risk, even if the alleged violation itself is a relatively minor matter.
If probation is revoked, you are exposed to the entire length of the custodial sentence for the original offense. For example, consider a case where someone was facing three years in jail for a felony conviction, but was sentenced to three years felony probation. If the Prosecutor proves that they violated their probation after two years, they will still face up to three years in prison – the time that they have served on probation does not give them any ‘credit’. And in cases where probation is not revoked, the judge can still add conditions to the existing probation that make it stricter or places additional burdens on you to achieve compliance.
Considering these risks, it is wise to have an experienced attorney representing you. The Law Offices of Nicola Fitzgerald is familiar with the courts and prosecutors throughout Southern California, and we know what kind of evidence and arguments are successful in persuading judges to reinstate the probation of our clients, keeping them out of jail.
How are probation violation hearings held?
The second reason that you should have an attorney representing you is the special nature of probation hearings. These hearings are held before a judge only (not a jury), and the standard of proof is lower than a criminal trial – not ‘beyond reasonable doubt’ but whether you committed the violation based on ‘a preponderance of the evidence’. They are more informal than a standard criminal trial, because the judge can allow the Prosecutor to introduce hearsay evidence, and even evidence that has been illegally obtained! That means that almost anything can be brought as evidence against you, and it can be very hard to challenge it effectively.
For example, imagine that as part of your probation you have been ordered to stay away from a certain person. The allegation being made against you is that you violated your probation by approaching that person in a shopping mall. In a normal criminal trial, the Prosecutor would have to bring that person to court to testify. But in a probation violation hearing, the Prosecutor could simply introduce a letter written by the person saying that you approached them – if the judge accepts that letter as evidence, the witness does not have to be at court, give evidence, or be cross-examined.
In that kind of case, however, The Law Offices of Nicola Fitzgerald would take steps such as urging the judge to consider your right to confront any witnesses used against you, and to measure that against the Prosecutor’s reasons for not bringing the witness to court. There are ways to challenge this kind of evidence, but it takes an experienced criminal defense attorney to know how to attack it, and to beat a case based on hearsay and other informally or illegally obtained evidence.
In cases where the alleged violation is that you are being accused of a new offense, a third reason to hire an attorney is that we have the ability to bring the cases together so as they can be dealt with simultaneously – and with a better overall outcome for you. We approach our client’s cases holistically, and understand the importance of developing a strategy that deals with all of the allegations you are facing. It can be stressful for you to have several cases happening at once, which is why we are sure to have them dealt with together as soon as possible. This strategy has also been successful in limiting our client’s exposure to serious penalties by allowing us to present a comprehensive defense to the judge.