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When on probation, how can a new charge affect your probation if not yet found guilty for that new charge?

San Jose, CA |

When you are on probation it is considered conditional Liberty. You avoid jail time by being good and following their rules. I heard an alleged violation of probation can happen when you catch a new case during your probation time. How is this fair. How can your probation be revoked for receiving a new charge for which is still proceeding and for which you have not been convicted GUILTY yet?

Attorney Answers 6


  1. Your probation cannot be revoked for receiving a new charge. The violation process begins after you receive a new charge. You will have a hearing on the violation of probation in which te prosecution has to prove the new offense or other basis for the violation. The hearing will be very short if you are found guilty of the new crime in that new case by pleading guilty or having your guilt determined by jury or judge. Hire counsel to handle both cases.

    The information provided herein does not create an attorney-client relationship. The information provided is to suggerst some general principles and should not be relied upon for client decisions. Only upon the hiring of counsel can such advice be custom-tailored to the client's specific situation and needs.


  2. If one gets arrested for a new charge while on probation, the court where the prior conviction for which you are on probation for, can set a probation hearing. Even if the case you were arrested for gets dismissed, you still may have to deal with a probation violation hearing matter, and be found in violation of probation even though the new charge was dismissed. It is possible to win the probation violation hearing, or the Judge reinstate probation without further penalty. Note that a probation violation hearing has different standards and process than an underlying criminal charge.

    You should speak to an attorney in your area to discuss your new charge and your probation violation issue in more detail.

    Legal disclaimer: This message does not constitute legal advice and is for informational purposes only. This message does not establish an attorney-client relationship, which can only be established once a retainer agreement has been fully executed between you and this firm.


  3. Yes. While on probation, you are not supposed to get into any kind of trouble. Some courts assume that if you were arrested and charged with a crime, you are culpable enough to have at least a probation hearing. During the hearing, the judge could even ask to see the police report in determining your fate.


  4. If you are arrested while on probation, the court may summarily revoke probation and incarcerate you without bail. You are intitled to a probation revocation hearing with all Fifth and Sixth Amendment rights. Being on probation can also affect bail on the new charges.


  5. It definitely is not fair, but as we know the system itself most definitely is not fair. The reason why you may still be found in violation of your probation is that there are differing standards of proof. To prove you guilty of a crime, a prosecutor must prove to the finder of fact (usually the jury) that you were guilty beyond a reasonable doubt. This is a much higher standard than proving you in violation of your probation which only requires a preponderance of the evidence (a feather over 50%). The reality is things differ jurisdictionally, county to county, and even court room to court room within counties in terms of how these things play out. In many counties your probation will not be violated if the case is dismissed or you win in trial. In other court rooms, you may win and may well immediately be found in violation of probation, and remanded and sentenced on the spot. You need to hire a skilled and knowledgeable LOCAL attorney who knows how to manuever your case in that local system. Good luck.


  6. The burden of proof for showing a violation of probation is lower. It is only preponderance of the evidence. Also, the court is more lax on allowing hearsay and you have no right to a jury trial for a probation violation. Theoretically, the prosecution could proceed only on probation revocation hearing before the court, and dismiss the criminal charge (which carries a jury trial right and higher burden of proof). That is not very common, however.

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