Probation is that portion of the sentence an individual serves while not physically in custody but subject to the supervision of the Department of Corrections. A person on probation lacks most of the Constitutional protections that individuals not serving a sentence have despite living in society. Typically you will hear a sentence such as five years with all but one year suspended and two years of probation. This means the individual who receives a sentence such as this will serve one year in custody. The individual will be released on probation at the end of one year minus any good time credit that was earned. The person will be on probation for two years and subject to numerous probation conditions. If the individual violates their probation they could return to prison for the remainder of the sentence. In the example above that would be four years. The amount of time served on probation does not result in the potential incarcerated portion of the sentence being decreased.
The standard conditions of probation are as follows:
Individuals convicted of a drug offense, OUI, or where the fact patterns indicates alcohol or drugs were involved can expect the following special conditions of probation to be added to the above:
Individuals convicted of domestic violence crimes can expect an additional condition requiring the successful completion of a court approved batterers intervention program (BIP), no contact with the named victim, and judicial monitoring.
Individuals convicted of a sex offense can expect additional conditions of having to successfully complete sex offender counseling, no contact with the named victim, no contact with anyone under the age of 18 (depending of the facts of the offense), registration as a sex offender, and no use of a computer with access to the internet (depending on the offense).
When the facts of the case indicate that an individual can benefit from psychological or mental health counseling they can anticipate a probation condition that requires them to undergo a psychological evaluation and successful complete any recommended counseling.
If a probation officer has probable cause to believe that a probationer violated their conditions of probation then the probation officer may file a motion to revoke probation or give a warning. If a motion is filed or a warrant is requested with the court the probation time stops running (tolled) and is eventually added on to the period of probation once the motion to revoke and sentence is resolved. If a probation officer files a motion to revoke probation they can issue a summons to the probationer to appear in court to answer to the motion or arrest the probationer. At the first or initial appearance on the motion to revoke probation the court advises the probationer of the contents of the motion, the right to a hearing on the motion, the right to be represented by counsel at the hearing, and the right to have counsel appointed if the probationer is facing a risk jail and cannot afford counsel. The Court at the initial appearance will call upon the probationer to either admit or deny the motion to revoke probation. The court will then address the issue of bail. Since this is a post-conviction proceeding the individual on probation is not entitled to have bail set. The probationer is entitled to be admitted to bail if the court finds there is probable cause to believe (1) there is no substantial risk that the probationer will fail to appear as required and will not otherwise pose a substantial risk to the integrity of the judicial process, (2) there is no substantial risk the probationer will pose a danger to themselves or to the community, and (3) there is no substantial risk that the probationer will commit new criminal conduct. The matter will then be set for a probation revocation hearing. If a hearing is held the probationer must be afforded the opportunity to confront and cross-examine the witnesses against the probationer, present evidence on the probationers own behalf, and to be represented by counsel. Reliable hearsay (the statement of somebody other than the one who is testifying) is admissible at probation revocation proceedings. If the alleged violation in the motion to revoke constitute a crime for which the person on probation has not been convicted the court may revoke probation if it finds by a preponderance of the evidence that the person on probation committed the crime. If the alleged violation does not constitute a crime and the court finds by a preponderance of the evidence that the person has inexcusably failed to comply with a requirement imposed as a condition of probation, it may revoke probation. Upon a finding of a violation of probation, the court may impose all, part, or none of the underlying sentence considering the nature of the violations and the reasons for granting probation in the first place. The remaining portion of the underlying sentence that is not revoked remain suspended and subject to revocation at a later date for proven subsequent violations. Most probation matters are resolved with an agreement between the probationer and prosecution.
Criminal Defense Attorney