Written by attorney Andrew Michael Limberg

Probation Revocation

Some defendants convicted of a felony, whether through a plea or jury verdict, avoid prison by receiving a grant of probation from their sentencing judge. Probation is a conditional release of the convicted defendant under certain terms and conditions. For example, someone placed on probation after pleading guilty to drug possession may be ordered to stay away from drugs. Likewise, a convicted gang member may be ordered to stay away from other gang members. Most probationers waive their Fourth Amendment right against unreasonable searches by police in order to remain on probation. There are many other conditions imposed by courts depending on the particular defendant and the facts of the case. Judges often craft the conditions of probation to address the crime committed in an effort to encourage rehabilitation.

During their term of probation, often lasting several years, probationers are monitored by a probation officer. Normally, probationers must check in with their probation officer at regular intervals, although it is not uncommon for probation officers to randomly check up on their probationers. If a probation officer discovers a probationer in violation of his conditions of probation, the probationer may be arrested or otherwise ordered back to court to answer for the violation at a probation revocation hearing. Prior to the hearing, the probation officer is required to submit a report to the district attorney and judge outlining the alleged violation and recommending a suitable punishment.

The Sixth Amendment guarantees probationers the right to an attorney. This right not only extends to probation revocation hearings, but also to every step in the process leading up to the hearing. If you are a probationer who suspects your probation officer may "violate" you, you should contact a defense attorney immediately. Oftentimes, violations arise out of a misunderstanding between a probation officer and his probationer. A knowledgeable defense attorney can speak with a probation officer and set the record straight before erroneous information is placed in the probation officer’s report and submitted to the judge. Likewise, a good defense attorney can offer the probation officer alternative ways to deal with actual violations, resulting in a less severe recommendation by the probation officer. Nevertheless, sometimes a probation revocation hearing is necessary in order to clear the air.

Probation revocation hearings normally involve two steps: (1) a preliminary revocation hearing, possibly followed by (2) a full evidentiary hearing.

At the preliminary revocation hearing the judge will simply ask the probationer whether he admits or denies the violation. Oftentimes, if the probation violation is minor and the evidence against the probationer is strong, it may be better to admit the violation and ask the judge to "reinstate" the grant of probation. The judge may appreciate the probationer saving everyone a lot of time and effort associated with a subsequent evidentiary hearing. However, simply admitting the violation and throwing yourself on the mercy of the court is a risky proposition unless you are intimately familiar with that judge and his temperament. You need to know ahead of time what the judge considers a "minor violation" and whether he normally reinstates probation in similar cases. Don’t go into the preliminary revocation hearing blind, consult your defense attorney and have a game plan prepared before appearing before the judge.

If a probationer denies violating the conditions of his probation at the preliminary revocation hearing, the judge will temporarily revoke probation and schedule a full evidentiary hearing at least a week later if there is probable cause to believe a violation occurred. This hearing occurs before a judge, not a jury. At the evidentiary hearing, both the prosecutor and defense may call witnesses and introduce evidence to either prove or refute a probation violation. However, unlike a trial where the prosecutor’s burden is to prove his case "beyond a reasonable doubt," at the evidentiary hearing the prosecutor is only required to prove his case by a "preponderance of the evidence."

Although the evidentiary hearing is not a full blown trial, there is still a lot at stake. Ultimately, the judge will determine whether the probationer is reinstated on probation or sent to prison. For this reason, proper preparation and presentation of the probationer’s case is essential. Many probationers have difficulty expressing themselves in court. Fortunately, a probationer can obtain a defense attorney to speak on his behalf, as well as present evidence which will back up the probationer’s case. A thorough defense attorney is in a position to ensure all exculpatory and mitigating evidence is brought to the judge’s attention in the most effective manner.

If things go awry at a probation revocation hearing, a good defense attorney can still decrease the consequences. In some cases, when a judge revokes probation he still needs to decide how much time the probationer will serve in prison. In that case, a talented defense attorney can submit a compassionate and persuasive sentencing memo arguing for the most lenient sentence possible. In other cases where the judge is obligated to sentence a probationer to a predetermined amount of time in prison after revoking probation, there is still a short window of time for a defense attorney to intervene and convince the judge to reconsider the sentence.

Having probation revoked is no laughing matter. The consequences can be severe. A probationer fearing a probation violation should protect his rights and enhance his chances of a good outcome by consulting a reputable defense attorney as soon as possible.

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