Understanding Probation Violations in Virginia

The laws regarding probation violations were changed significantly on July 1, 2021. This guide attempts to summarize the changes to probation violation sentencing as succinctly as possible.

1. Probation Violations in General

   Probation is an alternative to incarceration that is offered by the Court whenever a person is sentenced as the result of a criminal conviction. There are 11 terms and conditions of probation which apply to all individuals placed on supervision in the Commonwealth of Virginia. Those include:
   1. Failure to obey all Federal, State, and local laws
   2. Failure to report any arrests within 3 days to probation officer
   3. Failure to maintain employment or to report changes
   4. Failure to report as instructed
   5. Failure to allow probation officer to visit home or job
   6. Failure to follow instructions, be truthful, and cooperate with probation officer
   7. Use alcoholic beverages
   8. Use, possess, or distribute controlled substances or paraphernalia
   9. Use, own, possess, transport, or carry a firearm
   10. Change residence or leave Virginia without permission
   11. Abscond from supervision.
   
   The Court also may issue what are known as "Special Conditions" of probation which may include, for example, a limitation on people whom the probationer may associate with or a requirement to pay restitution in accordance with a schedule imposed by the Court.
   
   Failure to obey any of the enumerated 11 conditions or a special condition of the Court will result in a violation being issued which could result in the probationer's arrest and incarceration for a period of their previously suspended sentence.

2. What is a technical violation?

   Virginia Code Section 19.2-306.1 distinguishes between "technical violations" and other violations. A technical violation is a violation of enumerated conditions 2 through 11 listed above. A violation of condition 1 for a new conviction or a violation of a special condition are not treated as "technical violations". Of the conditions which fall into the category of "technical violations", two are treated differently than the others; condition 9 and condition 11.

3. What will happen for my first technical violation?

   The new change in law is very friendly to probationers, especially for their first two technical violations. For first violations of conditions 2, 3, 4, 5, 6, 7, 8, or 10 the Court is limited to imposing no active incarceration. First violations of conditions 9 or 11 are treated differently, however, as even first violations of those conditions are treated as "second technical violations".

4. What will happen for my second technical violation?

   Second technical violations have a little more bite to them, however, the Court is still limited as to the amount of time that it can impose. Second technical violations of conditions 2, 3, 4, 5, 6, 7, 8, or 10 are limited to the imposition of no more than fourteen (14) days of incarceration. As stated above, first violations of conditions 9 or 11 are treated as second technical violations and therefore carry the possibility of up to fourteen (14) days of incarceration.
   
   It is important to realize that the Court may exceed these limitations on imposable jail time should the incarceration be necessary in order to allow the probationer to be engaged in or screened for a substance abuse treatment or mental health treatment program.

5. Third Technical Violations, Condition 1 Violations, and Special Condition Violations

   If the probationer has reached their third technical violation of conditions 2, 3, 4, 5, 6, 7, 8, or 10; committed a new offense in violation of condition 1; or violated a special condition imposed by the Court, then the Court has the ability to impose up to the entirety of the previously suspended sentence imposed at the probationer's last sentencing event.
   
   The Court will consider Probation Violation Guidelines, which will take into account a number of factors about the probationer's violation and supervision history in order to recommend an outcome with regard to sentence. These guidelines are only recommendations though and it is important to realize that the Court may deviate upwards or downwards if good cause is provided on the record for doing so.

6. What to do if you are facing a probation violation

   Probation violations are very serious matters and could lead to the loss of your liberty for even trivial failures which you may feel were beyond your control. It is vitally important to have an attorney on your side to present your case in the best possible light to the Court in order to minimize the consequences of your violation.