There are four steps to the violation of probation process:
- The Initial Arrest
- First Appearances and Bond
- A Violation of Probation Hearing
- The Sentencing
Although these steps are similar to that of your initial charge, you do not have the same rights and protections when you violate your probation. In a violation of probation case there is no right to bond, no right to a speedy trial, and no entitlement to be found guilty beyond a reasonable doubt.
The Initial Arrest
When the probation officer or “P.O.” thinks you have done something wrong on probation they submit an affidavit to the judge. This affidavit explains the reasons he or she feels you have not complied with the rules of your release. The judge reads the affidavit and signs a warrant for your arrest based on what the P.O. said in the affidavit. Once the warrant has been issued by the judge you will be arrested. The local deputies will arrive at your home to serve the warrant or you will need to turn yourself in to the jail. Either way, your going to jail will start the violation of probation case. Once you arrive at the jail you will be given a court date.
Important! If you are on felony probation, your P.O. has the authority to violate you and take you to jail immediately without a signed warrant. This is also true of polic officers who investigate you for other crimes while you are on probation.
In rare occasions a summons will be issued instead of your being taken to jail. A summons avoids your need to be taken to jail as long as you report to the court on the date listed in the summons. A summons for a violation of probation is usually issued when the charge is a misdemeanor or when you have almost completed all of the terms of your probation. It may also be used if the only reason for your violation is that you could not come up with all of the money you needed for fines or court costs.
First Appearances and Entitlement to Bond
If you are arrested and taken to jail for your probation violation you will be taken to first appearances to determine a bond. There is no entitlement to bond in a violation of probation (VOP) case. Some judges will allow a bond to be set and some won’t. Most won’t.
Bonds for probation violations are more common in cases where there is a technical violation or where many terms of the probation have already been completed. In cases where the only violation is not paying fines or court costs on time a bond is usually given.
How long before the hearing?
Because there is no entitlement to bond in most cases you will have to remain in jail until your violation of probation hearing. The amount of time between the arrest and the hearing varies in different jurisdictions. If you are in a jurisdiction that has “early case resolution” or “fast track” or similar program to speed up the VOP cases on the docket, your violation of probation hearing will probably take place within two weeks. If your jurisdiction does not have these programs it could take up to three months for your hearing to be set. Maybe even longer in jurisdictions that have large dockets.
If your violation is a substantive or new law violation, your attorney may choose to continue your VOP hearing until the new charge is resolved. In many cases, if you are found not guilty on the new charge or if the new charge is dropped, the VOP is dismissed.
In rare cases, even if the new law violation is dropped or if you are found not guilty, the State will insist on a VOP hearing anyway. This is because the standard of proof is lower in a VOP than in a normal criminal case. So the State has a better chance of convicting you.
If you have a bad record, if you have beaten several other charges in the past or if the State thinks you are involved in organized crime, the State will pursue the VOP. The State will use the fact that it is easier to convict you in the VOP as a way to get you to confess to other crimes, to plea to pending charges or as a way to put you in jail when they don’t have enough evidence to convict you of other crimes.
The Violation of Probation Hearing
A violation of probation hearing is similar to a non-jury trial. There is no entitlement to a jury for a violation of probation, rather the case is decided by a judge. If you have a hearing the judge will listen to the legal arguments from both sides and make a decision on your case based on them and the preponderance of the evidence.
The Standard and What the State Must Prove
In order to be found guilty the court must find that the violation was willful and substantial by a preponderance of the evidence. In some states this standard is referred to as reasonably satisfactory evidence. This is the same standard used in civil trials. Whether your jurisdiction uses the term “preponderance of evidence” or “reasonably satisfactory evidence” it all means the same thing. It means that the judge just has to decide that it is a little more likely than not that you committed the violation.
“Willful” means that you meant to do it, that you meant for it to happen, or that you did nothing to prevent it from happening when you had the ability to do so.
- The most common example of a willful violation is a positive drug test. It is very difficult to come up with a reason that drugs would be in your system without you willfully taking them.
- The most common example of a violation that is not willful is the failure to pay court costs when you are unemployed or have no income. If you have no ability to pay because you are homeless or out of a job then it is difficult for the State to prove you had the intent to not pay the costs.
“Substantial” means that it impacted your probation in a meaningful way.
- The most common example of a substantial violation is not reporting. If you do not report to your probation officer then it makes a big impact. The officer has no way to verify you were doing what you were supposed to be doing.
- A new law violation is also a substantial violation. That is why they are called “substantive violations.” Picking up a new charge while the court trust you not to get into any trouble is a big deal.
- A violation that would not be substantial is a minor thing such as being late in completing your conditions. For example, if you are ordered to pay restitution within 3 months, but it takes you 4 months to pay it that would not be a substantial violation. It was later than the court ordered, but it did not make a severe impact on your sentence.
How the Hearing is Conducted
VOP hearings generally follow these standard procedures:
The State Presents its Case
The State goes first in a VOP hearing. Usually the only witness is your P.O. The P.O. testifies as to what conditions he or she feels you have violated. The State or your P.O. may introduce documents such as lab reports or probable cause affidavits as evidence that you tested positive or committed a new law violation.
After the State questions the witness, your attorney will cross examine them. Your attorney may also object to introduction of some types of evidence. Your attorney will try to get the witness to admit that the violation was not willful, not substantial or that there was a problem with the evidence that was introduced. Any of these admissions can help your case.
Then Your Attorney
Once the State finishes calling all of their witnesses and introducing their evidence, your attorney will call any witnesses that may help you. Your attorney will question your witnesses. Then the State will have an opportunity to cross examine them.
After your attorney finishes calling all of your witnesses, the State has an opportunity for rebuttal. It is rare that the State puts on a rebuttal case. Usually after your witnesses the Judge will hear closing arguments.
Closing Arguments
At the closing arguments the State will argue that you violated your probation. Your attorney will argue that the evidence shows any violation was not willful or substantial. The judge then weighs all of the testimony and makes a decision.
Unlike regular criminal cases, hearsay is allowed in a VOP hearing. But it can not be the sole basis for the conviction. The evidence rules in VOP hearings are less strict than those of a regular case. This means the Judge allows more evidence to be introduced in a VOP hearing than what may be allowed in a regular trial. This may be good but in most cases it means the State can introduce more evidence against you.
The Judge’s Decision
A VOP conviction is judged by a preponderance of the evidence. In simplest terms, a preponderance means it is 51% more likely than not that you violated. If the judge determines that it is 51% more likely than not that you violated your terms of release you will be found guilty. If you are found guilty you will be sentenced. If it is found that you did not violate your probation you will be released.
If you are found not guilty and released you will still be on probation! Unless the judge tells you otherwise, you will still have to report every month and keep up with your terms. Being found not guilty of the violation does not end your probation sentence.
Sentencing
There are several possibilities for sentencing if you are found guilty of a violation of probation. In a violation of probation you may be sentenced to ANY punishment that you could have received originally. This means if you could have been sentenced to prison, you could be sentenced to prison for the violation. If you can only receive probation you must get probation. It all depends on the original charge. However your sentence can’t exceed the statutory maximums. The possible sentences for a violation include
- Time Served
- Reinstatement
- New Probation Sentence
- Jail or Prison Time
Time Served
If the judge determines that you have spent enough time in jail between the arrest for the violation and the sentencing, the judge may give you time served. Time served is a popular sentence when you are found guilty of a violation of probation and the original charge is a minor one. The common crimes that involve time served offers are petit theft, prostitution, possession of marijuana, driving on a suspended license and uttering charges.
Reinstatement
Reinstatement means that you go back on probation to complete the original terms. If you are reinstated you are not given more time on probation. You are just allowed to finish out your original probationary term and conditions as if you were never violated. Sometimes they will give you additional terms such as more community service hours or drug counseling. But you don’t have to serve any extra time.
New Probationary Term
At times the judge will want to put you back on probation. But there may not be time for you to complete the terms in the time you have left on your original probation sentence. In these cases the judge may give you a new term of probation instead of reinstating the old probation so that you have more time to do the things the judge wants you to do.
Jail or Prison Time
Jail or prison sentences are the most common punishments when a person is found guilty of a violation of probation. The rationale is that if you didn’t do it right the first time then you won’t do it right the second time. So jail is the only appropriate solution. Even if you have completed almost the entire probation term, you can still be sentenced to the maximum amount of jail time for your violation.
How Time is Calculated for your VOP Sentence
If you are reinstated or given a new probation sentence for your violation of probation, then you must be given credit for any previous time you successfully spent on probation. If you are sentenced to jail or prison, you must be given credit for the time you already spent in jail or prison. But the probation sentence and the jail sentence do not overlap.
For example, in most states a third degree felony is punishable by five years in prison. This means five years is the maximum sentence. If you were originally sentenced to three years of probation, and you complete two of the three years before you violate, the judge can still give you five years in prison as a punishment. This is because you didn’t get any jail time the first time around. But if you are sentenced to five years of probation, you will only have to serve three years because you already have completed two years of probation successfully.
This seems very unfair and it has been challenged several times in the courts. But the courts have consistently upheld that this is allowed.
