After someone is convicted of a crime, the court sometimes imposes probation as part of the sentence. During probation, the probationer (the person serving probation) is released from confinement, but remains under court supervision. This supervision typically requires the probationer to refrain from doing anything illegal and report regularly to a probation officer.
If one violates the probation requirements or commits another crime, he/ she can be arrested and required to appear at a probation violation hearing. Common probation violations include failure to pass a drug test, failure to report to the probation officer, failure to pay child support, and leaving the state without the court’s knowledge.
The Probation Hearing
At the probation hearing, the court will decide whether (1) the probationer violated probation, and if so, (2) what penalty to impose. The probation department, sometimes represented by the District Attorney, and the probationer both may present evidence and witnesses to show whether or not the violation occurred. To be subject to a penalty, the probation department must prove you committed the violation. Because you could be incarcerated as a result of this hearing, it is crucial to have an attorney familiar with probation law represent you.
If the court finds that you did violate probation, it will do one of the following:
- Continue the probation
- Terminate the probation
- Modify the probation terms by adding conditions or extending their duration
- Revoke the probation
If the court finds there was a violation, it will decide which of these to impose based on the probation department’s recommendation, public safety, previous violations, and the nature of the original crime and the probation violation.
Revoking probation is the most serious of these penalties. If the court decides to revoke probation, it may impose any suspended jail sentence for the original offense, and if there was no suspended sentence, it may impose any sentence the law authorizes.
In the extreme, a court could impose the maximum sentence for the original offense. This could be harsh given the violation could simply be a missed payment or lack of communication with a probation officer. Sometimes these things are honest mistakes and shouldn’t incur harsh penalties. Therefore, the accused needs an attorney to defend against the possibility of jail.
If the court believes the violation does not warrant incarceration, it could adjust the terms. For example, if there was a failed drug test, the court may order the probationer to undergo drug treatment. If the person visited a location the court prohibited him from visiting, it might require the probationer to remain under house arrest for the rest of the probation. The court could also impose community service as a way for the probationer to pay his debt.
Based on mitigating circumstances, and by showing the court why a violation is not serious, an attorney can convince a court to allow the original probation terms to remain without extra penalty, and in some cases even end the probation altogether.