Instead of sending individuals convicted of a crime to prison or charging them fines, courts in Virginia commonly place these individuals on probation. Probation is actually the most common sentence given out in Virginia, with more than 60,000 criminals on probation in 2020. Rather than serving jail time, when on probation the offender will serve their sentence while living in their home and continuing with their usual employment. However, there are strict terms of the sentence that must be adhered to, and breaking these terms is known as a probation violation.
Probation violation in Virginia is a serious crime and consequences include finishing the remainder of the sentence in jail or paying court fines. This article will discuss in detail what happens when an individual violates probation in Virginia, including the hearing process, rights, and common defenses.
What are the Usual Conditions for Probation in Virginia?
In Virginia, a defense lawyer can negotiate a plea with the courts and seek a probation order, rather than the usual sentences of imprisonment and/or fines. Probation is only offered as a sentence for minor crimes, misdemeanors, and specific felony offenses, and is not offered in cases of violent offenses or major crimes such as rape or murder. A probation order is also much more likely to be sentenced if the defendant pleads guilty to their crime.
As outlined in the Code of Virginia, the courts will decide the exact conditions of the probation order. These conditions will determine the probation period and set the rules that work towards ensuring the offender behaves responsibly. The precise conditions and their severity will vary depending on the specifics of each case, but typically include:
- Avoiding any legal trouble and not committing any more crimes;
- Not leaving the state of Virginia without permission from the courts;
- Remaining in steady employment throughout the duration of the probation order;
- Reporting to a probation officer on a regular basis;
- Being regularly tested for drugs and alcohol;
- Performing community service during “free time” during evenings and weekends;
- Paying restitution to the victim for loss or injury; and
- Staying away from certain places or people as per a restraining order.
What Happens When You Violate Probation in Virginia?
A probation violation in VA is defined as when any of the conditions of the probation decided by the court are broken. This could include failing to report to the probation officer, not paying restitution to the victim on time, or having a positive drug or alcohol test result. Violating probation is seen as a serious crime, and by violating the probation order, both substantially and intentionally, the offender can face further criminal charges.
If it is believed that there has been a probation violation, the probation officer will first file an affidavit to the judge stating how the conditions have been breached. The judge will then file an arrest warrant and the offender will have to go to jail before appearing in front of the court. The court will then decide the appropriate course of action and imposed penalties during a probation violation hearing.
What are the Virginia Probation Violation Consequences?
The outcome of the probation violation depends on the nature of the infringement, with more severe breaches resulting in more serious punishment. For any penalties, the violation must also be intentional. Some common examples of probation violation consequences in Virginia ordered by the court include:
- Revoking the probation and ordering for the remainder of the sentence to be served in jail;
- Adding harsher terms to the original probation conditions, such as adding community service requirements or restraining orders if not initially included;
- Extending the probation term beyond what was originally imposed; and/or
- Serving a short jail sentence or having to pay a previously suspended fine.
What Happens at a Virginia Violation of Probation Hearing?
To decide the appropriate penalties for the violation of probation, there will be a violation hearing before the courts. During the hearing, the prosecutor will first outline the conditions they believe have been breached. Then to win their case, they will try to prove that the breaking of the conditions was intentional or due to carelessness. The defense attorney will then argue against the evidence by interviewing witnesses and investigating the claims in an attempt to reduce the penalties. Upon hearing both sides, a judge will determine the appropriate action.
It is important to note that all violation hearings involve someone who has already been convicted of a crime, and the defendant is not given the same rights as someone who is presumed to be innocent. Therefore, no jury is present at the hearing and only the judge will decide on the appropriate actions. In addition, convictions of probation violation do not have to be without reasonable doubt. Instead, the defendant may be convicted with preponderance, meaning a lower standard of evidence is needed to prove a case. All defense attorneys should be aware of this difference in standards when building their cases for a violation hearing.
Examples of Virginia Probation Violation Defenses
Anyone facing a probation violation hearing should seek legal advice from a criminal defense lawyer. There is a range of different arguments a lawyer working on the case may pursue. The choice of the angle depends on the evidence presented by the state. However, common examples of defenses for probation violation cases include:
- Challenging the credibility of drugs and alcohol test results in cases where the defendant has tested positive. They could also suggest drugs or alcohol counseling for the offender and other reduced penalties.
- Proving that there is a legitimate reason as to why the offender has been unable to pay fines to the victim. Examples of valid excuses include loss of employment or a family or financial emergency. In these cases, a new payment plan may be determined instead of further penalties.
- Investigating and disproving all claims of probation violation when the terms of probation have indeed been complied with. The attorney may interview witnesses and examine other areas of the crime to see where the inaccurate accusation of the prosecutor originated from.
- Proving that the breach of the order was unintentional, such as accidentally missing a meeting with the probation officer or a court hearing. By proving that the violation was unintended, there will be no additional penalties.
In Virginia, it is a privilege to be placed on probation rather than facing more severe penalties and punishments. Therefore, any offender should do their absolute best to adhere to the terms of their probation sentence. With that being said, probation violations in Virginia do occur and can arise both intentionally and unintentionally. Whereas accidental breaches are dismissed, deliberate or planned infringements of the conditions of probation can result in further criminal charges. The judge may determine stricter probation terms, revoke the sentence, or extend the probation period.
Any defense attorney working on a violation of probation case needs to be aware that offenders do not receive the same criminal rights, and individuals can be convicted with preponderance. For this reason, any defense case needs to aggressively disprove any evidence presented by the state. Alternatively, providing evidence that the offender broke the conditions unintentionally can have the charges dismissed.