Probation Violation: The Ultimate Guide 2022

In the unfortunate instance that you, a family member, or a friend are found guilty of a crime, there is a range of sentences a judge can impose. On the harsher end, there are prison and conditional sentences while the lighter end can mean discharge or community service. Probation falls right down the middle.

A judge will often hand down probation in lieu of a prison sentence where jail time may not befit the crime. Probation is typically given to support victims and offenders by providing a supervised, conditional reintegration with their community. Depending on the offense, 1 to 3 years is customary but may be extended to fit a particular crime.

How Probation Is Violated?

In normal circumstances, the probation will stipulate different conditions for the offender to abide by. This can include community service, reporting to a probationary officer or a rehabilitation visit with lawful behavior the minimum expectation. The defendant agrees to uphold the conditions laid down in their court appearance so they can be spared incarceration.

Where the defendant fails to maintain these conditions, they are deemed to have violated the terms of the probation. Violations vary from state to state and come in many different forms from deliberate disregard of the rules of your probation to unintentional lapses. They can be categorized as technical and substantive violations.

Technical Probation Violations

Technical violations extend to a defying of the terms of the probation which include:

•   Willfully or unwilfully missing a court hearing on an agreed upon date.
•   Failure to report to your probationary officer for a scheduled appointment.
•   Unwillingness or inability to pay fines ordered by the courts to the victims of a crime.
•   Visiting victims, known criminals, or other excluded people and places as outlined in probation.
•   Travelling out of state without the approval of your probation officer.
•   Incomplete community service.
•   Unfulfillment of court-mandated rehabilitation (Leaving a rehab facility without permission).
•   Failure to retain employment or attend further education.

Substantive Probation Violations

Substantive violations are the perpetration of new crimes while on probation. These should be avoided at all costs as they carry their own sentence plus the possibility of serving the original probated sentence. They include:

•   Possessing, using or selling of illegal drugs.
•   Committing further crimes.
•   Committing misdemeanors or offenses whether criminal or not.

What Are the Consequences of Violating Probation?

The implications following a probation violation depend largely on the severity of the offense. It is often left in the hands of the probation officer to adjudicate what happens next. The options available are to take no action, issue a warning or defer to the courts.

In making the decision, a probation officer will consider how serious the offense is, any and all prior violations, any mitigating circumstances, and the intention behind the violation. Where he or she deems it is warranted, they can schedule a hearing for the courts to decide the outcome.

If summoned to a probation hearing, the defendant appears before a sentencing judge. You will make your case to refute or suggest mitigation. The prosecution makes the case against you as to where the charges stem from. They need to prove the charges occurred by a preponderance of the evidence and not beyond a reasonable doubt. The judge will render a decision underscored by the same factors previously considered by the probation officer.

Where guilt is proven, the judge will then decide on what sentence is appropriate or in some cases mandated for violation of probation.

Legal Rights at a Probation Hearing

In the case of a defendant, it is essential to know and exercise your legal rights. You may not be ordered to attend the hearing but you should always be represented in your legal matters.  

The penalties in question can be reasonably trivial for unintentional violations but in more serious cases, legal representation is a must. In almost all probation hearings, your rights include:

• Written Notice – All defendants are entitled to be served with written notice of any violation they are being accused of.
• Legal Representation – In legal matters, you are entitled to ask for a defense attorney to give you the best legal assistance in your case.  
• A Fair Hearing – The onus of proof lies with the prosecution, meaning they need to prove their case against you. This requires a neutral and fair judge and a strong case supplemented by evidence and proof.
• Presentation of Evidence and Witnesses – Keep in mind that the preponderance of the evidence is a lower bar than reasonable doubt. Defendants should treat it as their duty to provide witnesses, evidence, and any proof that refutes or mitigates the claims of the violation.

For any person(s) served with a probation violation hearing, it is vital to not only know your rights but to protect yourself against further punishment. With the avenues open and sometimes mandated to a sentencing judge, you are at their discretion.

Possible Penalties and Punishment

While most will strive to reform themselves after a run-in with the law, probation violations do frequently occur. Where they are proven guilty at a probation hearing, there is a range of avenues for recourse.

Warnings

For first-time offenders guilty of a low-end technical violation, your probation officer can simply issue a warning. This warning goes on your record and if other violations occur at a later date, it will be counted against you. As the most lenient sanction, this is often your probation officer trying to give you a break.

Probation Modification

Where the probation officer or judge you appear before is not convinced a warning is adequate, they may change the conditions of your probation. Changes could mean needing to meet the officer more regularly to attending rehabilitation, counseling, or further community service.  

Fines

If the victim of the defendant suffered monetary or even physical impairment, a fine may be instituted to make them whole. Where there has been no effort made to pay or where a defendant has otherwise defied conditions, they can be subjected to further fines.

Fines are usually payable to the victims or original or new crimes or the court.

Contempt of Court

A contempt of court finding is usually reserved for a defendant who has failed to demonstrate remorse or has managed to dissuade a judge that they accept full responsibility. Contempt carries a 30-day sentence and gives the defendant a window into what life is like behind bars.

Probation Extension

An extension to the probation period is handed down where a probation officer does not believe the defendant is fully prepared to rejoin society unsupervised. The courts may impart an extension of up to 5 years probation for defendants who they think continue to pose a risk.

Probation Revocation

Clients who fail to show they are willing to make an effort or who commit further substantive violations risk having probation rescinded. In this instance, the defendant is recalled and must serve out the original prison sentence. These hearings begin with a motion to revoke probation with the court and often end with a warrant for arrest being issued.

How Much Time Can You Get for Violating Probation?

Individual state laws and statutes often set the maximum sentencing for probation violations. Judges have broad discretion in probation violation cases and can revoke probation meaning you would be required to serve the full term of a suspended sentence. Probation does not count toward time served. In numerous states, judges are compelled to hand down jail terms to severe violation probations.

In addition, depending on the severity of a substantive violation, a defendant may be prosecuted for new crimes that can hold a concurrent sentence.

Final Thoughts

Finding yourself in violation of probation leaves any defendant in a difficult situation. There are genuine cases where mitigating circumstances made the infraction unavoidable but where wilful disregard can be proven, the discretion afforded to the probation officer or judge is a real concern.

With serving out the original sentence as a possible punishment on the table, defendants should always avoid violating probation. However, if it does occur, enlist legal help. You are not privy to what day a judge might be having or how you might be treated on any given day. These things are out of your control but your rights are not. Ensure that you exercise your rights to their fullest extent to give yourself the best possible chance at a favorable outcome.