Your criminal case is now over either because you entered into a plea agreement or because you were found guilty after trial. The court has placed you on probation and gives you conditions that you have to follow while on probation. The last thing you want to receive is a Notice of Probation Violation and Hearing.
There are many different kinds of probation violations. Some are taken more serious than others and result in more severe punishment than others. The more serious probation violations include being charged with a new crime or repeatedly committing the same violation. For example, if you are supposed to stay drug free with random testing and repeatedly fail your drug tests, the court will take this more serious than if you fail one time, seek treatment, and have no further failed tests. Other probation violations include failing to pay your probation supervision fees, failing to perform community service, not staying drug/alcohol free or failing any of the conditions imposed upon you for your probation.
The Notice of Probation Violation and Hearing will list which conditions the probation department believes you violated. The notice will also list the date, time, and place of the hearing. The hearing is supposed to occur within seven days of you receiving the notice of the violation but you can waive the period of time. If you waive that period of time, then the hearing must be held within 30 days. Normally, the hearing is held 30 days after the notice of violation is given to you.
Probation Detention Hearing
Once you have been notified of the probation violation, probation can move for a probation detention hearing to determine whether you should be held in custody prior to the probation violation hearing. First, the judge has to decide if there is probable cause to believe that you violated the conditions of your probation, and if the judge finds that there is, then the judge has to decide whether you should be held in custody until your probation violation hearing. If you are on probation and have been arrested in a new case, probation will often request you be detained pending the probation violation hearing. The judge will consider certain factors in determining whether you should be detained:
- your criminal record,
- nature of the offense you are on probation for,
- nature of the new charges, if any,
- nature of any other pending probation violations,
- the likelihood you will appear at the probation violating hearing if you are not held in custody, and
- the likelihood you will be incarcerated if you are found to have violated your probation.
If the judge finds that there is probable cause to believe a probation violation occurred, but does not order you detained until the hearing, the court can order you released on certain conditions. These conditions can include stay away/no contact order, GPS monitoring, or a stay away/no contact order.
Probation Violation Hearing
A probation violation hearing is conducted in two steps. First, the court determines if there was a violation of probation. If the court determines there was a violation, then the court determines what the punishment should be. The probation department must show by a preponderance of the evidence that a violation occurred. This is a much lower standard than proof beyond a reasonable doubt. If a violation is found, the probation officer and your attorney will be able to argue what the appropriate punishment should be. Sometimes that means no additional punishment and you just get re-probated. Sometimes it means extending your probation, adding conditions like drug or alcohol treatment, and sometimes it means incarceration.
You can also stipulate to the violation of your probation and waive your right to a hearing. If you stipulate to the violation, then the probation department and your attorney both have a chance to argue to the court what your punishment should be. Often the probation department and your attorney will be in agreement about the punishment. However, it is always up to the judge. Even if the probation department and your attorney decide you should remain on probation, the judge could sentence you to the House of Correction anyway. Generally though the court will go along with the recommendation of the probation department and your attorney.
Importantly, courts can no longer put off deciding whether a person with a new criminal charge violated probation until the new criminal charge is disposed of. For example, John is charged with Breaking & Entering. He is found guilty after a trial and received one year of probation. John is then arrested for Assault & Battery on a Household/Family Member for striking his girlfriend. John will face a probation violation hearing because he is charged with a new crime. It does not matter that John’s girlfriend does not want to go forward with the charges or ultimately takes her 5th and refuses to testify against John at the trial on the new charge. The judge can find John in violation of his probation and sentence him to the House of Correction on the Breaking & Entering charge for violating the terms of his probation.
Punishment
When determining the punishment, the court is supposed to consider the recommendation from:
- the Probation Department,
- your attorney,
- the District Attorney (if they have a recommendation),
- public safety,
- circumstances of the crime you were placed on probation for,
- nature of the probation violation,
- occurrence of any previous violations,
- impact of the underlying crime on any person or community, and
- any mitigating factors
The court will then decide whether to continue your probation, terminate your probation, modify the terms of probation, or revoke your probation. If your probation is revoked, and you have a suspended sentence on the underlying offense, then the court must impose the suspended sentence. If there was no suspended sentence on the underlying offense then the court has the authority to impose any sentence up to the maximum incarceration stated in the statute for that offense. The best defense is a good offense. Once you tell us the facts and circumstances of your case, we can come up with a game plan to either defend you against the violation itself or propose an alternative to incarceration if you are found to have violated your probation. This often means seeking drug/alcohol treatment, mental health counseling, paying the overdue fees, or addressing the nature of the violation in another way.
If you received a continued without a finding disposition, your attorney should have informed you that if you successfully complete probation then your case will be dismissed. If, however, you violate the conditions of your probation the court can revoke the continuance, enter a finding of guilt and impose a sentence. This means you will now have a conviction on your record.
At Sweeney & Associates, we are frequently representing clients at probation violation hearings. If you are facing a probation violation, we can help you! Contact us at Sweeney & Associates today for a free consultation. You can contact us at (617) 328-6900 or reach us by email at mail@rsweeneylaw.com.