When a person is placed on probation for a criminal offense or criminal traffic offense such as DUI, he is required to comply with all of the terms and conditions of probation. If he does not comply, and probation alleges a violation or multiple violations, the probation department will typically file a motion to revoke probation. This motion is also known as a petition to revoke or modify probation or a probation violation complaint.
A probation violation complaint is a serious matter with serious consequences. When probation files a complaint, they are typically alleging that the person (“probationer”) is unwilling to follow the rules of probation and therefore the person should be re-sentenced to a term of jail.
If a complaint is filed, it must state to the court what the violation was and when it occurred. The probation officer may command the probationer to appear via summons (notice to appear) or he may obtain an arrest warrant. However, sometimes a probation officer will arrest a probationer without a warrant. If this occurs, the probationer must be taken to the closest available judge of a court of record. A probationer is entitled to have a bond set and be released on bond during the pendency of the probation revocation hearing.
There are no jury trials regarding an alleged probation violation. The trial (hearing on the violation) is to the Court and the exclusionary rule does not apply. A probationer may confront and cross-examine witnesses called to testify against him. And he may testify on his own behalf. Hearsay is allowed in evidence if it is reliable. The Court will follow what it calls “relaxed” rules of evidence. This means the rules somewhat apply. It’s up to the Judge to determine how relaxed the rules will be in the hearing.
The burden of proof is on the prosecution to establish that a condition of probation was violated by a preponderance of the evidence. The standard of beyond a reasonable doubt does not apply here unless the violation is alleged to be a new criminal offense. If the criminal offense has already resulted in a conviction, the prosecutor must only prove the existence of the conviction by a preponderance of the evidence.
If the probationer is alleged to have not made payments as required, the prosecution must show that the probationer has the ability to pay.
In order to prove a violation of probation, the condition alleged to have been violated typically must be in writing as a term/condition of probation. Sometimes a Court will sustain a violation for certain conditions that were not in writing depending upon the facts and circumstances of the case.
If a probationer is in custody for a violation, the Court has 15 days to try the probationer on the complaint. This 15 day rule may be waived or extended for good cause.
If the violation is proven, the Court will revoke the probationer’s probation or continue it.
If probation is revoked, the Court may re-sentence the person to any sentence it could have imposed at the original sentencing, including incarceration. The Court is not bound by the terms and conditions of the original plea agreement in which the person was granted probation. Any statutory sentence may be imposed.
If the court suspended a sentence conditioned upon the probationer’s successful completion of probation, the Court may not impose a more severe sentence than that originally suspended. In this instance, the Court is limited by its original suspended sentence.
If you have been charged with a violation of probation, it’s critical to obtain experienced counsel to handle the complaint. There are many things that can be done to assist a probationer in achieving the best result possible. Contact Attorney Monte Robbins today for a free case evaluation at 303-355-5148, or 970-301-5541.