An accusation of probation violation will result in a court date with the Judge who sentenced you or the Judge who is now in charge of your original Judge’s docket. Probation violations are often treated seriously by Judges for a number of reasons, including: protecting the integrity of the judicial system, protection of the community, deterring others from violating probation, deterring the probationer from reoffending, and the need to rehabilitate the offender.
Whether or not the probation violation will result in a jail or prison sentence depends upon a number of factors:
- Did the probationer actually violate his or her probation? The probationer has the right to a contested hearing before the Judge assigned to the case. At that hearing the probationer is presumed innocent, and it is up to the prosecution to prove by a preponderance of the evidence (that it is more likely than not true that he or she violated his or her probation). The probationer has the right to be represented by a lawyer. The probationer has the right to cross examine witnesses, and subpoena witnesses. The probationer can choose to testify or remain silence and not have the silence considered against the probationer in any way. If the probation violation cannot be proven, the probationer has the right to continue on probation.
- If the probationer admits to violating probation and pleads guilty or no contest to the probation violation or is found guilty after a hearing the probationer is at the Judge’s mercy. The Judge is only constrained by the maximum penalty that the underlying conviction charge carries. However, there are a number of factors that can influence the Court:
- What is the nature of the probation violation? Some probation violations are more serious than others. Failure to pay court costs, especially when the probationer is poor, is a lot less serious than being convicted of a new serious criminal offense. Violations that attack the integrity of the judicial process (for example, tampering with drug testing) often are dealt with more harshly than other violations. Violations that potentially place the public at risk also may result in a severe sanction (for example, while on probation for DUI continuing to drink and drive);
- Has the probationer violated probation before? Some Judges may allow a probationer to continue with probation after a probation violation. If the probationer violates a second or subsequent time, the odds increase that incarceration can occur. The Judge may feel that he or she has run out of options;
- Are there any mitigating circumstances for the violation? For example, if the probationer missed reporting due to a death in the family may produce sympathy from the Court. It is important to have an experienced lawyer present the mitigating circumstances to the Court;
- What is the probationer’s criminal record? Some Judges may be willing to take a chance on a Defendant with a prior history, but punish more severely for a probation violation. The Judge might be lenient at the time of the original plea to encourage a case resolution short of trial, and take a “catch you later” approach to the Defendant;
- What type of legal representation did the probationer receive? A lawyer that provides a compelling explanation for the probation violation, or mitigating circumstances, may convince a Judge to be lenient;
- What is the recommendation of the probation department? Some Judges are basically rubber stamps for what the probation department recommends. The tact the lawyer needs to take on these types of Courts is to try and convince the probation agent to make a favorable recommendation;
- What is the position of the prosecution? Some prosecutors are more aggressive than others. Some might not have a position. Others may try and advocate the probation department’s position, or even a harsher position.
- What is the position of the victim? Crime victims have a right to be heard by the Court. When the victim is upset due to lack of restitution or violations of no contact provisions the Court is likely to take notice;
- Who is the Judge? Judges run the gamut from liberal to conservative. Some Judges have offenses and probation violations that they view more strictly than others;
- What sentencing alternatives are available? If the probationer used drugs while on probation, is there any rehabilitation programs to treat the probationer? If the probationer has a mental health issue, are there professionals who can properly treat the probationer’s disability? Possibly community service could be performed in lieu of jail or prison? Is a tether or house arrest an alternative?;
- Is the Judge compelled to incarcerate by operation of law? For example, some offenses may carry a mandatory minimum that is avoided by a sentence option such as Holmes Youthful Trainee Act. The revocation of the sentence option may force the Judge to give a particular sentence;
- What is the Judge’s mood? Just like anyone else, Judges have good days and bad days. His or her mood on a particular day can affect the sentence imposed. When a lawyer is aware that the Judge is having a bad day, the lawyer may try and get the case adjourned to another day;
- How long has the probationer been on probation? If the probationer is near the end of his or her probationary term, the Judge may cut the probationer a break depending upon the nature of the violation.
For any probation violation, the first step is to hire an experienced probation violation lawyer such as Attorney Daniel Hilf of Hilf & Hilf, PLC. Again, probationers are at the Judge’s mercy once the violation has been established. The best way to try to avoid the possible penalty is to have the right legal solution at your side.