A probation violation can occur in a few ways. One occurs when the probationer picks up a new criminal charge. Another type of violation occurs when the probationer allegedly fails to complete a certain aspect of probation such as checking in or complying with a particular program.
If the probation department feels that the probationer has violated a particular aspect of his or her probation, they will seek a probation violation hearing and inform the court of the alleged violations.
At the initial probation violation hearing, the probation officer will provide written notice to both the court and the probationer setting for the alleged violation(s).
At the initial hearing, the court will ask the probation department if they are seeking detention of the probationer. The court will make a determination if there is probable cause to believe that the probationer violated a condition of probation and, if so, whether the probationer should be held in custody. The court's decision on whether or not to order custody will include consideration of:
If probable cause is found and the court decides not to place the probationer in custody, the court may order additional conditions pending the probation violation hearing.
If no probable cause is found, the court may terminate the proceedings or the court may still schedule a probation violation hearing; however, the probationer may not be held in custody.
Probation Violation Hearings occur in a two-step procedure. First, the court determines whether or not the violation(s) occurred, and second, the court determines what should be done with the probationer if a violation of probation is found to have occurred.
It is important to know that at these hearings, certain evidence may be admissible, even though the same evidence would not be admissible at a trial. This is because the probationer does not have the same constitutional rights that he or she would have in a regular trial. For example, hearsay is allowed at a probation violation hearing - someone testifying to what someone else said. This is not the same at a trial because the defendant, there, has the right to face his or her accuser.
At a probation violation hearing, the probationer is allowed to present evidence to show the court why a finding of no violation should be found. This is extremely important as it could easily mean the difference between being free or being sentenced to jail or prison.
It is critical to be represented by a firm that knows the ins and outs of probation violation hearings, especially as they could result in a jail or prison sentence, depending on what the underlying offense was and what the court may legally impose for that offense.
Many people mistakenly believe if a violation is found, that it automatically means a probationer will be sent to jail or prison. Imposing a sentence is not the only thing a court can do if a violation is found, and, in fact, there are many other options available to a court, which would allow the probationer to continue with his probation.
If a violation is found, a court may do the following:
If the underlying offense was given a continuance without a finding ("CWOF"), and a violation of probation is found, the court may impose:
At a probation violation, it is important to not go it alone. Make sure you know your rights and get the representation that you deserve; contact BISSON LAW today!