In California, you receive several forms of punishment following a conviction, including incarceration, fines, and probation. The court imposes probation instead of incarceration and is offered to defendants with no extensive criminal history. Although probation allows you to spend part of your entire sentence out of custody, the court will impose strict conditions that you should obey during probation. The requirements attached to your probation vary based on your underlying criminal charges.
Violating one or multiple probation conditions could attract an arrest and charges for probation violation. The consequences of a probation violation are serious and could include probation revocation and return to jail to serve your original or maximum prison or jail sentence. If you face probation violation charges, you will require the guidance of a skilled attorney. At Los Angeles Criminal Attorney, we offer the legal insight you need to navigate and win a probation violation hearing in Los Angeles, CA.
Understanding Probation Violation
Probation is a court-ordered period of supervision for a convicted offender. Often probation is an alternative to incarceration and is not available for all defendants. To be sentenced to probation, your lawyer must negotiate with the prosecution. The court offers probation for first-time offenders facing charges for less severe offenses.
Additionally, probation is not mandatory. Therefore, if it does not serve your interests, you can decline the offer and serve jail or prison time. With a probation sentence, you will serve part of your entire sentence out of jail and on community service. The only requirement for probation is for you to follow through with the court-imposed probation terms. In California, pronation could be formal or informal depending on the nature of your conviction:
Felony or formal probation is issued instead of a prison sentence after a felony conviction. If you face a conviction for a felony offense, the court will allow you to spend a portion of your sentence serving the community. Formal probation lasts three to five years. When the court sends you to felony probation, the judge appoints someone to monitor your progress.
The supervision by the probation officer is to ensure that you remain in the state and confirm that you have sought meaningful employment. In addition to monitoring your progress, the probation officer must write periodic reports on your conduct and ability to follow the probation conditions. If you violate a probation condition, the probation officer is responsible for reporting the violation and initiating a probation violation hearing.
Due to the seriousness of some felony charges, the court cannot offer all defendants probation. The probation department will evaluate different aspects of your case to determine your suitability for the reduced sentence. Some factors affecting your eligibility include the following:
Your juvenile and adult criminal record. Defendants with extensive criminal records are less likely to be sentenced to probation than prison time.
The severity of your conviction. If you face charges for a violent, sex-related crime , or gun offense , you are not eligible for felony probation.
Your willfulness to comply with the probation terms
The effect of incarceration on your life
If the judge grants you felony probation, you should follow the following conditions:
Regular check-in with your probation officer throug h the period of probat ion
Complete a certain number of community service hours
Mandatory drug testing
Complete your alcohol and drug treatment programs
Travel restrictions. While on felony probation, you must remain in the jurisdiction . If you have an essential matter out of state, you must report it to the probation officer .
Avoid committing other crimes while on probation
Submit searches of your person and property.
Avoid relationships with certain people.
Failure to comply with these conditions could attract an arrest and charges for probation violation.
Misdemeanor probation is a supervisory sentence that is an alternative to spending time in jail for your misdemeanor conviction. California courts grant probation for first-time offenders and juveniles. This type of sentence allows you to spend your sentence out of jail.
Unlike for felony probation, you will not need to check with a probation officer while on informal probation. Instead, you will need to report to the judge. Another way misdemeanor probation varies from felony probation is that the judge requires a probation report before placing you on formal probation.
Informal probation lasts for one to three years. The court will attach the following conditions to the sentence:
Payment of restitution and court fines
Avoid alcohol and drug use
Participate in group or individual counseling
Seek and retain meaningful employment
Avoid criminal conduct while on probation
Forms of Probation Violation
The consequences can devastate you and your family when a probation violation occurs. Some of the most common probation violations include the following:
Failure to cover the court fines. If the court imposes fines as part of your conviction, you must pay the fines as part of your probation. Failure to do this can result in probation violation allegations.
Failure to report to the court or the probation officer. You can be cited under PC if you do not report your progress to the court or probation officer .
Positive drug and alcohol tests. While on probation, you must submit to mandatory drug or alcohol tests. Failure to take the tests or testing positive for the substances is considered a probation violation.
R estraining order violation. The judge could impose a protective order when the court grants probation for domestic abuse convictions . Contacting the protected person is a violation that could result in severe consequences.
Committing another crime during probation. One of the ordinary conditions of probation is avoiding engaging in criminal act s . An arrest for committing an offense will result in criminal charges and charges for probation violations .
Probation Violation Hearing
A probation violation hearing is the legal proceeding initiated by a probation officer or district attorney for defendants who violate their terms of probation. The probation violation hearing is held for a felony or misdemeanor probation violation. Often, the court will schedule this hearing after the probation officer reports the breach or you. Additionally, this could happen after your arrest.
The judge issues a bench warrant against you when a probation violation is reported. Unlike an arrest warrant, the bench warrant is issued for probation violations and failure to obey other court orders. When the judge issues the bench warrant, police officers have the right to arrest you and take you to court so you can answer the allegations against you.
You must understand that a bench warrant has no expiry date, and it remains effective until you appear before the judge and the court determines whether or not you violated the terms of your sentence. If you face an arrest and are in custody for violating probation terms, you are not entitled to bail. Bail allows defendants to stay out of custody until the court determines the outcome of their case.
The only way through which you can secure a bail release while awaiting your probation violation hearing is:
Your probation violation is not serious
You have followed through with the most crucial probation terms
You are almost done with your probation sentence
At the probation violation hearing, the judge will listen to the prosecution and defense side before deciding on the appropriate punishment for your violations. Your choice of a criminal lawyer can impact the outcome of your violation hearing. A skilled lawyer can employ the following advocacy strategies to prevail in the hearing and ensure the dismissal of the allegations:
Gather necessary evidence on the alleged violation. Since you have the right to learn about your allegation, your attorney can investigate different facts of the situation and gather sufficient evidence to refute the claim . Often, the attorney can check a police report from your arrest or any allegations which indicate that you violated a protective order.
Present mitigating evidence. If you violate a probation condition and a dismissal of the charges is not a possible outcome in the case, you can gather evidence to convince the judge to reduce the punishment. Common evidence that can apply in this case could include beating your criminal charges.
Seek credit for time served. If the judge revokes your probation to reinstate jail or prison time, you are entitled to credit for time served. For example, if the judge imposes a one-year jail sentence and you serve six months before entering probation, you can only serve six more months.
Your Rights at the Probation Violation Hearing
It is crucial to understand your legal rights as you go through the violation hearing. Understanding your rights helps you avoid unnecessarily harsh consequences for minor violations. Your rights at this hearing include the following:
Right to be notified of a claimed violation. There is no set rule of what must happen after reporting a probation violation. If the violation is not severe, the probation officer can issue a warning and let you walk free. Learning of violation allegations allows you to plan a defense for these allegations.
Right to be heard by a neutral judge. In case of severe probation violations, the court schedules a hearing where the prosecution and defense case will present the arguments. During the hearing, you have the right to be heard by a neutral judge.
Right to legal representation. Although hearing s are less formal than criminal trials , you r right to legal representation remains. A competent criminal lawyer will investigate the factors of the alleged violation and convince the court that the breach did not occur or was not severe enough for probation revocation .
A r ight to present evidence and witnesses. At the beginning of your violation hearing. The prosecution will present evidence proving a violation of one or more of your probation terms. After the prosecution has presented its case, you have a right to bring up any evidence or witnesses who could refute the allegations.
How does the probation violation hearing differ from a criminal case hearing?
There are several ways through which your hearing for probation violation differs from a criminal trial, including the following:
Burden of Proof
In a criminal case, the prosecution must prove the elements of your crime beyond a reasonable doubt. This is the highest standard of proof and must be clear before securing a conviction. The burden of proof needed to establish that you violated your probation terms is lower. If the judge believed by a ‘preponderance of evidence’ that you engaged in the alleged violations, you would be guilty under PC 1203.3.
In addition to proving the elements, hearsay evidence is inadmissible in a criminal case. This is because when a witness presents a written settlement, your attorney will not have the opportunity to cross-examine the witness. However, in your hearing, statements made outside of court can be used to determine whether or not you violated your probation.
If you face criminal charges in California, your case is heard and determined by a jury. On the other hand, a probation violation hearing is presided over by a judge. The judge who listens to your case will determine whether the evidence presented is sufficient to prove that you violated your probation.
Defense for Probation Violation Charges
A probation sentence aims to keep you out of incarceration. However, if the courts find that you violated one of the conditions, you could face serious consequences. The consequences could include revocation of the probation and reinstatement of a prison or jail sentence. Therefore, you must be aggressive when fighting these allegations. With the guidance of an experienced defense lawyer, you can present the following defenses against the allegations:
You didn’t Violate the Terms.
After your probation violation, one of the most common defenses is disputing that you violated the alleged condition. For example, when you face probation violation allegations for allegedly committing another offense, you can focus on beating the criminal charges. If you are found not guilty of the alleged crime, the judge will not punish you for probation violation.
The Violation was Not Serious
The judge could attach various probation conditions to your sentence. Some of these conditions are related to your case, while others are general. During your probation violation hearing, you could argue that the alleged probation condition was unnecessary for your underlying criminal charge and, thus, does not warrant harsh consequences. Although this defense will not protect you from the impact of your violation, the judge could be lenient.
The Violation was Unintentional
Sometimes, you may need to be made aware that you were violating probation by acting in a particular manner. For example, when you face a conviction for domestic violence, the judge may issue a restraining order. In California, a restraining order prohibits you from contacting your alleged crime victims. If you are in the exact location as the protected person, you could be charged with probation violations. Explaining that you were unaware of their presence will prove to the court that your violation was accidental.
Consequences of Probation Violation
Under California PC 1203.3, the court can modify, revoke or change your probation terms when they find you guilty of probation violation. The judge will devise a sentencing scheme when your violation hearing ends. Although the court has the discretion in determining your sentence, they could consider the following factors:
The severity of your underlying conviction. During the sentencing for probation violation, the judge will consider the nature of your underlying criminal conviction. A probation violation might result in more severe consequences if you were charged with a serious offense .
Your criminal history. The court is not lenient on repeat offenders. If you have an extensive criminal history or a history of probation violation, the judge will impose severe punishment for your probation violation.
The seriousness of your violation. Probation violations vary from case to case. For example, when you are sentenced to felony probation, your conditions could range from regular check-ins to finding a job and avoiding criminal activity. The penalties for failing to check in with your probation officer will differ from those for committing another crime while on probation.
The amount of time you have left on probation. Probation violations committed towards the need of your probation sentence may attract less severe consequences than the ones you commit within the first months of serving a sentence .
If there is insufficient evidence proving that you violated your probation conditions, the court will order that you go home and continue your probation sentence. The court imposes the following punishment for your probation violation:
Probation Revocation for the Original Sentence.
Following a guilty verdict in your criminal case, the court will impose various sentences, which could include a jail or prison sentence and fines. Instead of spending time behind bars, the judge could sentence you to probation. If the judge finds that you violated your probation, the judge could order a probation revocation and require you to serve your original jail or prison sentence.
For example, the prison sentence for a standard felony conviction in California is sixteen months, two years, or three years. Depending on the circumstances of your case, you could be sentenced to two years in prison. After a probation revocation, you must return to prison and serve two years.
Probation Revocation for a Maximum Sentence
When the evidence presented by the prosecutor supports the probation violation claims, the judge can order the revocation of your probation and impose on you to serve the maximum sentence applicable for your crime. For example, a felony grand theft conviction carries a sentence ranging from sixteen months to three years.
If you face charges for the offense and the court sends you to felony probation instead of serving prison time, a probation revocation could prompt the judge to impose the three-year maximum prison time.
The Judge Could Extend your Probation Period
Probation varies between one to five years, depending on the type of probation and the seriousness of your criminal charges. If you violate one or more of your probation terms, the judge could extend your probation period. The longer you remain on probation, the more time you will be tied to the court system. Additionally, your likelihood of violating another probation term is higher.
Judges are more lenient when dealing with first-time probation violations. If your probation term is extended and you are caught up in another offense, you could face harsher consequences like revocation.
Reinstatement of Probation with Harsher Conditions
When your probation violation does not warrant a revocation, the court could allow you to continue serving a sentence and impose additional or stiffer probation conditions. Some of these conditions could include the following:
Mandatory counseling . In addition to your original probation terms, the court could order that you undergo anger, management , or substance abuse counseling after a probation violation.
Substance abuse treatment. The court will mandate substance abuse counseling if you face an arrest and criminal charges for drug possession while on probation .
Check-ins with a probation officer. When the court sentences you to misdemeanor probation, there is no requirement to check in with a probation officer. However, following a probation violation, the court could impose the requirement.
Find a Competent Criminal Defense Lawyer Near Me.
The judge can send you to probation for various crimes, including theft, domestic violence, or DUI. This type of sentence saves you from prison or jail time. You can be sentenced to informal or formal probation, depending on the nature of your charges. The judge will attach stiff conditions to your sentence. Therefore, a violation of these conditions can attract severe consequences.
If you have been accused of violating the terms of your probation, you must attend a violation hearing to fight the charges. If the court finds that you violated probation, you risk facing the consequences like revocation. After a probation revocation, you could spend time in jail or prison or deal with additional conditions.
At Los Angeles Criminal Attorney, we will review the details of your alleged violation and build a defense to ensure the best outcome in your case. We serve clients battling probation violation allegations in Los Angeles, CA. Call us at 424-333-0943 today.