What is probation?
In California, you may be granted probation as part of your sentence for a conviction of most misdemeanors and felonies. Probation, defined in Penal Code § 1203, occurs when the judge declines not to impose the maximum time in custody as the sentence, but instead allows the defendant to be released into the community under the supervision of the probation department.
For example, let’s say you plead guilty to a DUI where the worst punishment you could possibly receive under the law is 6 months in jail. When the judge grants you probation, he is essentially shaking your hand and making a deal with where he promises not to send you to jail for 6 months as long as you promise to comply with the terms of probation. If probation lasts for 5 years, then the full sentence of 6 months of jail is hanging over your head for 5 years. As long as you keep your nose clean, you won’t go to jail. If you screw up, the judge could send you to jail for any amount of time up to 6 months.
There are two types of probation: formal probation and informal probation (also known as summary probation or probation to the court). Formal probation is reserved for felonies. Formal probation often involves direct supervision by a probation officer who will be assigned to you. It involves several restrictions. For example, you are often not allowed to leave the county without the probation officer’s permission, you are required to give a DNA sample, etc. Formal probation can last for 3 or 5 years.
Summary probation is usually reserved for misdemeanors, but a felony conviction may also result in summary probation. Summary probation, as discussed above in the example of the DUI, is like a handshake with the judge. You are not assigned a probation officer. You can typically leave the state or even the country at will.
Can I choose not to go on probation?
You have a right not to accept probation. However, the alternative to probation may be suffering the full maximum sentence allowed by law. For example, let’s say you plead guilty to battery as a misdemeanor where the maximum possible sentence is one year in the county jail. The judge could offer you 3 years of probation, during which time you may have to take an anger management class, pay fines, have a restraining order against you, etc. If you tell the judge you don’t want to be placed on probation, the judge will assume you don’t want to (or can’t) complete the terms of probation. The judge may conclude that you need the maximum punishment and sentence you to one year in custody in lieu of probation. For this reason, most people choose probation over custody.
In what ways can probation be violated?
Probation violations occur for any number of reasons. Any time you fail to do something you have been ordered to do by the court or probation department while on probation, you may be accused of a probation violation. The following terms are common in probation sentences:
- Appear in court at a specific time and date in the future
- Attend alcohol counseling classes
- Attend drug counseling classes
- Attend anger management classes
- Attend a Mothers Against Drunk Driving (MADD) Panel
- Attend Alcoholics Anonymous (AA) meetings
- Attend a shoplifter’s course
- Show proof of completing a certain number of hours of community volunteer service with a non-profit agency
- Perform a certain number of days of Public Work Service with the county probation department
- Pay fines
- Stay away from a specific person or location (known as a Protective Order or Stay Away Order).
- Report to your probation officer
Failure to do any of the above things could constitute a probation violation. Committing a new crime, or even merely being arrested for a new crime without being charged, is a probation violation.
What happens in court if I violate probation?
You could be accused of violating probation without even knowing it. Usually a warrant will be issued for your arrest, but you may not know about the warrant. If you discover that a warrant has been issued for your arrest due to a probation violation, usually the best thing to do is to get into court as soon as possible to talk to the judge. Of course, you are best off making sure you are represented by experienced legal counsel when you go into court. If you are on probation for a misdemeanor, you may be able to avoid going to court personally. Instead, your lawyer can talk to the judge for you. However, the sooner you (or your lawyer) get in front of the judge, the better your results may be.
When you are accused of violating probation, your first court appearance in court will be a Probation Violation Arraignment. This is your opportunity to find out from the prosecutors or the judge what they are alleging you did (or failed to do) that was in violation of the terms of your probation. You then have the opportunity to admit or deny that you violated probation. If you admit the probation, you will either be told the consequences of your probation violation right there or you may set a new court date, at which time your punishment would be decided.
In many courts, your lawyer will have the opportunity to speak with the judge and/or prosecutor at the time of the arraignment in order to negotiate. If the evidence clearly shows that you violated probation, your lawyer will work to convince the judge and prosecutor to reinstate you on probation on the same terms and conditions, without imposing any further or enhanced probation terms. Read about the steps you can take to help us win your case.
If you decide to fight the accusation that you violated probation, you have a right to make the prosecution prove that you violated by bringing in witnesses to testify on the stand. You and your lawyer will then have the opportunity to cross examine the prosecution’s witnesses. You can present your own evidence and have your own witnesses testify as well. The prosecution need not prove that you are guilty of a probation violation “beyond reasonable doubt.” They only need to prove that it is more likely than not that you violated probation.
If you admit the probation violation or are found to have violated after a hearing, your probation will be revoked and you will be sentenced. If you have the hearing and are found to have not violated probation, you will continue to be on probation as you were before.
What will my sentence be if the judge finds I violated probation?
When you were placed on probation originally, there was a certain amount of jail or prison time that was hanging over your head during the length of probation. Upon sentencing you after a probation violation, the judge could sentence you to serve the full amount of custody that you faced on the original crime, but not one day more. If you were on probation for a felony, it is not uncommon to be sentenced to custody for a few months due to a probation violation. Of course, it depends on the type of crime and violation. If you were on probation for a misdemeanor, it is not uncommon to have custody imposed for a short time or to have no custody imposed at all due to a probation violation. Again, it depends greatly on the type of crime and violation. Because there is a wide range of possibilities, you would be wise to ensure you are represented by a lawyer who knows what he’s doing and can persuade the judge to see things your way.
What defenses can I use in a probation violation case?
There are a variety of defenses that apply to a probation violation case. The defense strategy used will depend on the type of crime for which you were on probation and the type of probation you are accused of committing. However, there are also some general rules about probation violations that apply in every case because they are based on the constitutions of California and the United States of America. Probation terms may not be vague, confusing, ambiguous, impossible to be complied with or overly harsh. Probation terms also must be related to the facts surrounding the crime. The legal term used in court is “nexus.” For example, the court should not prohibit you from drinking alcohol as a term of probation if there is no evidence that alcohol was involved in your commission of the crime.
What if my probation violation involves a new crime?
If you violated probation by committing a new crime, you must fight two battles: the violation of probation and the new crime. Realize that, if found guilty, you are facing two separate sentences. Therefore, you must have a lawyer who understands the criminal justice system and can maximize your chances at winning on both cases. To learn how to properly defend your case, read our ebook “Fighting Your Criminal Case: A Serious Response to Serious Charges“.
If you have been charged with a probation violation in El Cajon or anywhere in San Diego County, you need the best representation available. You need a lawyer with the strength and knowledge to properly defend you. To speak with San Diego East County probation violation attorney Tate R. Lounsbery today, call 619-792-1451 or send us an email.