UPDATED: February 20, 2013
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A probation violation occurs when an individual fails to comply with the conditions of probation. Probation is a penalty for criminal offenses that is used instead of jail time or when a prison sentence is suspended. Failure to abide by probation conditions while on probation can result in incarceration, however, it does not always result in jail time. A violation may also have other consequences such as a longer period of time on probation or the imposition of additional obligations and restrictions during the probation period. In some cases, a violation may even have no consequences at all, other than a warning to behave better in the future.
Each state has its own guidelines for when probation is an appropriate sentence after a crime has been committed and for what a person can and cannot do while on probation. The conditions of probation are also affected by the original crime. For instance, a person who is accused of drunk driving may be banned from drinking alcohol or being present in a business whose primary purpose is to sell alcoholic beverages during the probation period. On the other hand, a defendant accused of shoplifting may have different probation conditions unrelated to drug or alcohol consumption.
Typical probation conditions include the requirement that the party submit to warrantless searches and searches without probable cause, abide by all laws, and refrain from actions related to the original criminal offense. Parties placed on probation are usually required to refrain from contact with their victims. Probation also usually involves checking in regularly with a probation officer and bans the individual from leaving the jurisdiction without permission.
Failure to comply with conditions of probation can trigger action on the part of law enforcement and the court system. However, the law affords a person who is accused of a probation violation the right to due process. This means that someone who is accused of a probation violation isn't immediately sent to jail. Instead, a hearing is conducted and the person accused of the probation violation is given a chance to hear the evidence against him and be heard in his own defense.
What Happens When a Probation Violation Occurs?
When a probation violation occurs, a probation officer typically has the authority to decide how seriously to take the violation. For instance, the probation officer may just decide to issue a warning. On the other hand, the probation officer also has the discretion to take further action and usually will in the case of more serious violations. In these cases, a probation violation hearing is typically scheduled to determine the appropriate course of action.
Probation Violation Hearings
In the 1970s, the Supreme Court established in a series of court cases that a person who was accused of a probation violation had certain Constitutional rights. The Supreme Court gave anyone accused of parole violations the right to be heard in person, to cross-examine his accuser, to see the evidence against him, and to present his own evidence, and the court later decided that those on probation have these same rights.
Different states have their own specific rules for how probation violation hearings work and making sure those accused of probation violations get their due process. In all cases, though, before probation can be revoked or penalties can be imposed, some kind of hearing is required. The hearing is normally conducted in front of the judge who initially sentenced the offender to probation.
At the hearing, the person accused of the violation presents evidence. In some states, the accused is entitled to have legal representation at the hearing and representation is provided if he cannot afford it himself. In other states, however, free legal representation is not guaranteed and the right to a lawyer is determined on a case-by-case basis.
The Consequences of a Probation Violation
To find that a probation violation occurred, the violation must be proved by a preponderance of the evidence. This is a lesser standard than the standard required to prove guilt in a criminal trial.
The appropriate sentence for a probation violation is determined based on a number of factors including the nature and severity of the violation, the severity of the original offense, the offender's behavior other than the violation, and the offender's criminal record or lack thereof. Probation violations usually result in the probation being revoked, after which an appropriate sentence for the original crime is imposed. If the probation was issued with a suspended sentence, then the sentence was already determined prior to giving the party probation, and the suspended sentence is then carried out.
A person accused of a probation violation may raise a number of defenses. For instance, he may question whether a violation truly exists, either by disproving the evidence presented against him or by providing an alternate explanation of what really happened. If the accused violator is successful in introducing doubt as to whether the violation occurred, there will be no consequences and he will continue on his probation.
A person accused of a violation who is not able to disprove that it occurred may also provide justifications for the violation. For example, if the individual left the jurisdiction without permission, he may prove it was necessary for him to do so because there was an emergency in another state and he could not reach his parole officer. In some cases, justification will be enough to result in the offender being absolved of all responsibility for the violation. In other cases, it will simply convince the parole board that the penalty for the probation violation shouldn't be as severe; for instance, probation may be extended instead of revoked.
Determining what arguments to make in a probation revocation hearing can make the difference between a determination of innocence and a revocation of probation leading to jail time. As such, it is important to consult with qualified legal counsel on the best way to proceed in the event that a person is accused of a probation violation.