Violating Probation

After a person pleads guilty to or is found guilty of a crime, a judge gives that person an appropriate sentence. Probation is the most common sentence in America.

This article answers common questions about probation conditions and the consequences for violating the conditions of your probation. However, the answers to many questions about probation (and other areas of criminal law) depend on knowing the facts of your case. Contact a criminal defense lawyer in your area to get legal advice tailored to your unique situation.

What Is Probation?

Probation is a sentence served outside of jail. The person on probation (the “probationer”) must do (or not do) certain things during the entire probation period. However, they do these things while living in the community. For this reason, probation is sometimes called “community supervision.”

Probation can be served after a jail sentence, or it can be a sentence on its own. The remainder of this article assumes that the sentence includes no jail time.

Who Gets Probation?

Generally, judges have broad discretion to craft sentences in criminal cases. In most jurisdictions, judges get a pre-sentencing report that includes information about the defendant’s:

• Education and employment history
• Criminal history
• Likelihood of committing a new offense or posing a threat to public safety while on probation

Judges are generally more likely to order probation for people who are first-time offenders, have committed minor crimes, and have a low risk of reoffending.

Probation Conditions

Probationers must comply with certain conditions. Some of these are standard conditions that apply to all probationers. Others are special conditions that apply only to a specific person or criminal offense.

Standard Conditions

The most common condition of probation is meeting with a probation officer regularly. During the meeting, the probation officer ensures that the probationer complies with the court’s requirements.

In addition to reporting to a probation officer, other standard conditions require probationers to:

• Not commit any new crimes
• Pay any required restitution, fines, community supervision fees, or court costs
• Perform community service
• Avoid people or places associated with the crime
• Refrain from using illegal drugs or misusing alcohol
• Submit to regular alcohol and drug testing
• Complete alcohol or substance abuse programming

Special Conditions

Courts sometimes create conditions tailored to a particular offense or offender. For example, someone convicted of domestic violence might be required to attend anger management classes. A person convicted of driving under the influence (DUI) might have to install an ignition interlock device on their car.

Types of Probation Violations

Most common probation violations fall into two categories: substantive violations and technical violations. Different states define these terms differently, but there are common threads.

Technical Violations

Technical violations are failures to comply with the conditions of probation that do not constitute a crime. For example, missing a meeting with your probation officer constitutes a violation of your probation, but because missing an appointment is not a crime, it’s considered a technical violation. Other technical violations include failing an alcohol or drug test or not completing court-ordered classes.

Substantive Violations

Substantive violations involve more serious behavior than technical violations. Committing a new crime, especially a felony, while on probation is a serious substantive violation. Other substantive violations include:

• Leaving the state without permission
• Missing multiple meetings with the probation officer
• Ignoring certain special conditions of probation (e.g., harassing the victim in violation of the judge’s “no-contact” order)

Consequences for Probation Violations

After a violation, a probation officer can handle the situation themselves or refer the issue to a judge. For minor technical violations, the probation officer might give you a simple warning or reprimand. If they refer the matter to the court, the judge will hold a probation violation hearing or probation revocation hearing.

At the hearing, the probation officer and prosecutor can present evidence. They will have to prove the probation violation by a “preponderance of the evidence,” which means that it is more likely than not that the violation occurred. This is a lower bar than the “beyond a reasonable doubt” standard that applies when a jury decides guilt in a criminal trial, so a violation of probation is pretty easy to prove.

If the judge finds that you violated the terms of your probation without a good reason, the judge can:

• Increase your reporting requirements
• Add a community service requirement (or increase existing community service hours)
• Extend your term of probation
• Order you to serve a short jail term (30, 45, or 90 days)
• Force you to report to jail on weekends for a specified period of time
• Revoke any credits you received for good behavior

Substantive violations, especially those involving new crimes, generally carry harsher punishments. If you are convicted of the new crime at trial, it is almost certain that your probation will be revoked. Even if you aren’t found guilty at trial, the prosecutor can still raise the issue at a revocation hearing. If the judge finds that it’s more likely than not that you committed the crime, they can revoke your probation.

If your probation is revoked, the judge can order you to serve the original sentence. For example, if your original sentence said, “The defendant is sentenced to 5 years imprisonment suspended for 12 months of probation,” the revocation judge can give you a five-year sentence. In nearly all jurisdictions, you will not get credit for the time spent on probation. However, if you are offered a guilty plea for the new criminal charges, your criminal defense lawyer can also help you negotiate a deal for the probation violation.

Get Legal Advice About Probation and Probation Violations

Probation allows you to continue living your life. But it is crucial to comply with every condition. A probation violation can lead to a more difficult probation sentence, a longer probation term, or time in jail. If you’ve been charged with a probation violation, a lawyer can help you fight back. Use the LawInfo directory to find a criminal defense attorney near you.