California law sets two types of probation, including formal and summary probation. Regardless of the form of probation, you are expected to adhere to the set regulations. Failure to adhere to any of the rules means that you have dishonored your probation. This means that you must appear for a violation hearing, where the court might choose to cancel your probation and give you prison time. However, the judge might decide to re-establish the probation using similar terms or different ones.
Probation is based on the California Penal Code 1203 PC, which imposes a supervisory sentence instead of jail time or in addition to the incarceration. Just like when charged with a crime, it is vital to have an experienced and qualified attorney on your side if you are accused of violating your probation terms. At Orange County Criminal Defense Attorney Law Firm, we are knowledgeable about the California legal framework, and we can help you develop a proper legal defense to reduce the possible penalties or get the case dismissed entirely.
California Penal Code 1203 PC
This code section is the framework on which probation violation laws are based. It stipulates that the court has the power at any point during your probation term to cancel or change the sentence's implementation. In California, the probation period ranges from a few months to multiple years. In many situations, when the offender completes the probation period and meets all the terms and conditions, the court might opt to dismiss the case.
Conversely, if you breach the regulations, you will likely experience severe consequences that might include even a jail term. The following are some of the common habits that can amount to a probation violation in Orange County, California:
- Failing a drug test
- Getting fired for misconduct
- Drug-related crimes
- Failure to attend court hearings
- Failure to engage
- Executing illegal activities
- Failure to pay fines
- Inability to finish community service as directed by the court
- Fleeing the state without the authority
- Engaging in any crime
Forms of Probation
There are two types of probation. These are as follows:
The court gives this type of probation to people who have experienced a misdemeanor conviction. The maximum term for such probation is five years. Note that this is considered informal probation because one does not need to check with the probation officer or compose a report regularly. However, you are expected to appear before the court for hearings about your progress.
If you commit a felony crime, you will likely be subjected to formal probation, which ranges from three to five years. The difference between informal and formal probation is that the latter needs a probation report before the court grants you any probation. The county’s probation department prepares such reports. The probation officer assesses the crime as well as your entire criminal history to decide whether you are suitable for a probation sentence.
If the court decides to grant you a probation sentence, you are expected to report to your probation officer once or twice every month. Failure to do so makes you subject to a probation violation. Formal probation aims to monitor you consistently to ensure that you do not leave the state and adhere to all the stipulated terms. Formal probation also makes it your responsibility to report any changes to your physical address.
Penalties of Probation Violation
The probation terms in California are strict, and violation of any set terms might have severe consequences, including an extended probation or prison time. Failure to adhere to any set rules can lead to a probation violation, and the judge has the mandate to decide the type of punishment to impose. The associated punishment varies depending on the factors of the case. Some of these include the severity of the violation, previous criminal history, as well as prior probation violations. The probation department can also provide its recommendations regarding your conduct and whether they support a probation sentence. Depending on the uniqueness of the case, a probation violation could attract the following penalties:
Drug Treatment Programs
In case your probation terms required you to abstain from drug use and you were arrested in possession of controlled substances, the judge might direct you to engage in a drug rehabilitation program as an additional term to your probation.
Attend Counseling Programs
After considering all the factors associated with your probation violation case, the court might issue a verdict for you to attend counseling programs depending on the nature of the crime committed. For example, the judge might order you to attend substance abuse and anger management programs.
Maximum Sentence as Stipulated by the Constitution
If there is concrete evidence that violated any of the probation terms, the judge might decide to do away with the probation entirely and impose the harshest punishment under the law. For example, the court can give you a probation sentence for a crime that bears a possible penalty of two years. Upon the violation of the set terms, the judge has the mandate to sentence you to up to two years in prison.
Restoration of the Original Sentence
In your first case, the judge might have halted your original sentence and replaced the possible prison time with probation. The court has the legal mandate to revoke such probation and restore the initial ruling. For instance, you can be found guilty of a drug crime; the court sentences you to two years imprisonment, but the judge suspends the judgment and gives you probation. However, if you are found guilty of a probation violation, the court might eradicate the probation and re-enact the former halted two-year jail term.
Mandatory Community Service
After evaluating the conditions and severity of your probation violation, the court might order you to engage in community service for a public or charitable organization. This is among the possible favorable outcomes in probation violation hearings.
The judge plays a significant role in determining the appropriate punishment for the case. The judge evaluates the rules of your probation and considers any violations that you previously committed. He or she then decides to increase the time of your probation or revoke the probation and sentence you to serve a jail term.
If you are a first-time probation violation offender, the judge is likely to re-impose the probation with similar or different terms and conditions. Note that the judge has the mandate to alter the probation's stipulations, such as increasing probation time. In other circumstances, the court might decide to make a temporary probation revocation and order a 30-day prison time before re-enacting the probation. In severe probation violations, the court might choose to eradicate the probation and sentence you to serve the rest of your time in prison.
What Help Will I get from a Probation Violation Defense Attorney?
Facing probation violation charges can be detrimental, and hiring an experienced criminal defense attorney attempts to reduce the possible penalties or get the case dismissed entirely. In some instances, the attorney might not get the charges dropped because the prosecutor’s evidence is concrete, and the conviction cannot be avoided. In such a situation, a good criminal defense attorney will fight to prevent you from serving a jail term. This is done by negotiating with the prosecutor to get a plea bargain that incorporates probation.
In California, being granted probation sentence is among the best suitable outcomes because you can continue performing some of your critical daily activities such as working and taking care of your family. However, a consecutive probation violation can have severe consequences not only to you but also to your family.
Probation Infringement Hearings
A hearing for infringing probation is triggered when one of the set terms is breached. Such violations prompt the law enforcement authorities to present you in court for the hearing. More so, the judge might provide an arrest warrant once the court learns about the violation of your probation. During your probation violation hearing, you still have certain constitutional rights. These are as follows:
- Right to access the evidence that the prosecutor will implement against you.
- Right to demonstrate any mitigation elements that might have caused the probation violation.
- Right to have an attorney.
- Right to bring witnesses to give their testimony before the court.
- Right to be your own witness.
Unlike other criminal cases, probation infringement hearings are only presided over by a judge and not a jury. The prosecutor in this kind of hearing, does not need to prove beyond a reasonable doubt that you violated the probation terms. Instead, the prosecution needs the predominance of the evidence to prove the case. Note that out of court statements can be used as evidence in a probation hearing as long as they are reliable. However, before such accounts are used as evidence against you, the court will assess and balance your constitutional right to question the witnesses and the cause of the prosecution’s failure to present such witnesses before the court.
The hearing concludes by the verdict of the judge regarding whether you violated the terms of your probation. In case, the judge rules that you are in violation, he or she assesses your criminal record before issuing a penalty. He or she will also consider other factors, including the severity of the breach, causes of the crime, as well as general behavior during the probation.
The judge considers the opinion of the probation officer, who can recommend for or against you, depending on your performance. Finally, the court makes a verdict after evaluating all these factors. The outcome of the hearing might be a revocation and re-establishment of the probation. On the other hand, the court might decide to end the probation period and enact a jail term or restore the probation using different guidelines.
Your defense attorney will demonstrate facts or evidence that you did not violate the terms or did not do it deliberately at the hearing of your probation violation case. Your criminal defense lawyer can also choose to provide the mitigating evidence to reduce any possible penalties in case a probation violation occurred. In case the judge imposes a jail sentence, your defense attorney will inquire for the time that you previously served. This is an essential move because it reduces the actual time you will spend in custody.
Note that you can go through your probation infringement hearing without being granted any punishment. For this to happen, the court needs to believe that you did not violate your probation terms. If this occurs, you will continue with your probation without any changes to the time and requirements. This is also significant because it retains your chances of getting the conviction expunged from your criminal record.
The California law allows the expungement of some crimes from your record. The notion means that the conviction does not appear on your record, and you can testify that you were never convicted for such a crime. Unfortunately, the California law does not provide an opportunity for expungement for probation violation offenders. However, there are circumstances in which you can be eligible for the expungement. To succeed in this process, you need a qualified defense attorney who will represent you in court.
Note that probation on your criminal record can potentially affect various aspects of your life. California law forbids entities from inquiring about arrests that did not result in a conviction. However, if you are on probation, it means that you have been convicted, and potential employers can legally request you to clarify the conviction that led to the probation. A probation violation might reduce your chances of securing a job, especially when there is concrete evidence that you violated the terms and conditions of the probation.
Consequences of a Probation Violation Criminal Record
Violation of probation terms may seem like a small matter. However, the consequences are grave. They include the following:
Denial of Custody
If you have a probation violation conviction, a judge might consider you unfavorably in custody cases. This might convince him or her to deny you custody of your children. This occurs mostly if your case entailed domestic violence.
Reduced Chances of Securing an Employment Opportunity
Having a probation violation criminal record might negatively affect your success in securing a job. Many potential employers conduct background checks before they consider you for a particular vacancy. It is also a challenge to acquire security permission to secure a government job.
Denial of Financial College Aid
A probation violation conviction in your criminal record can make you ineligible for financial assistance to cater for your college or university education. A probation violation criminal record can derail your graduation if you are a student at the time of conviction..
Securing a Rental Apartment
Many landlords perform background checks before they allow you to rent their apartments. A prior probation violation conviction might restrict your chances of getting a rental apartment as many landlords will conduct such background checks.
People in California with a visa or green card might jeopardize their immigration status if convicted with a probation violation offense.
For first-time probation violation offenders, the prosecutor might decide to issue a warning to the probationer if the infringement was not that serious. This occurs especially if the prosecutor wants to save the judge from the excessive workload.
Preponderance of Evidence
This is a type of burden of proof in which a judge is required to prove that a person has violated at least one condition of the probation sentence. If the court affirms that you are more likely to engage in a probation violation, you will be charged with a probation violation. When you are accused of breaching any terms of your probation, you are subjected to probation violation hearing where the prosecution must prove that you violated at least one stipulation of the probation sentence.
Use of Hearsay Evidence
The California law stipulates that probation defiance hearings can incorporate hearsay evidence. The latter entails testimonials made outside the court, which provide more information regarding the probation infringement allegation. Note that the hearsay evidence is admissible so long as it is reliable.
For instance, if you are convicted of a crime, the court might direct you to attend counseling sessions. In case you miss various sessions, the counselor might contact your home, and your roommate might answer the call if you are not available and affirm you went camping. While such a statement will be disallowed in a criminal case, it is admissible in a probation violation hearing because it demonstrates that you deliberately decided to abscond the counseling session. Such a situation amounts to a probation violation.
Types of Probation Violations
There are two types of probation violations, including technical violation or commission of a new crime that is not associated with your probation. The latter occurs because the court might prevent you from committing any offense during the probation time as part of the terms and conditions. In California, your probation can be restored after a technical violation though there is no assurance. A typical example of a technical violation is the inability to pay the restitution within the allotted time or failure to complete the community service within the stipulated period. A new offense might attract the revocation of the probation and the imposition of a jail term.
Special and Standard Conditions of a Probation
Under the California law, the court will explain both the standard and unique terms and conditions that you are expected to adhere to. Some of the conventional standard conditions include:
- Refraining from drug or alcohol use
- Settling of restitution or fines
- Retain school or employment
- Regular visitations to the probation officer
- Non-commission of new offenses
On the other hand, some of the common special conditions are as follows:
- Completion of a drug treatment program
- Attending anger management sessions
- Adhering to a no-contact directive
- Completion of community service within the set hours
A probation violation charge against you is filed up to the point the court terminates the probation. For instance, you can be violated if you commit a new crime two days before the completion of the probation regardless of adhering to all the special conditions. Such an incident means that the court will halt the probation clock, and the sentence maintains a state of suspension until a verdict is made regarding the new offense. However, if such an arrest occurs three days after the completion or termination of the probation, the court will not attempt to revive your probation sentence to file a probation infringement.
Probation Violation in California
Various factors can contribute to the infringement of felony probation in California. Committing a new offense is a common cause of this type of violation, which attracts an immediate violation hearing. You can also breach felony probation if you test positive in a drug test during that period or failure to alert your probation officer when you relocate to a different address. If your probation officer has evidence that you infringed your probation, he or she will request the judge to provide a felony permit for your arrest. An arrest warrant stipulates that you can be arrested at any place and time.
Find a Criminal Defense Attorney Near Me
If you or your loved one has been arrested for a probation violation offense in California, you need a skilled and experienced attorney who will assist you in your case. A probation violation crime can be devastating, mainly because they can lead to jail time. At Orange County Criminal Defense Attorney Law Firm, we are dedicated in offering the best legal advice concerning your probation violation case and even represent you in court. Depending on the facts of your case, we will develop a proper defense strategy that will convince the court to dismiss the case or give lesser penalties. We can also negotiate or ‘plea bargain’ with the prosecution to file lesser charges before your case goes to court. Contact us today at 714-740-7848.