Can You Violate Probation and Not Go to Jail?

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According to the Bureau of Jail Statistics (BJS) of the United States Department of Justice, 1,398,289 individuals were under probation in 2020. From this figure, 40,138 individuals got incarcerated with a new sentence, while 67,894 returned to jail under their current verdict.

This statistic shows that thousands of probationers still end up in prison again despite the opportunity and efforts to stay out of jail.

What happens when you violate probation in the U.S.? What occurs when you attend a probation violation hearing? Is there a way to lessen your penalties when you violate probation?

This article explains what constitutes a parole violation and whether a felony or misdemeanor probation matters in your case. This article also explores the different probation types, the probation officer’s role, and what ensues when your probation gets revoked.

Do you have a loved one on probation who returned to jail for a violation? LookUpInmate.org can help you search for that individual and their prison records. This online inmate records checker provides a convenient method to search for inmates across the U.S.

What Can Happen if You Get Convicted of Violating Probation? What to Expect When You Violate Probation in the U.S.

Probation is a penalty, which is often part of the overall sentence, imposed by the courts for a criminal conviction in various U.S. states. A full sentence typically includes probation, community service, fines, and jail time.

A probationer who is unable to comply with the probation terms or conditions will be arrested. The court may issue an arrest warrant, or a probation officer can arrest you on the spot and without a warrant if you do not comply with the probation conditions.

At a violation of probation (VOP) hearing, such as in the state of California, a prosecutor and your criminal defense attorney will present evidence and testimony regarding your alleged violation of probation.

At this hearing, a prosecutor must persuade the court with a preponderance of the evidence (the weight, value, and credit of evidence from both sides) that you are guilty of a VOP.

The offender has no right to a trial by a jury of peers at a VOP hearing. Instead, a judge will decide the outcome.

What Are the Consequences of Violating Probation for the First Time? What Happens When You Violate Probation for the First Time in the U.S.?

Depending on the state, the following consequences can happen to an individual who violates probation for the first time:

  • Your probation officer can issue a warning based on the severity of your violation.
  • Your probation officer can decide that you must go to court. If so, you can be sent to jail and lose your probation. Additionally, failure to attend your court date can result in your arrest.
  • During a court hearing, you may present an argument on why you violated the terms of your probation.
  • The court can decide to increase your probation time, require you to render additional community service, or have you register for a rehabilitative treatment program.

What Controls the Consequences for Violating Probation?

The consequences you can face for violating probation will depend on the severity of your probation violation or how far you were in your term when you committed the violation.

For instance, a violation committed early in your probation can have a different consequence than one committed when your probation nears the end.

The court can also ask your probation officer for recommendations when deciding on a penalty for your violation.

Can Your Record Be Expunged if You Violate Probation?

Expungement is the dismissal of a conviction from your record, allowing you to testify under oath that you are not convicted of the expunged crime.

However, if you violate your probation, you can lose eligibility to obtain an expungement for the underlying criminal offense at the end of your probation.

How Are You Sentenced for a Probation Violation in the U.S.?

In certain states, the judge decides on your sentence after you attend a probation revocation hearing. In such situations, the burden of proof for the prosecutor is lower than in a criminal trial.

The burden of proof is the standard that a party who is attempting to prove a fact must satisfy to establish that fact legally.

Rather than proving your guilt beyond a reasonable doubt, the prosecutor only needs to prove you have a higher likelihood of being guilty of the violation than innocent.

Fortunately, you have the right to offer a defense during the hearing. You can also provide evidence to the court and call in witnesses.

In California, courts allow you to present hearsay evidence during your defense. Having an attorney or assistance from a law firm can help you secure a favorable outcome for your case.

Do You Go to Jail Automatically for Violating Probation?

Not all probation violations result in automatic prison time. Probation officers can issue a probation violation warning or bring the matter to a court hearing. During a hearing, a judge may do any of the following:

  • Revoke the defendant’s probation
  • Dismiss the new probation violation charges
  • Add extra stipulations and time to a defendant’s current probation
  • Add an additional sentence time to the defendant’s jail or prison sentence

Defendants may prefer probation as an alternative to jail time. When jails and prisons get overcrowded, states can willingly grant probation.

However, probation requires more than keeping out of trouble for a specific period of time. Furthermore, a violation of probation is a serious charge that carries severe penalties.

When Are Probation Violations Least Likely to Result in Jail Time?

If you committed a probation violation, you are least likely to receive a jail sentence if:

  • The violation was technical or minor
  • You did not violate a term of your probation before
  • The underlying offense was minor, such as a misdemeanor instead of a felony
  • Aside from the violation, you are on track to complete the conditions of your probation or supervised release

Even with all these factors present, the judge still has discretion on whether or not to revoke probation and sentence you to jail.

Common Probation Terms and Violations: What Are the Typical Terms and Conditions of Probation?

Probation terms and conditions can vary by state. However, these terms usually include, but are not limited to, the following:

  • Refraining from committing criminal activity
  • Reporting to a probation officer frequently or checking in at court for progress reports
  • Performing community service
  • Taking and passing required drug tests
  • Getting prior approval when leaving a specific region
  • Avoiding alcohol or drugs
  • Staying away from known criminals
  • Using an ignition interlock device for the individual’s vehicle if their criminal charges involved driving under the influence (DUI)
  • Paying restitution to the victim or victims

Meanwhile, probation violations can include the following:

  • Inability to attend a school or find work due to an arrest record
  • Eviction
  • Employment loss due to layoffs
  • Befriending an individual with a criminal record unknowingly
  • Being unaware of family members or friends possessing weapons in your presence
  • Intake of certain medications or foods causing a false positive on a drug test

Adding Additional Terms to Your Probation

The judge can increase your community service hours, impose stricter curfews, implement house arrest, or hand down other conditions that let you continue probation on stricter terms.

Probation Violation Hearing: What Happens at a Probation Violation Hearing?

After a hearing, should the court determine that the probationer has violated their probation, the judge will consider the following factors when deciding the sentence:

  • The nature of the violation
  • The probationer’s compliance before the violation
  • The probationer’s criminal record
  • The recommendations the county probation department offers

What Are the Possible Outcomes During a Hearing? What Can a Judge Do at a Probation Violation Hearing?

Based on the details of the probation violation, a judge may hand out any of the following decisions:

  • Continue your probation with the same terms and conditions
  • Add extra restrictions to your probation
  • Revoke your probation and order you to jail

If the judge revokes your probation, your prison term will be from the same sentencing range suspended before your probation. 

Furthermore, the judge can impose the allowable maximum sentence.

What Are Your Rights at a Probation Violation Hearing?

In certain states, defendants at a probation violation hearing have some of the same rights that criminal trial defendants have. These rights include:

  • Representation by an attorney
  • Opportunity to call witnesses or utilize the court’s subpoena power to oblige witnesses to testify on your behalf
  • Opportunity to present mitigating circumstances
  • Disclosure of evidence the state has against you

What Are the Legal Defenses?

A probation violation can lead to severe consequences, such as losing your freedom due to imprisonment, revoking your probation, or paying hefty fines.

A strong defense can help you achieve the goal of getting all probation violation charges against you dismissed or at least minimizing your penalties.

After the judge hears the prosecutor’s evidence that the offender violated the probation terms, the defendant’s criminal defense lawyer can present evidence telling the probationer’s story.

Defenses or arguments against a claim of a probation violation typically include:

  • The probationer did not violate their probation terms
  • The violation was trivial enough to be considered technical or minor and not warrant a probation revocation

Is the Penalty Decided at the Probation Violation Hearing?

The court typically decides the penalties for an alleged probation violation at the probation violation hearing. This hearing can also be called a probation revocation hearing.

How Do Probation Hearings Differ From Criminal Trials?

In probation violation hearings, judges decide the sentence. Such hearings do not involve a trial by a jury of your peers.

In a criminal trial, the state must prove that the defendant is guilty beyond a reasonable doubt. In contrast, a probation hearing only requires a preponderance of the evidence to determine the offender’s guilt.

How Common Are Probation Violations?

Probation violations are common occurrences in some states. In California, for example, thousands of violators have their probations restricted or revoked yearly due to probation violations. 

The most common violations in that state include:

  • Failure to appear at a scheduled court date
  • Failure to report to a probation officer
  • Failure to pay fines or restitution when the probationer can pay
  • An arrest on a new criminal charge
  • Refusal or failure to submit to a probation search or drug test

Filing a Probation Violation Instead of a New Case

Prosecutors may prefer to file a probation violation instead of a new case because the burden of proof in a probation violation case is lower. 

In a probation violation, the prosecutor only needs to prove that the offender is more likely to violate their probation than not.

Should the court decide that there is a violation, the judge can impose additional terms on the offender’s probation, including jail time.

If You Violate a Condition of Your Probation: Is There a Way to Reduce the Penalties for a Probation Violation?

For you to come out of a probation revocation hearing without additional penalties, the judge must determine that you are not in violation of your probation.

If the judge determines that you did not violate probation, you can proceed with your probation without any modifications.

Ask your lawyer for legal advice for more information on how to lessen the penalties.

With over 7,000 correctional facilities in the U.S., searching for a loved one incarcerated for a probation violation can take much effort and time. LookUpInmate.org is an online records checker that lets you search for jail records, judicial reports, and mugshots of inmates, all in one convenient online inmate search tool.

What Constitutes a Probation Violation?

The following are ways a probationer can violate their probation:

Violation of the Original Designation Period Ordered by the Court

A probationer commits a violation when they do any of the following offenses during the original probation period:

  • Failure to pay fines
  • Failure to participate in any community service
  • Failure to complete required programs
  • Failure to attend and complete required classes
  • Failure to undergo any drug testing
  • Violation of a protective order

Failure to Appear at Scheduled Court Date

Should a probationer fail to appear for a court hearing, the court will issue a bench warrant for the offender’s arrest.

In case the probationer missed the previously scheduled court date, they must contact their attorney immediately. An attorney can help get the matter back on schedule.

Failure to Notify Probation Officer

A probationer who fails to report to their probation officer must attend a violation or desertion hearing. Depending on the specifics of the offender’s case, the hearing can result in any of the following:

  • Verbal admonishment
  • Suitable custody time before getting reinstated on supervision
  • Revocation of supervision and imposition of sentence
  • A warrant for your arrest

What Are Technical Violations?

Technical violations of probation are relatively minor infringements of the terms of supervised release.

A judge typically sets the terms and conditions of supervised release when sentencing a defendant to probation instead of prison.

These terms and conditions depend on several factors, such as the underlying crime and the defendant’s criminal history.

Arriving 10 minutes late at a meeting with a probation officer or required court appearance can qualify as a technical violation. However, certain crimes are more severe and can result in a substantive violation, which warrants a probation violation hearing.

What Is a Probation Officer’s Role?

A felony probation officer’s duties include conducting drug testing and confirming the probationer’s employment.

The officer can also enter the probationer’s home to confirm that the individual in question does not possess any illegal weapons or drugs.

Regular meetings with the probation officer can help confirm whether the probationer is present within or did not leave the state. Such meetings also help determine if the probationer complies with the felony probation conditions and terms.

How Is Hearsay Evidence Handled?

Hearsay is a piece of information you receive from other individuals that you cannot sufficiently verify or confirm if true.

Courts can admit hearsay statements as evidence in a probation violation hearing if the judge considers such statements plausible evidence.

In criminal trials, hearsay is usually not allowed as evidence because the individuals making such statements are not present for cross-examination.

What Happens When Your Probation Gets Revoked?

A probation revocation occurs when the defendant violates a condition or term of their probationary sentence.

When the court revokes the probation, the probationer may need to serve the remainder of their sentence in jail rather than under community supervision.

Important Documents to Bring to a Probation Orientation

An individual must bring the following documents to their probation orientation:

  • Valid identification
  • Verification of residence
  • A copy of all documents the sentencing court provided

Types of Probation

The following are the different probation types based on the offense an individual committed:

Summary or Informal Probation

Summary probation is also called informal or misdemeanor probation. This form of sentencing has generally relaxed conditions and relies on the probationer’s self-supervision, especially since the offender is not required to meet their probation officer regularly.

Common conditions under summary probation include the following:

  • Performing community service
  • Obtaining and maintaining employment
  • Paying fines or restitution to the victims
  • Attending counseling sessions
  • Following a restraining order

How Does Misdemeanor Probation Work?

When the court orders probation for a misdemeanor conviction, this probation allows a convicted offender to stay out of custody entirely or reduce the length of their time in custody.

An individual on misdemeanor probation typically does not report to a probation officer. Instead, the probationer appears in court for occasional progress reports.

During these court appearances, the judge determines whether the individual complies with the probation’s terms and conditions. If not, the judge can schedule a probation violation hearing.

The terms and conditions for misdemeanor probation vary by state. Ask your lawyer for more detailed information on misdemeanor probations in your area.

How Serious Is a Violation of Informal Probation in the U.S.?

Individuals under informal probation have more freedom than those under formal or felony probation. However, probationers violating the rules can face severe penalties.

The duration of misdemeanor probation can range from one to five years, depending on the nature of the underlying crime, prior convictions, and prior violations.

For How Long Can Misdemeanor Probation Be Required?

The length of time an offender needs to serve misdemeanor probation depends on the state. For example, in California, misdemeanor probations can take one to three years or last for as long as five years.

Formal Probation

Individuals convicted of a felony and are fortunate to be placed on probation are assigned to a strict form of supervision called formal probation.

In certain states, judges must order a probation report before sentencing the felony offender to probation. 

The county’s probation department compiles this report and considers the defendant’s criminal record and the details of the alleged felony.

Felony Probation: How Does Felony Probation Work?

Felony probation can last for three to five years. Those facing such probation must regularly report to a probation officer.

Probationers are usually subjected to stricter conditions than the common terms under informal probation. Common conditions the court will assign for felony probation include the following:

  • Seeking and maintaining employment
  • Rendering community service
  • Attending counseling sessions
  • Paying fines or restitution to victims
  • Complying with a restraining order
  • Meeting with a probation officer regularly
  • Submitting to required drug testing
  • Completing a treatment program
  • Agreeing to submit to peace officer searches upon requested

What Happens When One Gets Sentenced to Felony Probation?

When the offender gets released from jail and placed on felony probation, they must report to the probation office or department for supervision.

The offender must accomplish this task within 48 hours or within the time frame specified by the court for orientation.

Does It Matter Whether the Sentence Is Misdemeanor or Felony Probation?

Courts hand down felony probations for felony offenses, while misdemeanor probations, also called summary probations, are for misdemeanor crimes.

Felony criminal cases are typically more severe than misdemeanors. Thus, felony probations have longer probation periods and stricter terms than summary probation sentences.

Judges usually consider this difference when deciding how to penalize an individual who violated probation. These judges may consider someone on felony probation as having a higher risk to the public.

References

  1. Probation and Parole in the United States, 2020 (Page 21)
    https://bjs.ojp.gov/content/pub/pdf/ppus20.pdf
  2. Burden of Proof
    https://www.law.cornell.edu/wex/burden_of_proof

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