Probation is a very difficult process. There are many confusing rules and procedures that a person must follow in order to successfully complete probation. Completing probation is very difficult, and being accused of violating the rules can have a major impact on your life. When you have been accused of violating the rules of probation, your life can be turned upside down.
You may have thought that you were successfully complying with all of the different rules and that you were going to complete probation and finally be able to move on with your life. Now you have been accused of breaking one of the rules and if your probation is revoked, you could potentially be sent back to jail or prison.
The probation revocation process is very confusing. You may not even understand what it is that you did wrong. Your agent may pressure you into waiving your right to defend yourself against these allegations. If you are facing a probation revocation, it is very important that you immediately contact one of the experienced criminal defense attorneys at Brabazon Law office. Our attorneys have been successful at defending against the allegations and keeping their clients out of jail. One of our knowledgeable and experienced attorneys at Brabazon Law Office can do a lot to help you through this confusing process.
When an individual is convicted of a crime, a court may, with the offender's consent, order probation as part of that person’s sentence. The individual will have a probation agent to whom they must report during the probation term. There will be a set of rules, called “conditions” that the agent will explain to the individual. The court can also list a set of conditions that the individual must follow while on probation. Examples of conditions of probation include:
• Payment of restitution and/or fines
• Obtain an HSED or GED
• Obtain a counseling assessment
• Maintain full-time employment or full-time school (or a combination of both)
• Abstain from alcohol use
• Community service
• Restrictions on relationships
When an individual on probation is suspected to have violated the conditions of probation, the agent may take the person into custody without a hearing. An individual can be taken into custody for simply violating a condition of probation. It does not require a violation of the law. Once the person is in custody, the agent will take a statement from the individual. The agent will often attempt to get the individual to admit to the allegations. There are strict time limits as to when this statement must be taken. The agent will conduct an investigation into the alleged violations. Following the investigation, the agent will make a determination on whether to revoke the individual’s probation. If the agent decides to revoke the individual’s probation, a notice shall be provided to the individual within 2 working days.
If the agent determines that revocation is not necessary, the agent may consider an Alternative to Revocation (ATR). ATRs may be formal or informal. A formal ATR may include sending the individual to a halfway house or rehabilitative/treatment center.
The availability of an ATR will depend on the ability to implement the plan within specific time limits. If the ATR cannot be implemented within 60 days of the date the Notice of Violation was served on the individual, the ATR will be deemed “not available.” Exceptions to this time limit are sometimes available, but must be formally requested through the department of corrections.
If the probation agent decides to revoke an individual’s probation, there is a set of procedures that must be followed. A series of hearings will take place. Again, each of these hearings must take place within specific time limits.
A preliminary revocation hearing will be scheduled. A preliminary hearing is not required in all circumstances. An individual may waive his or her right to a preliminary hearing.
At the preliminary hearing, the probation agent will present evidence in support of the violation allegations. Evidence may include witnesses and the written statement given by the individual at the outset of this process. If the individual is represented by an attorney, that attorney can also subpoena witnesses and present evidence challenge the validity of the allegations.
A magistrate will make a probable cause determination. Probable cause is defined as evidence that makes it reasonable for the magistrate to believe that the person probably committed the violation. If the magistrate believes that the individual probably committed the violation, then a final revocation hearing will be scheduled.
At the final revocation hearing, the agent must be prepared to prove that the individual committed the alleged violation, and that the violation is sufficiently serious to require revocation. The determination of whether to revoke the individual’s probation is made by an Administrative Law Judge (ALJ). The ALJ will listen to and evaluate the evidence presented both by the agent and the individual or his or her attorney.
The ALJ is to consider only the evidence presented at the final revocation hearing and shall decide:
• Whether the individual committed the conduct underlying the
• If the individual committed the conduct, whether the conduct
constitutes a violation of the rules or conditions of supervision;
• If the individual violated the rules or conditions of supervision,
whether a revocation should result; and
• Make specific findings as to dangerousness, whether a decision not
to revoke would unduly depreciate the seriousness of the violation,
whether there is a need for further correctional treatment, and
whether this is best provided in an institutional setting.
Following the hearing, the ALJ will prepare a written Findings of Fact, and Conclusion of Law, which will set forth his or her determination on whether to revoke. Those documents must be sent to the agent, the individual, and the individual’s attorney within 10 working days of the final revocation hearing.
If the ALJ determines that revocation is not necessary, the individual’s probation will be resinstated. If the ALJ determines that revocation is necessary, the individual’s probation will be revoked and a sentencing hearing will be scheduled.
The Department of Corrections or the individual may appeal the ALJ’s decision by seeking judicial review of the decision by petition for Writ of Certiorari to the sentencing court.
The sentencing hearing will be held in the court where the individual was originally sentenced to probation. The agent will provide a report to the district attorney, the offender and his or her attorney, and the sentencing judge. In the report, the agent will make a sentencing recommendation. The court is not bound by the agent’s recommendation. At the hearing, the district attorney and the offender or his or her attorney may make a sentencing recommendation to the court and make arguments supporting their recommendation. The judge has the ultimate authority to determine the individual’s sentence and is not bound by any recommendation.