Sanctions can be taken against those who violate the terms of their Court imposed probation. The most severe sanction is to revoke probation. A revocation of probation is an action taken against a probationer that fails to comply with the terms of his or her probationary grant, this includes the failure of the individual to refrain from committing a new criminal offense. In the past decade probation revocations have been a major prosecutorial tool used to punish those who have been arrested and charged with new offenses. The advantage to the prosecution is the lack of procedural protections afforded the accused. When a formal probation revocation is filed in conjunction with a new case, the District Attorney has tremendous leverage to force a plea bargain consistent with the District Attorneys terms.
Probation revocations typically involve a multi step approach. The first action is that the prosecutorial agency or probation department makes a determination that the individual has in fact violated the terms of his probation. Second, is the initiation of formal revocation hearing proceedings. In many cases, the Court may make a preliminary decision to revoke probation based on probable cause contained within the four corners of a police report or probation officer’s declaration when the probationer is not already in custody. Once a person is in jail and taken before the Court, formal proceedings are instituted. Certain minimal constitutional protections are given to a person under these circumstances such as the right to be advised of the basis of the revocation and the right to be heard concerning any possible defenses or rebuttal to the allegations set forth in the pleadings or probation officers report.
When the probation officer concludes a reason exists to revoke or violate a probation and the person is not in custody, a letter or other correspondence is sent indicating the date and time of any Court hearing on the matter. On the date given a Judge can make initial decisions concerning the probation status and can temporarily revoke probation and remand or incarcerate the person pending a formal hearing. The Judge also has the inherent discretion to allow O.R. release which means the person can be allowed to stay out on a signed promise to re-appear for any future hearings. The importance of having a lawyer at this stage cannot be understated. An experienced lawyer experienced with probation violation proceedings can make all the difference in the world.
A petition or motion requesting a revocation of probation can be based on one or more grounds but the grounds must be those set forth in Penal Code 1203.2(a) which are:
- A direct violation of one of the enumerated conditions of probation, for example, failure to pay a fine, failure to attend court ordered counseling, or failing to abide by a stay away order.
- Associating with known criminals or failure to abandon a vicious lifestyle.
- Subsequent commitment of other criminal offenses.
- Conduct or behavior evidencing that the probationer in no longer fit to stay at large. In other words, a determination that the person given probation is incapable of leading a law abiding life, or is simply not deemed safe to remain within society in general.
- Willful failure to pay Court ordered restitution despite an obvious ability to pay or failing to work to pay off the victim restitution.
In the unfortunate event you or a person you know has been sent notice of an impending probation violation, a lawyer familiar with the intricacies of revocation hearings, the procedures and substantive law is essential to a successful outcome. Contact attorney Mani Khavajian, he has handled probation violation matters resulting in the reinstatement of probation and avoidance of jail for his clients. Call for a consultation toll free 855-4VISALAW.