In California, criminal offenders face harsh penalties, including lengthy jail and prison terms after a conviction. Fortunately, not all convictions will result in time behind bars. Sometimes, the court may sentence you to probation as an alternative to jail or prison time. Although not everyone is entitled to probation, being a first-time, non-violent offender could increase your chances of receiving a probation sentence.
While you can receive probation for misdemeanor and felony convictions, each defendant on probation must follow strict rules. Often probation conditions vary depending on the nature and severity of your charges. Although misdemeanor and felony probation have different restrictions, any site of probation violation will result in a probation violation hearing. The outcome of a probation violation hearing can have severe consequences, including jail time.
If you or your loved one face a probation violation and are unsure of the steps to take, you should consult a skilled criminal defense attorney for guidance. At Chula Vista Criminal Attorney, we are dedicated to offering the best legal advice to ensure the best possible outcome for your case.
Overview of Probation Violation
Probation is a typical sentence imposed after a conviction in California. Probation is always an option for first-time offenders and individuals with a history of non-violent crimes. When you face criminal charges, your attorney will negotiate with the prosecution for probation. If you face probation, you will serve a part of your jail sentence on community service.
While a probation sentence allows you to continue with your normal life and stay out of jail, there are strict conditions that the court imposes. Failure to follow your probation conditions is considered a probation violation. An arrest for a probation violation can result in probation termination and reinstatement of a jail sentence.
Under California PC 1203.2(a), you can face an arrest when there is probable cause to believe that you committed a crime or violated one or multiple terms of your probation. It is essential to understand that a probation violation arrest happens with or without an arrest warrant, depending on the circumstances. Any of the following individuals may initiate your arrest for probation violation:
- A police officer
- A parole officer
- A probation officer from your county probation department
Under California PC 13203.2(c), the judge has the authority to determine whether the allegations of probation violations are true. After your arrest, the judge could decide to release you or take severe measures on your probation sentence. This could include revocation of probation and reinstatement of jail time or harsher conditions. However, the action is not automatic. You must go through a probation violation hearing.
Terms of Felony Probation
When you face probation for a felony conviction, your probation is known as a felony or formal probation. Before the court sentences you to formal probation, the judge must order a probation report. The county probation department compiles this report by considering the details of your felony offense and criminal history. Often formal probation lasts for three to five years and has the following conditions:
- Payment of victim restitution
- Participation in a group or individual therapy
- Random drug testing for specific felony convictions
- Performance of community labor
- Agreement to submit to peace officers' searches of your person and property without a search warrant.
- Compliance with restraining orders
In addition to these terms, the court requires that you make regular check-ins with your probation officer. When you are sentenced to probation, the probation department appoints a probation officer for your case, and their roles include:
- Developing and recommending rehabilitation plans. The court may consider the probation officer's recommendations when imposing the probation conditions.
- Evaluating your progress. A probation officer is responsible for ensuring you serve your probation as the court requires. The regular check-ins necessary for felony probation allow the probation officer to determine whether you have moved out of state or violated any of the conditions.
- Keep your probation records. Anything that happens while you are on probation is recorded in your probation file and maintained by the probation officer. The probation officer will present the records if the court needs to refer to your probation.
- Reporting a probation violation. Since your probation officer must follow up with your conduct during the probation period, they have a right to order you to report to the court if they suspect a probation violation.
- Recommending court action following a probation violation. The judge decides to reinstate or revoke your probation. However, one of the factors that could influence that decision is a recommendation from your probation officer. During the probation violation hearing, the probation officer prepares a report indicating your conduct during probation and the action they find appropriate under the circumstances.
Terms of Misdemeanor Probation
Misdemeanor probation allows individuals who face a misdemeanor conviction to serve their sentence out of jail. Misdemeanor or summary probation is less strict than formal probation since the underlying crimes are not severe. Mostly, misdemeanor probation lasts between one to three years. However, in extreme cases, especially when facing a misdemeanor conviction after wobbler charges, the court extends the probation period to five years.
If you face a conviction for a misdemeanor sex offense that requires sex-offender registration, the court will order a probation report before issuing the terms of your probation. Unlike felony probation, misdemeanor probation does not mandate you to have a probation officer. Instead, you must appear before the court to report your progress.
At your regular court appearances, the judge determines if you have violated any of the terms. Failure to follow the following probation rules results in probation violation rules. California courts impose the following conditions for misdemeanor probation:
- Payment of court fines and restitution
- Participation in therapy
- Community service
- The requirement to seek employment
- Adhere to restraining orders for crimes involving domestic violence
Probation Conditions for DUI
Drunk driving is a severe offense under California law. Unless you caused an accident not or injuries while DUI, you will rarely serve jail time for a first-offense DUI. Additionally, you can escape jail time and face probation for subsequent convictions. When sentencing you to probation following a drunk driving convict, the court imposes the following conditions:
- Avoid involvement in criminal activity while on probation
- Submit to DUI breath and blood tests on suspicion or arrest for DUI
- Refrain from operating your vehicle with a measurable blood alcohol content
- Install an ignition interlock device on your vehicle
Probation Violation Hearing
A probation violation hearing is a legal proceeding that you must attend following an arrest for a probation violation. The court initiates this hearing when you commit a new offense while on probation or violate and of the original terms of your probation sentence.
Sometimes, you can secure a release on bail while awaiting your probation violation hearing. However, in severe probation violations, the court issues a no-bail hold. This means that you will remain in police custody pending the outcome of your violation hearing. In California, the judge could allow you bail if:
- The probation violation is minor
- You have complied with most of your terms
- You have no history of probation violation
During the probation violation hearing, the judge must decide on these factors:
- Whether or not to release you from custody
- Whether or not to terminate your probation. If the court decides to terminate your probation, the judge must decide on the action following the termination.
Your Rights at a Probation Violation Hearing
As you defend yourself against probation violation allegations in California, you will enjoy similar rights to the ones of defendants in a criminal trial, including:
- Right to legal representation. Your right to hire an attorney during your hearing for a probation violation is one that you should never ignore. It is essential to understand that the burden of proof in this hearing is low. Therefore, the possibility of being found in violation is higher. Your attorney helps you navigate the process and convince the judge that you deserve to continue with your probation.
- Right to present mitigating evidence. The prosecution presents the evidence to prove that you violated probation. You do not have to sit there and watch your freedom pass. With the guidance of your attorney, you can present evidence to dispute the allegations.
- Right to disclosure of evidence. During your hearing, you have a right to know about the evidence the prosecution uses against you.
- Right to present witnesses. If there is a mistake of fact in the allegation of probation violation, you can exercise your right to call upon witnesses to testify in your favor. Additionally, you can use the court's power to force witnesses to appear in court and testify.
- Right to testify on your behalf
Consequences of Probation Violation in California
Under PC 1203,3, the court has the right to modify, revoke, or change the terms of your probation if you are found guilty of a probation violation. After considering the details of your probation violation allegations and your defense, the judge has the discretion to determine whether the allegations are true. Additionally, the judge determines the appropriate action to take for your probation sentence.
Some of the factors that a judge could consider when deciding on the consequences of your probation violation include:
- Your criminal history. California law is strict on repeat offenders. The court could be reluctant to reinstate your probation if you have an account of serious convictions.
- Your history of probation violations. If you have been in court again for a probation violation, the judge may decide to terminate the probation and send you to jail to serve your original sentence.
- Recommendations from a probation officer. During your probation hearing, the probation officer responsible for your case may provide a statement to the court on your overall conduct while on probation, and their recommendations could impact the judge's decision.
- The seriousness of your violations. The court imposes a wide variety of probation conditions after following your probation sentence. The specific condition you violated may play a significant role in your probation violation hearing.
Some of the common consequences of a probation violation include:
Revocation of Probation to Reinstate the Original Sentence
In most cases, the judge suspends your jail sentence and replaces it with probation. If the court finds ground in the allegations of your probation violation, the judge could terminate the probation and impose the original prison or jail time for your crimes. When the judge revokes your probation, the sentence you will serve may be similar to what you would have served regardless of the time you have served on probation.
Revocation of Probation and Imposition of a Maximum sentence
Another consequence and outcome of a probation violation is revocation of your probation to impose the maximum sentence allowed by the law. For example, if you face a conviction for a felony that requires you to serve three years, five years, or seven years in jail, the judge could forgo the jail sentence and send you to probation for three years. If you violate your probation in this case, the court can legally terminate your probation and sentence you to seven years which is the maximum.
Extended Probation Period
For most offenses, misdemeanor probation lasts for one to three years, and felony probation lasts between three to five years. A violation of your probation terms can prompt the court to extend your probation term.
Additional Probation Terms
Probation terms often vary in severity depending on the nature of your charges. If you are found to have committed a probation violation, the court could reinstate your probation with additional terms, including:
- Counseling. If you are sentenced to probation for a violent crime, the court may order that you attend anger management classes or counseling as an additional term of your probation.
- Substance abuse treatment. If your probation violation involves possession of narcotics or alcohol, the judge may order an additional requirement to participate in rehabilitation and substance abuse treatment programs.
- Community service. If community service is not part of your initial probation conditions, a probation violation could cause the court to add this to the conditions of your probation.
Although reinstatement of probation with new or additional terms is better than going to jail, some other terms are very harsh and challenging to comply with.
What Happens When There is no Probation Violation?
The best outcome of your probation violation is a reinstatement of your probation with the same terms as before. Mostly, the court will take this action when you prove that there was no probation violation and the evidence to support the probation violation allegations is insufficient. If the judge reinstates your probation, the court orders your release from custody and return to your supervised release. Additionally, the judge will issue a warning on the possible consequences of a further probation violation.
Judges are most likely to reinstate your probation if:
- You are a first-time offender
- Your probation violation was minor
- You are not a threat to the community
- The underlying offense is not serious
Frequently Asked Questions on Probation Violation in California
The issues surrounding probation violations are complicated. If you face an arrest for a probation violation, you may be unsure how to proceed, and the uncertainty of the outcomes is devastating. The following are some frequently asked questions on probation violations:
1) Is violation of misdemeanor probation serious?
California courts offer informal probation to defendants guilty of minor, non-violent offenses. Although informal probation is not as serious as felony probation, violating either of the terms could see you spend a significant amount of time in jail.
2) What is a probation violation?
Several actions could attract an arrest and charges for probation violation in California, including failure to:
- Complete court-ordered classes and treatment programs
- Attend your meetings with the probation officer
- Appear for your court hearings
- Finnish the court-ordered activities such as community service within the specified time
Additionally, the police or probation officer could cite you for probation violation if you:
- Drive under the influence
- Drive with a suspended or revoked driver's license
- Face an arrest for another crime
3) Can I expunge my record after the probation violation?
Expunging a criminal record involves removing it from your record and enabling you to avoid the disabilities associated with the record. This allows you the right against discrimination from landlords and employers after a background check. However, probation plays a vital role in your ability to expunge a criminal record in California.
One requirement you must meet when filing for expungement is to complete your probation and obey all the conditions. If you violate your probation, your chances of filling a successful expungement petition are lower. With the guidance of a skilled attorney, you can navigate the probation violation allegations to ensure you keep your rights of an expungement.
4) Who controls the consequences of a probation violation?
The judge decides how to treat your probation after a probation violation hearing. However, there are several factors that they rely on, including your criminal history, your history of probation violation, and the seriousness of the breach. Sometimes, the court will consider how far along your probation the violation occurred. In most cases, a violation at the beginning of probation is treated more harshly than the one you commit at the end of probation.
5) How does the court sentence you for a probation violation?
In California, the consequences of a probation violation are centered around the probation sentence. The burden of proof for the probation violation is lower, and there is no requirement to appear before a jury. Instead of proving guilt beyond a reasonable doubt, the prosecution only needs to present evidence of the probation violation.
If the court finds the allegations true, the judge can take various actions, including revocation of probation and reinstatement of the original jail sentence.
6) How can I lessen the severity of the consequences of a probation violation?
Coming out of your probation violation hearing without additional consequences is possible. However, it would be best if you convinced the court that the violation never happened or was minor. Seeking the services of a skilled attorney is vital. An attorney experienced in probation violation laws will help you navigate the process and secure the best possible outcome.
7) Can I go to jail for a probation violation?
Yes. If the court finds that you violated your probation, the judge can revoke your probation. Following a probation revocation, the judge can either reinstate the original jail sentence or, in other cases, sentence you to the maximum penalty for your underlying offense.
8) What is the difference between a probation violation hearing and a criminal trial?
A probation violation hearing differs significantly from a criminal court proceeding. In a criminal trial, the prosecution must prove your guilt beyond a reasonable doubt. On the other hand, the judge at the probation violation hearing only requires the prosecutor to show more likely than not that you violated one or more of your probation terms.
Although these two hearings are different, you have the following rights in both the probation violation hearing and your criminal trial:
- Right to legal guidance
- Right to subpoena witnesses
- Right to testify to your accounts
Find a Competent Criminal Defense Lawyer Near Me
Facing a probation sentence after a criminal conviction in California helps you avoid part of or your entire jail sentence. However, probation does not come easy. Whether you face felony or misdemeanor probation, there are conditions that you must respect while on probation. A probation violation is reported to the court, where you must appear to have your fate determined. If the court finds the probation violation allegations against you, you risk having harsher probation terms or serving a jail sentence.
Unfortunately, some probation violations are unintentional. If you face charges of probation violation, you should not blow your chance of avoiding jail time by proceeding without legal guidance. At Chula Vista Criminal Attorney, we have the skills and experience you need to convince the judge that you did not commit the violation, or they should give you another chance by allowing you to remain on probation.
We serve clients seeking legal guidance and representation to navigate probation violation allegations and hearings in Chula Vista, CA. Call us today at 619-877-6894 and allow us to guide you through the challenging legal process.