If on Probation and You Get in Trouble Again What Happens
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There are 3 possible consequences of a felony probation violation: The judge can revoke probation and send the probationer to jail or prison, or modify the terms of probation to make them stricter, or reinstate probation under its original terms. While the judge has great discretion at the probation violation hearing, the type of violation will likely guide his or her decision.
What can happen after a felony probation violation?
After a violation of felony probation, there are 3 things that can happen. The judge can:
- reinstate probation under the original terms,
- modify the terms of probation to make them stricter, or
- revoke probation and send the probationer to prison to serve the rest of his or her sentence.
Judges at the probation violation hearing are generally given a lot of discretion in how to react to a proven violation, including in California.1 However, the following factors can make it more likely that the judge will merely reinstate or modify probation, rather than revoke it:
- the violation was the probationer's first,
- other than the violation, the probationer is on course to complete the terms of probation on time,
- the violation was a minor one or a technical violation, and
- the underlying offense was for a low-level felony
If at least one of these factors is in play, the probation violation may not lead to a jail sentence. However, violations of felony probation, rather than misdemeanor or informal probation, are taken far more seriously by the criminal justice system.
What happens if the judge reinstates probation?
If the judge decides to reinstate probation, then the probationer will likely be released from custody. He or she will return to their term of supervised release under the same rules as before. The judge may warn the probationer not to break the rules, again.
This is the best outcome for a probationer who has been accused of violating probation, other than proving that there was no violation, at all. However, if probation is reinstated and then the probationer breaks one of its rules, later on, the prior violation will be used against them.
Judges are most likely to reinstate probation if:
- it was a first-time violation,
- the violation was minor or trivial,
- the underlying offense was minor or non-violent, and
- the probationer is not a threat to the community.
For example: Clark is on felony probation for manufacturing a controlled substance. He is 15 minutes late for his meeting with his probation officer.
What will happen if the terms are modified?
If the judge modifies probation, then the probationer will be released back to community supervision. This time, though, the rules of their probation will be stricter than before.
While securing a modification to probation is better than having probation revoked completely, the details of the modification matter, a lot. In some cases, the new terms of release are so stringent that they will be very difficult to comply with for very long.
A skilled criminal defense attorney can help defendants secure the best possible terms for their supervised release.
What happens if probation gets revoked?
If the judge revokes probation, then the probationer will be sent to prison. He or she will have to spend the remainder of their suspended sentence as jail time, rather than out on supervised release. If the sentence was not suspended, then the probationer can face up to the maximum sentence for the underlying offense.
Probation revocations are common when the violation was a serious one. If the probationer committed a new crime, the offense will violate a term of their probation and lead to a violation hearing. Not only will the probationer likely be sent to jail for violating probation, he or she will also face criminal charges for the new offense.
For example: Clark was convicted for manufacturing drugs and put on probation. His sentence of three years in prison was suspended. 1 year later, he gets arrested, charged, and convicted for driving under the influence (DUI) after he failed a drug test on the road. In addition to the DUI offense, Clark's probation for his drug manufacturing offense will also likely be revoked and he will be sent to prison for the remaining 2 years of his sentence.
A revocation is the worst outcome that can happen in a probation violation hearing. Criminal defense lawyers do all that they can to avoid this outcome.
What if no violation is proven?
If no violation is proven, then the probationer will be released from custody and will return to their period of supervised release. This is just like a reinstatement of probation, except for 2 things:
- the probationer will not be warned by the judge not to commit another violation, and
- there will not be a prior probation violation on the probationer's record, if they are accused of breaking a rule, again.
Proving that there was no violation is the best outcome possible at the probation violation hearing.
How does the probation violation hearing process work?
If the judge or probation officer believes that a term or condition of felony probation has been violated, a bench warrant will be issued. The probationer will be arrested and held in county jail. A probation violation hearing, also known as a revocation hearing, will be scheduled.
Between the arrest and the hearing, it is in the judge's discretion to release the probationer on bail.
At the hearing, the prosecutor has the burden of proof. They have to show that the probationer violated a term of his or her release. In the state of California, they have to show this by a preponderance of the evidence.2 This is lower than the beyond a reasonable doubt standard needed for a conviction at trial.
Once the prosecutor has argued law enforcement's case, the probation violation attorney will present evidence that:
- the probationer did not actually violate a term of their release, or
- the violation was not serious enough to warrant a revocation.
The judge will then issue a ruling.
What is a probation violation?
Probation is a form of supervised release. While you will not spend your sentence as prison time, you will still have to comply with the terms of your probation. These conditions of probation can be quite strict. The terms and the period of time on probation will depend on the criminal case and the defendant's criminal record.
Some of the most common are:
- not committing another criminal offense during the probation period,
- submitting to, and passing, random drug testing,
- appearing at regular court dates,
- seeing an officer from the probation department,
- paying victim restitution, and
- performing community service.
Failing to comply with any of these rules can amount to a violation of probation. Anyone who has violated probation can face a probation revocation hearing and serve the rest of their prison sentence in state prison.
Not all violations are the same, though. If you violate probation by being late to a required court date, it will likely be treated as a technical violation. These are often sanctioned by reinstating or modifying probation. Committing another crime, though, will almost certainly lead to a revocation.
How is this different from informal probation in California?
Formal probation, also called felony probation, is different from informal, or misdemeanor, probation in that violations of felony probation are more likely to lead to a revocation. Violations of misdemeanor probation are more likely to be punished with a modification or reinstatement of probation.
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
Source: https://www.shouselaw.com/ca/blog/consequences-for-a-felony-probation-violation/
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