Probation Violations
What is the process for a probation revocation?
When the Department of Community Supervision (probation) alleges that someone has violated their probation, they take out a probation warrant which alleges various violations of probation. Generally, the probationer will then be arrested (if they’re not already in jail for new charges) and wait to go before a judge. At that time, the probationer will have the opportunity to deny or admit to the allegations. If the probationer denies the allegations, the judge will often set a revocation hearing to make a determination about the allegations.
What is a violation of probation?
Many things can be a violation of probation.
Technical violations of probation
Failing to report to probation
Failing to notify probation of a change of address
Failing a random drug screen
Committing new crimes
Failing to complete special conditions of the sentence (such as rehab, or classes)
What rights does a probationer have?
A probationer does not have the full array of constitutional rights that he enjoyed before being put on probation, but he is still entitled to due process. The probationer is not entitled to a trial to decide whether there was a violation of probation, but they are entitled to a hearing where the state has to prove to a judge, by a preponderance of the evidence, that the probationer violated their probation. This is lower standard than proof beyond a reasonable doubt, which is the standard for new criminal charges. Preponderance of the evidence basically means that it is more likely than not that the probationer violated probation.
The courts have ruled that a probationer is entitled to less protection, because they are being allowed to serve a sentence on probation instead of in custody. Additionally, certain protections (such as being able to exclude improperly obtained evidence) that the accused would have in a new criminal case, do not apply at a probation revocation. This can result in very frustrating circumstances where someone on probation is searched illegally and the Government cannot proceed on the new charges, but they can still use the evidence against the probationer at a revocation hearing.
Probation violations can be exceptionally tricky and dangerous. Since the burden of proof is lower, it is easier for the Government to convince the judge to punish you. A skilled criminal defense attorney can be the difference between having your probation revoked to prison, or being released back to probation. Probation violations can be quick to resolve, and so you need an attorney willing to work tirelessly to prepare and investigate quickly.
Thayer has extensive experience handling probation revocations, as a criminal defense lawyer, involving new charges, technical violations, and violations of special conditions. He has convinced probation to withdraw their probation warrants by convincing them that no violation occurred, has negotiated resolutions to probation violations that resulted in his clients being released, and had probation revocation hearings where the judge determined that no violation occurred.