How to Win a “Probation Violation Hearing” in Colorado

If you are suspected of violating the terms of probation, the court will hold a hearing to determine if probation should be revoked and you should be sent to jail.

If you win your probation violation hearing, you can continue to avoid jail time if you follow the conditions of probation.

If you lose the hearing, you could be sentenced to jail or prison for up to the maximum term for the crimes of which you had been convicted.

In this article, our Colorado criminal defense lawyers will address:

• 1. What is a “probation violation hearing” in Colorado?
• 2. Who reports a probation violation?
• 3. What are common probation violations reported in Colorado?
• 4. What is the court process for a probation violation hearing?
• 5. What is the standard of proof in a probation violation hearing?
• 6. How does the judge decide whether I violated probation or not?
• 7. What happens if I lose a probation violation hearing?
• 8. Can you appeal a probation violation decision?

1. What is a “probation violation hearing” in Colorado?

A probation violation hearing is a court hearing to determine if your probation should be

• revoked,
• remain in place, or
• subject to different conditions on your release.

Probation in Colorado is an alternative to jail. Anyone in Colorado convicted of an offense (other than a Colorado class 1 felony or a Colorado civil infraction) is eligible to apply for probation, with some exceptions.¹

If probation is granted, you can avoid jail or prison time as long as you follow the conditions ordered by the court. The terms and conditions will depend on a number of factors, including:

• The seriousness of the offense
• Nature of the crime
• Criminal history
• The financial impact of the crime
• Types of victims involved ²

The Colorado Probation Department (CPD) in your county will be in charge of supervising you during your time on probation. If you violate the conditions of your probation, fail to report for probation, or are arrested for another crime, you may have a probation violation hearing to determine whether your probation should be revoked and you’ll be sent to jail.

2. Who reports a probation violation?

In most cases, the probation officer (P.O.) reports the violation to the court. Depending on the type of violation, the P.O. may simply talk to the individual about a minor violation, issue a summons, or have the individual arrested and taken to court.

The prosecutor may then file a “Motion to Revoke Probation” (MRP) for violating the terms of probation.

Probation violations can also be reported to the P.O. by anyone aware of the violation, such as an employer or the victim of a crime. For example:

Example: Charlie is on probation after a domestic violence assault on his ex-girlfriend, Becky. As part of Charlie’s probationary conditions, Charlie is not supposed to contact Becky. While on probation, Charlie visit’s Becky’s workplace to say he is sorry for what happened. Becky reports Charlie’s visit, which is in violation of his probationary conditions.

3. What are common probation violations reported in Colorado?

There are many types of probationary conditions. The court can impose any conditions in its discretion that the court deems “reasonably necessary to ensure the defendant will lead a law-abiding life and to assist the defendant in doing so.”³

When the defendant is granted probation, he or she will be given a written statement detailing the probation conditions. This statement should explicitly set forth the probationary conditions so the defendant understands what type of actions are prohibited.⁴

Probationary conditions depend on a number of factors, depending on the defendant’s criminal history and the type of crime involved. However, every sentence shall contain the explicit condition that the defendant:

• Not commit another offense during the probationary period;
• Pay restitution to the victim(s);
• Not harass, intimidate, or tamper with any victim or prosecution witness;
• Comply with substance abuse testing and treatment; and
• Comply with any court orders regarding the treatment of sex offender registration.⁵

General Probation Conditions

There are many other general probationary conditions the court can impose. These include:

• Working faithfully at a suitable employment.
• Pursuing a course of study or vocational training.
• Undergo available medical or psychiatric treatment and remain in a specified institution if required for that purpose.
• Participate in restorative justice practices, like community service or victim/offender mediation.
• Financially support dependents and meet other family responsibilities.
• Pay costs of the court proceedings and supervision.
• Pay any fines or fees imposed by the court.
• Repay reward paid by a crime stopper organization.
• Refrain from possessing a firearm or other dangerous weapon.
• Refrain from excessive use of alcohol or any unlawful use of controlled substances.
• Report to a CPC probation officer (PO) as directed by the court or the officer.
• Permit the PO to visit the defendant at reasonable times at the defendant’s home and elsewhere.
• Remain within the jurisdiction of the court, unless granted permission to leave.
• Answer all reasonable inquiries by the PO.
• Promptly notify the PO of any change in address or employment.
• Be subject to home detention.
• Be subject to electronic or global position monitoring.⁶⁷⁸

It’s also a common requirement to reside only in the county where the conviction and probation are based. However, it can be possible to get probation transferred to and from Colorado and another state.

Domestic Violence Convictions

In cases of domestic violence, including stalking or harassment, the court can impose additional conditions of probation. These terms include:

• Comply with existing court orders regarding family support;
• Comply with any existing court orders concerning a proceeding to determine paternity, custody, the allocation of decision-making responsibility, parenting time, or support;
• Comply with the terms of any protection order in effect against the defendant during the probationary period;
• Refrain from possessing a firearm, destructive device, or other dangerous weapon, unless granted written permission by the court or PO.⁹

Probation Requiring Drug Treatment

The court can include, as a condition of probation, a requirement that the individual participate in a substance abuse treatment program. If the substance abuse assessment determines the individual needs residential treatment, the court can make residential drug treatment a condition required by the court.¹⁰

In some cases, there is a medical marijuana exemption for the general probationary condition against the use or possession of drugs. The possession or use of legal medical marijuana may not necessarily be considered an offense that constitutes a violation of the probationary terms.¹¹

Probation for Defendants Under the Age of 18

Some defendants under the age of 18 are tried and convicted as adults. There may be special probationary conditions for defendants who are under 18, including the requirement to attend school or an educational program or to work towards a high school diploma or equivalency examination.¹²

4. What is the court process for a probation violation hearing?

If you violate any of the terms of your probationary release, you may be arrested on a “no bond” warrant and taken into custody. The prosecutor will then file a “Motion to Revoke Probation” (MRP) for violating the terms of probation. This motion will be heard before the court in a probation violation hearing.

You have the right to an attorney during your probation violation hearing. A violation hearing will be like a mini-trial before a judge instead of a jury. The prosecutor will present evidence of a violation and your attorney will have a chance to respond to the allegations. The judge will then determine as to whether:

• Your probation should be revoked and you will be returned to custody to serve out your sentence.
• The motion will be denied and you will continue the terms of your probation.
• You will continue probation but the judge will change terms of your or add additional conditions and restrictions.

The court process for a probation revocation hearing is set out in C.S.R. 16-11-206. At the first appearance, the court shall advise the probationer of their rights, including that there is no right to trial by jury.¹³

The court will advise the probationer of the charges against him or her and the possible penalties, requiring the probationer to plead guilty or not guilty.¹⁴

5. What is the standard of proof in a probation violation hearing?

The standard of proof is the level of evidence required to establish proof in a criminal case. For a criminal conviction, the standard of proof is generally “beyond a reasonable doubt.” Beyond a reasonable doubt means there is no “doubt based upon reason and common sense which arises from a fair and rational consideration of all the evidence, or the lack of evidence.”¹⁵

However, the standard of proof in a probation violation hearing may be lower than “beyond a reasonable doubt.” In most cases, the standard of proof in a probation violation hearing is “by a preponderance of the evidence.” If the judge is reasonably satisfied that the individual violated the probational conditions based on the evidence presented, the judge can grant the motion to revoke probation.

How does a prosecutor prove a probation violation?

The prosecutor will generally base his or her case on the PO’s violation complaint, report, and memorandum. The prosecutor will present evidence of the probational violation, including any criminal records or testimony.

The prosecution has the burden of establishing that the individual violated a condition of probation.¹⁶

For violations of failure to pay court-ordered compensation, costs, or fees, evidence of the failure to pay is “prima facie” evidence of a violation.¹⁷

If the individual is accused of committing another crime while on probation, that offense has to be proven beyond a reasonable doubt. However, the court can wait and continue the revocation hearing until after the criminal proceeding is finished.¹⁸

What evidence can the prosecutor use to show I violated probation?

The evidence that can be presented in a probation violation hearing is much broader than the evidence available in a criminal case. In a revocation hearing, the court can consider any evidence with probative value, “regardless of its admissibility under the exclusionary rules of evidence if the defendant is accorded a fair opportunity to rebut hearsay evidence.”¹⁹

For example, many types of evidence may not be admissible in a criminal court that are admissible in a violation hearing. This includes “hearsay,” or most out-of-court statements. In a probation violation hearing, hearsay evidence is admissible, as long as the individual has the chance to respond to the evidence.

In addition, unlike in a criminal trial, your right to remain silent under the 5th Amendment can be used against you. Refusing to answer questions, refusing to submit to chemical tests, or refusing to admit activity can be used as evidence against you in a probation violation hearing.

The prosecutor can present almost any type of evidence that would tend to show you were in violation of probation. This could include:

• Testimony by someone that you were involved in criminal activity;
• Video or photo evidence showing you in a prohibited location;
• Court records showing a violation;
• Drug treatment facility records showing you did not appear for treatment;
• Failed drug test results;
• Probation officer statement that you did not report as required;
• Criminal arrest records;
• Statement by an employer that you did not appear for work; or
• Any other evidence of probative value.

How can I defend against a probation violation?

Your attorney can use a number of tools to defend you in a probation violation hearing. As the defendant, it is the prosecutor who has the burden of proof. You do not necessarily have to prove you are innocent, only to show that the prosecutor has failed to prove his or her case by a preponderance of the evidence.²⁰

In most cases, your defense can include a response to the evidence presented by the prosecutor. For example, your defense attorney can argue the witness statements were not reliable, there was a mistake in the identification of someone else, or that the drug test results were tainted or unreliable.

In addition, you can admit the violation and your defense attorney can negotiate to let you remain free from incarceration. This could include apologizing for a minor violation and showing that you have taken steps to make sure this type of violation will not occur in the future.

6. How does the judge decide whether I violated probation or not?

After considering all the evidence and arguments, the judge will make a determination whether to grant the motion to revoke probation or deny the motion. The judge can also release you on probation on condition of additional terms and requirements.

7. What happens if I lose a probation violation hearing?

The court will issue a decision within seven (7) days after the hearing to either revoke or continue probation.²¹

If the judge decides that you violated probation, the court shall either revoke or continue the probation. If the judge revokes your probation, the court can then impose any sentence or grant any probationary terms which might have been originally imposed.²²²³

8. Can you appeal a probation violation decision?

You can appeal the court’s decision to revoke probation. However, the grounds for an appeal are very limited. This generally requires some procedural violation. If you believe your probation was unjustly revoked, talk to an attorney as soon as possible about your options.

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