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Can you violate probation and not go to jail?
Yes, it is possible to violate probation and not get sent to jail. Minor violations of probation, or “technical” violations, are not always punished with custody time. Nor does the judge even have to revoke probation. Instead, the judge may reinstate the original terms of probation, or modify the terms to make them stricter.
Probation violations are the least likely to lead to jail time if:
However, even if all of these factors are present, the judge still has the discretion to revoke probation and send the probationer to jail.1
A technical violation of probation is a relatively trivial infringement of the rules of supervised release.
When a judge sentences a defendant to probation rather than to prison, the judge will set out the terms and conditions of that supervised release. These will depend on the underlying offense and the defendant’s criminal record. Some common conditions of your probation can include:
Some violations of these rules will be more serious than others. Relatively minor violations are technical violations. More serious ones are substantive violations. Committing another crime is a common example of a substantive violation. Being 10 minutes late for a meeting with a probation officer or a required court appearance would likely be an example of a technical violation.
Violating one of the terms of your probation that lies in between these extremes could be considered a technical or a substantive violation. This makes the nature of the violation very important. A criminal defense attorney can present mitigating evidence and argue that the violation was only a technical one to potentially avoid a jail sentence and keep you on supervised release.
The severity of the underlying criminal offense can be a factor in whether the judge revokes probation after a violation.
Felony offenses lead to felony probation, while misdemeanor crimes lead to misdemeanor probation, often called summary probation. Because criminal cases that are felonies are more severe, felony probation tends to have a longer probation period and have stricter terms than a summary probation sentence.
Many judges take this into consideration when deciding how to penalize someone who has violated the terms of their probation. They may see someone on probation for a felony as more of a risk to the public.
Probation violations hearings are triggered when a judge or probation officer thinks that the probationer has violated one of the terms of his or her release. A bench warrant may be issued for the probationer’s arrest.
Once the probationer is arrested, he or she will generally be held in custody. It is in the judge’s discretion to release the probationer on bail before the revocation hearing is held.
At the revocation hearing, it is up to the prosecutor to show that the probationer violated a term of their supervised release. Under California’s criminal law, the prosecutor has to show this by a preponderance of the evidence, though he or she can use hearsay evidence to prove their case.3
Once the judge has heard the prosecutor’s evidence that the probationer violated the terms of their release, the probationer’s criminal defense lawyer can present evidence that tells the probationer’s side of the story. Common defenses to a claim of a probation violation include:
After hearing the evidence from both sides, the judge will make a ruling.
Judges at a probation violation hearing can:
If the judge decides to revoke probation, the prison sentence would be from the same sentencing range that was suspended, before. The judge can impose up to the maximum sentence available.
Probation revocation is a common penalty for people who are facing a new charge. If the judge finds that the defendant violated probation but that the violation was a minor or a technical violation, the judge will be more likely to merely reinstate or modify the terms of the probation.
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.
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