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However, even if all of these factors are present, the judge still has the discretion to revoke probation and send you to jail.1
What are technical violations?
A technical violation of probation is a relatively trivial infringement of the rules of supervised release.
When a judge sentences you 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 your criminal record. Some common conditions of your probation can include:
refraining from further criminal activity,
regularly checking in with the judge for progress reports or with a probation officer,
Technical violations are minor, such as being 10 minutes late for a meeting with a probation officer or a required court appearance. Substantive violations are more serious, such as committing another crime.
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.
Does it matter whether it is misdemeanor or felony probation?
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 has stricter terms than a summary probation sentence.
Many judges take this into consideration when deciding how to penalize you if you have violated the terms of your probation. If you are on probation for a felony, they may see you as more of a risk to the public.
Is the penalty determined at the probation violation hearing?
Probation violation hearings are triggered when a judge or probation officer thinks that you have violated one of the terms of your release. A bench warrant may be issued for your arrest.
Once you are arrested, you will generally be held in custody. It is in the judge’s discretion to release you on bail before the revocation hearing is held.
What happens at the hearing
At the revocation hearing, it is up to the prosecutor to show that you violated a term of your supervised release. Under California’s criminal law, the prosecutor has to show this by a preponderance of the evidence, though they can use hearsay evidence to prove their case.3
Once the judge has heard the prosecutor’s evidence that you violated the terms of your release, your criminal defense lawyer can present evidence that tells your side of the story. Common defenses to a claim of a probation violation include:
you did not, in fact, violate the terms of probation, and
the violation was trivial enough to be a technical violation that does not warrant a revocation of probation.
After hearing the evidence from both sides, the judge will make a ruling.
What are the possible outcomes of the hearing?
Judges at a probation violation hearing can:
reinstate probation with the same terms and conditions as before,
modify probation to make the rules more restrictive, or
revoke probation and order you to spend the remainder of your sentence in jail or prison.4
Probation revocation is a common penalty if you are facing a new charge. If the judge finds that you 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.
If the judge decides to revokeprobation, the prison sentence would be from the same sentencing range that was suspended, before. The judge can impose up to the maximum sentence available.
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, 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.