3 Possible Consequences of a Felony Probation Violation in California

After a violation of felony probation in California, there are 3 things that can happen. The judge can:

1. reinstate probation under the original terms,
2. modify the terms of probation to make them stricter, or
3. revoke probation and send you to prison to serve the rest of your sentence.

California judges at the probation violation hearing are generally given a lot of discretion in how to react to a proven violation.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 your first,
• other than the violation, you are 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 California’s criminal justice system.

What happens if the judge reinstates probation?

If the judge decides to reinstate probation, then you will likely be released from custody. You will return to your term of supervised release under the same rules as before. The judge may warn you not to break the rules, again.

This is the best outcome for you if you have been accused of violating probation, other than proving that there was no violation, at all. However, if probation is reinstated and then you break one of its rules, later on, the prior violation will be used against you.

California 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
• you are not a threat to the community.

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 you will be released back to community supervision. This time, though, the rules of your 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 California criminal defense attorney can help you secure the best possible terms for your supervised release.

What happens if probation gets revoked?

If the judge revokes probation, then you will be sent to California State Prison. You will have to spend the remainder of your suspended sentence as jail time, rather than out on supervised release. If the sentence was not suspended, then you can face up to the maximum sentence for the underlying offense.

Probation revocations are common when the violation was a serious one. If you committed a new crime, the offense will violate a term of your probation and lead to a violation hearing. Not only will you likely be sent to jail for violating probation, you will also face criminal charges for the new offense.

Example: Clark was convicted of 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. California criminal defense lawyers do all that they can to avoid this outcome.

What if no violation is proven?

If no violation is proven, then you will be released from custody and will return to your period of supervised release. This is just like a reinstatement of probation, except for 2 things:

1. you will not be warned by the judge not to commit another violation, and
2. there will not be a prior probation violation on your record, if you are accused of breaking a rule, again.

Proving that there was no violation is the best outcome possible at a California probation violation hearing.

How does the probation violation hearing process work?

If a California judge or probation officer believes that a term or condition of felony probation has been violated, a bench warrant will be issued. You 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 you on bail.

At the hearing, the prosecutor has the burden of proof to show that you violated a term of your release. Prosecutors 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:

• you did not actually violate a term of your 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 your criminal record.

Some of the most common violations in California 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. If you have violated probation, you can face a probation revocation hearing and serve the rest of your prison sentence in California 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.

Additional reading

For more in-depth information, refer to these scholarly articles:

• An Evaluation of Intensive Probation in California – Journal of Criminal Law and Criminology.
• Lost in Probation: Contrasting the Treatment of Probationary Search Agreements in California and Federal Courts – UCLA Law Review.
• Criminal Charge Or Probation Violation? Prosecutorial Discretion And Implications For Research In Criminal Court Processing – Criminology.
• Proposition 36: Ignoring Amenability and Avoiding Accountability – BYU Journal of Public Law.
• Gender and the Release from Jail: Predicting the Likelihood of a Probation Violation versus a New Offense – Corrections.

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