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What Happens When You Violate Probation for a Misdemeanor?
When you violate probation in a misdemeanor case, the court has wide discretion as to what consequences to impose. The judge could let you off with just a warning. The judge could also rachet up your terms of probation, or even revoke probation altogether and send you to jail.
As to the last two results, a judge generally must hold a probation violation hearing prior to modifying or revoking your probation. If during this hearing the judge finds that you did in fact violate your probation, he/she may:
reinstate your probation,
modify the terms of your probation, or
revoke your probation and place you in county jail.
A violation of misdemeanor probation is anything that breaks the terms of your probation, as set out by the sentencing judge after a misdemeanor conviction. Common violations include:
Note that misdemeanor probation is sometimes referred to as
summary probation or
1. Will a probation violation result in a warning?
Possibly, yes. A judge or probation officer could issue a warning for the violation of your probation. This is typically the case if the violation is:
the first time you violated your misdemeanor probation, or
for something minor (for example, like forgetting to attend a meeting with your probation officer).
If a warning is issued, a note of it usually goes into your probation file. If you then commit a subsequent violation, your penalties will likely increase.
2. What about counseling?
You could have to attend counseling or a treatment program for the violation of probation.
This might be the case if your violation involved the failure of a drug or alcohol test.
Counseling or rehab could also be imposed if you violated one of the terms or conditions of your probation by committing a crime involving:
drugs (as in possession of marijuana),
alcohol (as in DUI), or
anger (as in assault or battery).
If the latter, you could have to attend anger management classes.
3. Will a judge modify or revoke your probation?
Possibly. If the violation of your probation was relatively serious (as in possibly committing a new crime) a judge could decide to modify your conditions of probation.1 This typically means that a judge will impose additional conditions or make your terms and conditions more severe.
A judge can also decide to revoke your probation.2 If this takes place, the judge usually orders you to serve any suspended sentence in the form of jail time/a jail sentence.
4. Will a judge hold a probation violation hearing?
If you violate a term of your probation, a judge may hold a probation violation hearing to determine if you did, in fact, violate a condition of probation.3 A probation violation hearing is sometimes referred to as a “probation revocation hearing.”
During this hearing, a prosecutor has the burden of showing, by a preponderance of the evidence, that you violated a probation term.4 If a prosecutor shows that you violated probation, most jurisdictions say that a judge may:
reinstate your probation on the same terms and conditions that were in effect prior to the violation,
modify the conditions of your probation with new, stricter terms, or
revoke the probation and make you complete a jail sentence.5
5. Will the court issue an arrest warrant?
The court can issue a bench warrant for violating a term during the probation period.
Once issued, a bench warrant gives police officers the authority to:
arrest you, and
bring you to court.
Note that a bench warrant generally does not expire. It remains in effect until recalled by the judge.
6. Can a criminal defense lawyer help?
Yes. You have the right to be represented by a criminal defense lawyer or probation violation attorney at these hearings.
It is generally advisable to seek representation by a criminal defense attorney because your lawyer can help you by:
showing that you did not violate a probation term,
minimizing your punishment if a violation is found (for example, by showing that you have a relatively clean criminal history), and
avoiding further criminal charges.
Note that most law firms and defense attorneys provide free consultations, which means you can get legal advice at no cost.
Also, your communications with a lawyer are protected by the attorney-client relationship. This means your attorney cannot disclose your confidences without first gaining your consent.
See, for example, California Penal Code 1203.2 PC.
Note that a “preponderance of the evidence” standard is a lower burden of proof to meet than a “beyond a reasonable doubt” standard that applies in criminal cases involving jury trials.
See, for example, Arizona Rules of Criminal Procedure 27.8(c).
About the Author
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.