California Probation Laws – How The System Works

Probation is a sentencing alternative to incarceration following a criminal conviction in California. It allows you to remain out of custody as long as you follow court-ordered “probation terms.”

Five key things to know about California probation laws are:

1. Most first-time, non-violent offenders are eligible to serve their sentence on probation in place of incarceration.
2. Misdemeanor probation is less intensive and shorter than felony probation.
3. You can ask the court to release you from probation early, usually after several months of perfect compliance.
4. If you allegedly violate probation, you are entitled to a hearing to argue for your innocence.
5. You should be eligible for a record expungement once your probation period ends.

	Misdemeanor Probation	Felony Probation
Length	Up to 2 years	Up to 5 years
Supervision Level	Unsupervised	Supervised (by probation officer)
Violation consequences	Depends on sentencing terms and judge’s discretion	Depends on sentencing terms and judge’s discretion
Travel Restrictions	Usually no restrictions	Usually have to get permission from probation officer
Possibility of expungement upon completion	Yes	Yes

In this article, our California criminal defense attorneys answer these faqs:

• 1. What is probation?
• 2. How do I get probation in California?
• 3. Can I travel while on probation?
• 4. Can I get off probation early?
• 5. What happens if I violate probation in California?
• 6. When can I get an expungement?
• Helpful links
• Additional reading

1. What is probation?

Probation is a sentencing alternative to jail or prison after a criminal conviction in California. It permits you to stay out of custody if you follow court-ordered “probation terms”, which commonly include:

• paying all fines/restitution/court fees and performing community service;
• abiding by existing restraining orders and avoiding run-ins with law enforcement;
• completing evidence-based counseling/treatment/rehabilitation programs for alcoholism, drug addiction, domestic violence, etc.;
• maintaining employment and/or staying in school;
• submitting to drug tests, alcohol tests, and/or STD/HIV testing; and/or
• any other conditions of probation the court orders for your particular criminal case, such as using an ignition interlock device in DUI cases.

1.1. Types of probation

There are two types of adult probation:

1. Felony probation (also called formal probation); and
2. Misdemeanor probation (also called summary probation or informal probation).

Felony probation is more intensive than misdemeanor probation. For example:

• felony probation typically lasts two years while misdemeanor probation is typically over within one year;
• for felony probation you are assigned a deputy probation officer (P.O.) you have to regularly check in with, whereas for misdemeanor probation you simply check in with the judge at scheduled court appearances (in most cases);
• in certain felony cases, the judge may require you to wear an electronic monitoring anklet while you are out on probation, which rarely happens in misdemeanor cases.¹

2. How do I get probation in California?

Probation is the standard sentence for most misdemeanors such as DUI and drug possession as long as you

• do not have an extensive criminal history and
• pose no public safety risks.

If prosecutors refuse to agree to probation as part of a plea bargain, your criminal defense attorney can always ask the judge at your sentencing hearing to grant you probation. You can even introduce character witnesses and other evidence to sway the judge’s decision about your eligibility.

Note that if your case is for a felony offense or a misdemeanor sex crime, the county probation department will draw up a detailed report about you to help the judge make their determination.²

3. Can I travel while on probation?

If you are on felony probation in California, you always have to get the probation department’s permission to travel between states. If you are on misdemeanor probation, you only need permission if:

• Your sentence includes at least one year of supervision, and
• The crime involved:
  • Actual or threatened physical or psychological harm;
  • Use or possession of a firearm;
  • A second or subsequent DUI; or
  • A registrable sex crime.

It can take weeks to get permission to travel, especially since the state you are traveling to needs to give permission as well. Therefore, contact your probation officer as early as possible before your intended trip.³

4. Can I get off probation early?

You can always ask the court to terminate your probation earlier than scheduled. Factors the judge will consider include:

5. What happens if I violate probation in California?

If the court learns that you may have violated a probation condition, it may issue a warrant for your arrest or a summons for you to appear in court. Either way, you are entitled to a probation violation hearing (PVH), where the court determines:

• whether you did violate probation, and
• if so, whether to revoke your probation.

5.1. Probation violation hearings

Probation violation hearings (PVHs) are like mini-trials in that both you and the prosecutors get to admit evidence, make arguments, and call witnesses. However, PVHs are more difficult for you to win.

During a criminal trial, prosecutors bear the burden to prove your guilt beyond a reasonable doubt – which is a very high bar. In PVHs, prosecutors only have to show that you violated probation by a preponderance of the evidence – which is a much lower bar.

In short, the D.A. only has to show that it is more likely than not that you violated probation for the judge to find that you committed a probation violation.⁵

5.2. Consequences of violating probation

If the judge finds at the PVH that you did indeed violate a term of your probation, they have two choices:

1. give you a second chance by letting you remain on probation (sometimes with harsher terms than before); or
2. revoke your probation, un-suspend your original county jail or state prison sentence, and remand you into custody.

When deciding what to do, the judge will take into account such factors as whether this is only your first violation and what the probation department recommends.⁶

6. When can I get an expungement?

If you are on misdemeanor probation and successfully complete it, you should be able to petition your superior court for a criminal record expungement right away. Meanwhile if you successfully complete felony probation, you cannot petition for a record expungement until you ask the court to reduce your felony to a misdemeanor.

Once you file the expungement paperwork, the court typically takes five months to respond. However, if the court terminated your probation early, the judge can usually grant an expungement at the same time as long as you filed the proper expungement paperwork.

Once your case gets expunged, you generally never have to disclose it to potential employers on job applications or during job interviews.⁷

Arrested on criminal charges? Contact our criminal defense law firm for legal advice and advocacy. We defend against all types of cases from violent felonies and white-collar crimes to drunk driving and theft offenses.

Our criminal justice/juvenile justice system attorneys have law offices throughout the state of California, including Los Angeles, Ventura, San Bernardino, and more. Plus we manage every part of criminal cases from bail hearings and the arraignment through pretrial and trial and finally sentencing and probation. 

Helpful Links

• California Community Corrections Partnership
• Chief Probation Officers of California – Press Releases
• Reentry Services – Division of Adult Institutions (DAI)
• Voting Rights: Persons with a Criminal History, California Secretary State
• California Department of Public Health and Human Services
• Los Angeles Probation Board of Supervisors

Additional resources

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

• Legal and Extralegal Factors Associated with Success on Misdemeanor Probation – Open Journal of Social Sciences.
• Fugitives from Justice: An Examination of Felony and Misdemeanor Probation Absconders in a Large Jurisdiction – Federal Probation.
• New Directions in Misdemeanor Probation – Judicature.
• Felony probation: A re-examination of public risk – American Journal of Criminal Justice.
• Probation and Felony Offenders – Federal Probation.