Misdemeanor (Summary & Informal) Probation

Misdemeanor probation is an alternative to jail for most California defendants facing low-level, non-violent charges, especially for first-time offenders. It often lasts for one year (12 months), though it can go up to two years (24 months).

Five key things to know about misdemeanor probation are:

1. Misdemeanor probation is typically unsupervised, and you do not have a designated probation officer.
2. If you fail to comply with any term of your probation, the judge can revoke it and remand you to jail.
3. Misdemeanor probation is also called “summary probation,” “informal probation,” “inactive probation,” or a “conditional sentence.”
4. It may be possible to get an early termination of probation.
5. Misdemeanor probation is much less restrictive than formal probation in felony cases.¹

Here at Shouse Law Group, we have represented literally thousands of people who avoided jail and often got their cases dismissed through misdemeanor probation. Even if you have had past brushes with the law, you still could be eligible for probation.

Below our criminal defense lawyers discuss the following:

• 1. Who can be sentenced to misdemeanor probation?
• 2. How do I get probation instead of jail time?
• 3. Can I reject probation?
• 4. How is misdemeanor probation different than felony probation?
• 5. What are the terms and conditions?
• 6. Do I have to go back to court for progress reports?
• 7. Can a probation order be modified?
• 8. Is it possible to get an early termination of probation?
• 9. Can I travel while on misdemeanor probation?
• 10. How will my employment prospects be affected?
• 11. What happens if I get a misdemeanor probation violation?
• 12. Can I get a criminal record expungement?
• 13. What are the misdemeanor penalties?
• Additional resources

Most misdemeanants can receive summary probation as part of the criminal case process.

1. Who can be sentenced to misdemeanor probation?

Courts typically give summary probation to first-time, low risk non-violent offenders and juvenile offenders who pose no danger to the community and are not flight risks.²

In our experience however, you may be eligible for misdemeanor probation even if you have prior convictions.³ It all depends on the judge’s assessment of what you will do with a second (or subsequent) chance.⁴

2. How do I get probation instead of jail time?

In the vast majority of cases we handle, we can persuade prosecutors to agree to probation as part of a plea bargain. In other situations, we can persuade the judge to grant probation during sentencing.

While informal probation often includes no jail time, this is not guaranteed. Though if a sentence of probation includes jail time, it will be for a shorter period than the maximum.

Many probation sentences include a suspended jail sentence of six months to 364 days. This means that as long as you abide by all your terms of probation, you will not have to serve any jail. Though if you do violate probation, the judge can un-suspend the sentence and remand you into custody to serve out the sentence.

Random drug testing is a standard probation term in some criminal cases.

3. Can I reject probation?

In some cases, we have had clients who preferred to serve a short jail sentence and get it over with rather than have to comply with probation conditions for several months.

A judge will not force alternative sentencing on you if you do not want it.⁶

4. How is misdemeanor probation different than felony probation?

Unlike in felony cases, judges in most misdemeanor cases do not request a “probation report” from the county probation department.⁷ An exception is misdemeanor cases involving sex crimes in California.⁸

Another difference is that there is no “misdemeanor probation officer” and therefore no reporting requirements. Whereas with formal probation, you must check in with your probation officer in person or through a police station kiosk once a month or so.

Because there is no misdemeanor probation officer, you do not have to pay probation officer fees. Whereas with formal probation, you are on the hook for probation fees.

Also, if you violate misdemeanor probation, you may be remanded to county jail. Though if you violate felony probation, you may be remanded to state prison.

5. What are the terms and conditions?

California misdemeanor probation conditions must always be:

• “Fitting and proper to the end that justice may be done,”⁹ and
• Reasonable and logically related to the offense.¹⁰

Ten common conditions of summary probation include that you:

1. Pay fines, booking fees, court costs, and victim restitution¹¹
2. Abide by restraining orders and SAOs (stay away orders) such as in domestic violence, shoplifting, trespass, and vandalism cases
3. Donate $500 to a battered women’s shelter in domestic violence cases or donate money to SPCA (Society for the Prevention of Cruelty to Animals) in animal abuse cases
4. Complete community service (such as Cal-Trans roadside cleanup)
5. Hold down a job
6. Surrender all firearms
7. Abstain from alcohol and/or drugs, attend AA (Alcoholics Anonymous) and/or NA (Narcotics Anonymous), complete rehab, submit to random drunk testing, and/or complete an alcohol awareness class (such as SB38 or AB541, AB762, AB1353 classes)
8. Complete a HAM (Hospital and Morgue) class and a MADD (Mothers Against Drunk Driving) Victim Impact Panel in DUI cases
9. Install an ignition interlock device (IID) in DUI cases
10. Complete a batterer’s program of treatment in domestic violence cases or complete other types of classes such as for anger management, animal cruelty, sexual addiction, and/or shoplifting prevention

In some cases, you may have to serve house arrest (a.k.a. home confinement) for a period of weeks or months. In these cases, you may be fitted with an electronic-monitoring ankle-bracelet so that law enforcement can keep track of your location.

California misdemeanor probation conditions often include counseling.

6. Do I have to go back to court for progress reports?

If you are on misdemeanor probation, you may be required to return to court periodically for a “progress hearing.”

Failure to appear (“FTA”) as scheduled is a violation of probation. It will result in the judge issuing a bench warrant for your arrest.¹²

In certain cases, we can appear in court on your behalf so you do not have to show up yourself. Though in other cases, the judge may request that you be there in person.

7. Can a probation order be modified?

The judge has the discretion to modify the terms of your probation. Such modification can be initiated by

1. the judge,
2. you, or
3. the prosecutor.

A modification is not always in your favor. For instance, in response to a probation violation the judge might:

• Extend the period of alternative sentencing, or
• Increase the period you must spend in jail.¹³

In our experience, judges are more likely to lessen the conditions of your probation if we can show that you have been compliant for a significant period of time (usually half your probationary term) or that continuing the terms as they are would be a hardship for you.

8. Is it possible to get an early termination of probation?

California law allows judges to terminate misdemeanor probation early. The judge usually does this when you complete the terms of probation ahead of schedule and without any violations.¹⁴

We have a long track record of getting our clients off probation months earlier than they were scheduled to. Judges are more likely to grant early termination if you have been fully compliant and cooperative.

9. Can I travel while on misdemeanor probation?

You generally face no restrictions on travel while on misdemeanor probation. This is one significant way in which misdemeanor and felony alternative sentences differ.¹⁵

10. How will my employment prospects be affected?

California law prohibits potential employers from asking about arrests for criminal offenses that do not result in a conviction.¹⁶

If you are on probation, it means you were convicted. Thus an employer may legally ask about – and you must legally disclose – an adult court conviction that resulted in alternative sentencing.¹⁷

Once your alternative sentencing ends, you can file a petition to get your California misdemeanor conviction expunged. Once the court grants an expungement, you no longer need to disclose it to most potential employers.

11. What happens if I get a misdemeanor probation violation?

If you fail to comply with the conditions of your misdemeanor probation, the court will hold a probation revocation hearing where you will have the opportunity to deny or explain the misdemeanor probation violation. Then if the judge finds by a preponderance of the evidence that probation was violated, they can

• revoke and reinstate probation on the same terms,
• modify the terms, or
• revoke probation entirely and order you to jail.¹⁸

If the court sends you to jail, the sentence can be for up to the maximum punishment for the original crime. There may also be an additional sentence if the informal probation violation involved a new crime.

Note that if you fail to attend the probation hearing, the judge will immediately revoke the alternative sentencing and send you to jail.

Probation violation hearings are more difficult for defendants to win than criminal trials because the prosecutors have a much lower burden of proof to meet. Though when we defend clients who are found to be in violation of their probation, we can often persuade the judge to reinstate probation anyway and provide a second chance to finish without having to go to jail.

12. Can I get a criminal record expungement?

After successful completion of probation, you may be able to petition the California court for an expungement of your criminal record.

An expunged conviction should not appear on a criminal records background check conducted by any private record search firm.¹⁹ Plus you do not have to disclose an expunged conviction to most private employers.

13. What are the misdemeanor penalties?

In California, standard misdemeanors carry up to six months in jail and/or up to $1,000. Gross or aggravated misdemeanors carry up to 364 days in jail and/or up to $1,000. ²⁰

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.
• Misdemeanor Prosecution – The Quarterly Journal of Economics.
• Informed Misdemeanor Sentencing – Hofstra Law Review.