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 usually 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” or “informal probation.”
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

	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

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

1. Who can be sentenced to misdemeanor probation?

Courts typically give summary probation to first-time, low risk non-violent offenders and juvenile offenders.² Though you may be eligible for it 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.

3. Can I reject probation?

In some cases, you may prefer to serve a 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.” Instead, you go back to court every now and then to report to a judge on your progress.

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

Common conditions of summary probation include that you:

• Pay fines, court costs, and/or victim restitution¹¹
• Complete community service
• Hold down a job
• Abstain from alcohol and/or drugs and attend a substance abuse program (such as in DUI or drug crime cases)
• Submit to random drug testing
• Complete a batterer’s program of treatment (such as in domestic violence cases)

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.

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 to give the judge a “progress report.”

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, judge 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 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.