A probation violation hearing is a legal proceeding in which a criminal court judge determines whether or not defendants are in violation of the terms and conditions of their probation. This can occur for defendants serving either misdemeanor probation or felony probation.
This hearing is also known as a “probation revocation hearing.”
An example of a violation that may trigger a hearing includes failure to pay a fine. The failure to appear for a court date is a further example.
Note that there are special evidentiary rules at probation violation hearings (PVH). Some of these are:
- there is a lower standard of proof for showing guilt (in comparison to criminal trials), and
- hearsay evidence is admissible.
If a party is found in violation of probation, then the judge may:
- reinstate the probation on the same terms and conditions,
- modify the conditions of probation with new, stricter terms, or
- revoke the probation and place the person in custody.
If the latter, then the judge can order the person to serve up to the maximum sentence for the crime of which s/he was convicted.
Note that a defendant can use various strategies to beat an accusation of violating probation. A few of these are:
- get help from an experienced criminal defense attorney,
- gather facts and evidence that show that he/she is not in violation, and
- present mitigating evidence to lessen any punishment if a violation did take place.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is a probation violation hearing?
- 2. How does a probation violation hearing get initiated?
- 3. Will the court issue an arrest warrant for a probation violation?
- 4. Can a person bail out of jail while awaiting a probation violation hearing?
- 5. Are there special rules of evidence?
- 6. What happens if the court finds a person in violation?
- 7. What are the best strategies to win a probation violation hearing?
1. What is a probation violation hearing?
A probation violation hearing is a legal proceeding that probationers must attend if they violate their terms of probation.1 The hearing is held before a judge.
These probation hearings are held for of both:
- misdemeanor (or summary) probation violations, and
- felony (or formal) probation violations.
A judge can impose misdemeanor probation for a misdemeanor offense. This is awarded in lieu of a jail sentence. The term for this type of probation may last up to five years.2
A judge can impose felony probation for felony offenses. This is awarded in lieu of jail or prison time. The term for this type of probation is generally between three to five years.3
Note that there are some common violations that will trigger a hearing. Some include:
- willful failure to pay a fine or restitution,
- failure to appear for a court date,
- commission of a new crime, and
- failure to submit to a drug test.
If a person violates a condition, then:
- a probation officer (PO) or a police officer can arrest that person, and
- bring him/her to a hearing.
In addition, a judge may issue a bench warrant for the person’s arrest.
Example: Sophia is convicted of shoplifting. A judge does not impose jail time, but rather puts Sophia on a probationary sentence and orders her to repay the store for the stolen goods.
Sophia soon falls behind on her scheduled payments. Her PO tracks her down and brings her back in front of the judge at a hearing. While the judge could put Sophia in jail, he decides against it. He alters her conditions to help her pay the store back.
2. How does a probation violation hearing get initiated?
Depending on the circumstances, a PVH can be initiated by the probation officer, the prosecutor or the judge. One of these parties calls for the hearing after learning the defendant may have violated the terms.
Probationary sentences in every state comes with certain conditions attached. These may include:
- paying victim restitution,
- community service,
- seeking and maintaining gainful employment, and
- reporting regularly to a probation officer.
When a defendant violates any of these conditions, then he/she:
- may be arrested, and
- brought before a judge at a PVH.
3. Will the court issue an arrest warrant for a probation violation?
The court will generally issue a bench warrant for violating probationary terms. Bench warrants get their name because they are issued from the “bench,” which means “the judge.”
Bench warrants are not the same things as arrest warrants. Arrest warrants are issued because of suspected criminal activity. Bench warrants get issued for such things like:
- a probation violation,
- failure to appear for a court date, and
- failing to obey a court order.
Once issued, a bench warrant gives police the authority to:
- arrest the person named in warrant, and
- bring that person to court.
Note that a bench warrant generally does not expire. It remains in effect until recalled by the judge.
4. Can a person bail out of jail while awaiting a probation violation hearing?
A person may or may not be able to bail out of jail after violating probationary terms. Sometimes the judge will issue a “no bail hold.” Other times the judge may set bail. Still other times the judge may release the person just on a promise to return to court for the hearing.
In most states, bail is allowed if:
- the alleged violation is less serious in nature, or
- the defendant is in compliance with most of his or her other terms and conditions.
In most other cases, though, bail will likely be denied.
5. Are there special rules of evidence?
There are special evidentiary rules at PVHs.
In criminal trials, the standard of proof is beyond a reasonable doubt. This means a prosecutor must present evidence to prove that a defendant is:
- guilty, and
- this guilt is beyond all reasonable doubt.
But at a hearing, the prosecutor only has to show that:
- by a preponderance of the evidence,
- the defendant violated the terms.4
This is a lower burden of proof than what criminal charges require. This means that the prosecution only needs to prove that:
- the defendant violated a probationary condition, and
- it is “more likely than not” that he/she did so.
In addition, hearsay evidence is generally admissible at PVHs. This is not true with a criminal trial.
The legal definition of hearsay is a statement that:
- was made other than by a witness testifying at the trial, and
- is offered to prove the truth of the content of the statement.5
Example: John is testifying at a murder trial. He tells the jury that his sister, Debbie, told him that the defendant committed the crime.
Here, this statement is hearsay. The statement was made by Debbie and not John, the person testifying. In addition, the statement is being used to prove the truth of its content – that the defendant confessed to the crime.
Note, though, that like a criminal trial, a defendant at these hearings has the following rights:
- the right to be represented by an attorney,
- the right to call witnesses, and
- the right to testify on his/her own behalf.
6. What happens if the court finds a person in violation?
At the conclusion of a hearing:
- the judge makes a finding as to,
- whether or not the defendant violated any terms of his/her probationary sentence.
If a defendant did not violate the terms, then nothing happens. The defendant stays on probation and the conditions remain the same as before the hearing.
If a judge says a defendant did violate the terms, then the judge may:
- reinstate the defendant’s probationary sentence on the same terms and conditions (which is more usual for a first time violation),
- modify the defendant’s probationary terms so that they are stricter, or
- revoke the probationary sentence and order the defendant to serve his/her jail or prison sentence.6
Note that if jail or prison is imposed, the sentence is the term that was originally suspended.
Example: Marcos is convicted of trespassing. In most states, the crime is punishable by six months in county jail. The judge orders Marcos to four months in jail. However, he suspends it with a condition that he remain employed for a year. Marcos quits his job after a couple of months and doesn’t look for a new one.
The judge issues a warrant for Marcos’s arrest. The police arrest him and bring him to court for a PVH. The judge revokes Marcos’s probationary sentence and orders him to do four months in jail, or the time the judge originally imposed but suspended.
7. What are the best strategies to win a probation violation hearing?
Criminal defense lawyers use number of strategies to prevail at a PVH. A few of these are to:
- gather facts and evidence that show that the defendant did not violate any terms,
- present mitigating evidence to lessen any punishment, and
- ask for time served if any jail time is imposed.
As to the last strategy, note that if a judge imposes a jail or prison sentence:
- the defendant is entitled to credit,
- for any time previously spent in jail/prison for the criminal offense.