Misdemeanor Probation in Colorado – How It Works

Misdemeanor probation in Colorado is an alternative to jail for a person convicted and sentenced for a misdemeanor crime. The defendant is bound by certain terms and conditions of probation for a period of up to five years.

Eligibility

Most offenders are eligible to apply for probation, except those people:

• convicted of a class 1 felony;
• convicted of a civil infraction;
• convicted of two or more felonies in Colorado or any other state.

Probation Conditions

The conditions or rules of probation vary depending on what the judge assigns. It is essential to follow all conditions of probation.

Violations are taken seriously and can result in additional criminal penalties against the defendant.

In this article, our Denver criminal defense lawyers will address the following key topics regarding misdemeanor probation for Colorado residents:

• 1. Eligibility
• 2. Probation Conditions
• 3. Probation Officers
• 4. Probation Violations
• 5. Early Termination
• Additional Reading

1. Eligibility

After a person is convicted of or pleads guilty to a misdemeanor, they can apply for probation.

You are not eligible for probation if:

• You have two or more prior felony convictions arising out of separate and distinct criminal episodes under the laws of Colorado, any other state, or the United States; and
• Your current conviction or a prior conviction is for:
  • First- or second-degree murder;
  • Manslaughter;
  • First- or second-degree assault;
  • First- or second-degree kidnapping;
  • Sexual assault or sexual contact;
  • First-degree arson;
  • First- or second-degree burglary;
  • Robbery;
  • Aggravated robbery;
  • Theft from the person of another;
  • Any felony offense committed against a child; or
  • Any criminal attempt or conspiracy to commit any of the offenses set forth above.¹

2. Probation Conditions

The judge will set the conditions of probation in the case, which can vary depending on the facts of the case and the judge’s discretion.

Common conditions include, but are not limited to:

• not committing any other crimes;
• not leaving the county, state, or other territorial limitation;
• regular reporting to the probation officer;
• regular drug and alcohol testing;
• no use of non-prescription drugs, illegal drugs, alcohol, or medical marijuana;
• no ownership or possession of firearms or other weapons;
• restitution payments to any victims;
• attendance at and completion of drug counseling, anger management, or other classes;
• electronic monitoring (ankle bracelet); or
• following the terms of a protective order.²

Overall, the conditions of probation are whatever the court, in its discretion, deems reasonably necessary.

Other conditions which could be imposed include:

• attending school, college, or vocational training;
• maintaining regular employment;
• financially supporting the probationer’s family;
• paying costs of court proceedings;
• permitting the probation officer to search the defendant’s home, car, or elsewhere;
• promptly notifying the court of any changes in address or other information change; and
• abiding by a curfew.

Length of Supervision

A Colorado judge can set the length of probation as they believe is necessary to punish and rehabilitate the defendant. However,

• misdemeanor probation
• cannot last longer than
• a total of 5 years.³

The term of probation can be longer than the term of any incarceration imposed if it is imposed.

Example: Frank is convicted of a class 2 misdemeanor. He applies for and is granted a probation request. He is sentenced to 6 months in jail and 5 years of probation. Even though his probation is longer than his jail sentence, this is allowed under Colorado law.

Misdemeanor vs. Felony Probation

Here is a helpful chart comparing misdemeanor and felony probation:

3. Probation Officers

A probation officer is a government employee tasked with supervising a defendant’s probation to determine whether the defendant is complying with all of the conditions.

Regular reporting to the officer is almost always a condition set by the judge. Failure to meet with the probation officer at scheduled times can result in a violation of the terms of the supervision. It is incredibly important not to be late to or miss scheduled appointments.

Failure to report to your probation officer can result in a violation. The officer can report the non-attendance to the court, which will then be able to impose sanctions for probation violations or even revoke the probation.

4. Probation Violations

If a person violates the terms of the probation, they could be arrested on a “no-bond” warrant and taken into police custody.

The prosecutor may also file a “Motion to Revoke Probation” for violating the terms of probation. A hearing will be held to determine whether the person actually violated the conditions, and evidence will be presented about the allegations.⁴

If the judge determines that the probationer violated the conditions of supervision, he or she can:

• revoke the probation and send the offender to jail or prison on the remaining sentence; or
• the judge can continue the probation but change the terms or add additional terms and restrictions.

Unlike the actual criminal charges, where a jury is guaranteed by the Constitution, probation violation hearings are not eligible for jury trials.

The court will hear the evidence and the court will also decide what is to be done.⁵

Standard of Proof

The standard of proof in a violation hearing is not as high as the actual criminal charges, which must be proved “beyond a reasonable doubt.”⁶

Instead, violation hearings are subject to a lesser standard of proof, a “preponderance of the evidence” standard. If the judge is more convinced that the person committed the violations than that they did not, this is sufficient.

5. Early Termination

A person can apply for early termination of misdemeanor probation when certain conditions are met.

A person can be released early if:

• good cause is shown; and
• after notice to the defendant, the district attorney, and the probation officer.⁷

A hearing will likely be held to determine if the probationer has met all of the conditions and whether the court believes it is appropriate to allow for early release of the offender.

Requesting Early Termination

To receive early termination from probation, a defendant must file a motion requesting it.⁸ The motion must include:

• the defendant’s name;
• the case number;
• the defendant’s attorney;
• the defendant’s sentencing date; and
• the defendant’s expected termination date of probation.

Each court has its own form, and you can acquire the correct form from your attorney.

Reasons for Early Termination

The misdemeanor defendant is required to state a reason to justify early termination. Any of the following may be reasons to terminate early:

• the defendant has completed all conditions of probation (such as community service hours, classes, treatment);
• the defendant has paid all fines, fees, court costs, and restitution;
• the defendant has not re-offended or had any contact with law enforcement since sentencing;
• the defendant has been compliant with monitored sobriety with no missed or positive tests;
• his or her probation officer has no objection to early termination; or
• for another reason which the defendant may provide.⁹

If the defendant wishes to give another reason, he or she must describe that reason with specificity.

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.

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Legal References: