Misdemeanor probation in Colorado is an alternative to jail or prison. A person is eligible to apply for probation after a conviction or guilty plea to a criminal offense.
Eligibility for Misdemeanor Probation
Most offenders are eligible to apply for probation, except those people:
- convicted of a class 1 felony;
- convicted of a class 2 petty offense;
- convicted of two or more felonies in Colorado or any other state.
The conditions or rules of probation vary depending on what the judge assigns. It is important to follow all conditions of probation.
Violations are taken seriously and can result in additional criminal penalties against the defendant.
Below, our Colorado criminal defense lawyers discuss the following frequently asked questions about misdemeanor probation for Colorado residents:
- 1. Who is eligible for misdemeanor probation in Colorado?
- 2. What are common conditions of my misdemeanor probation?
- 3. Do I have to report to a probation officer in Colorado?
- 4. What happens if I violate the conditions of my supervision?
- 4.1 Is there a right to trial by jury for violation hearings?
- 4.2 What is the standard of proof in a violation hearing?
- 5. Can I get early termination of my misdemeanor probation?
After a person is convicted of or pleads guilty to a misdemeanor, he or she 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;
- First- or second-degree assault;
- First- or second-degree kidnapping;
- Sexual assault or sexual contact;
- First-degree arson;
- First- or second-degree burglary;
- 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
The conditions of probation will be set by the judge in the case and can vary depending on the facts of the case and the judge's choices.
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.
A Colorado judge can set the length of probation as it believes 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 3 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.
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.
If a person violates the terms of the probation, you 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.
No. 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
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 convinced that the person committed the violations more than he or she is convinced that the violations were not committed, this is enough.
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.
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.
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 (i.e. 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.
Call us for help...
For questions about misdemeanor probation or felony probation or to confidentially discuss your case with one of our skilled Colorado criminal defense attorneys, do not hesitate to contact us.
We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities.
- CRS 18-1.3-201 (Application for probation).
- CRS 18-1.3-204 (Conditions of probation--interstate compact probation transfer cash fund--creation).
- CRS 18-1.3-202 (Probationary power of court).
- CRS 16-11-206 (Revocation Hearing).
- CRS 16-11-206(1).
- Colorado Model Jury Instructions - Criminal (2017) E:03 Presumption of Innocence, burden of proof, and reasonable doubt.
- CRS 18-1.3-204(4)(a). (Conditions of probation--interstate compact probation transfer cash fund--creation).
- Motion for Early Termination of Probation. Colorado Judicial Department. (Sample form from Jefferson County).
- Same as 7.