Penal Code § 1203.2 PC – Probation Violations in California

California Penal Code § 1203.2 PC allows for your arrest with or without a warrant when (a) you are on probation and (b) you are suspected of committing a new crime or violating any term or condition of your probation.

To put it simply, a probation violation occurs when you

1. are convicted of a crime,
2. placed on probation, and
3. then violate a specific term or condition of that probation.

The types of probation include:

• misdemeanor – or summary – probation (informal probation),
• felony probation (formal probation), and
• probation in California DUI cases.

The rules allow for the following:

• your arrest for the commission of an offense or violation of a probation condition,
• the termination of probation,
• the imposition of jail time, instead of probation, and/or
• tougher probation conditions.

All of the above are determined at a probation violation hearing. There are two important things to note about these hearings. These are:

1. your rights at the hearing (which include many of the same rights as defendants have in California criminal jury trials), and
2. the differences between a probation violation hearing and a criminal trial (for example, judge v. jury and burden of proof).

Please note that the probation conditions that you must follow will depend on the type of probation that you are subject to. For example:

• while misdemeanor or felony probation may require victim restitution,
• a California DUI probation may require you to submit to a DUI breath test or a DUI blood test if arrested on suspicion of drunk driving.

 

Our California criminal defense attorneys will address the following in this article:

• 1. Rules of Probation
• 2. Probation Violation Hearings
• 3. Conditions of Probation
  • Misdemeanor probation
  • Felony probation
  • DUI probation
• 4. Felony Probation Violations
• Additional Reading

1. Rules of Probation

The probationary rules outlined in PC 1203.2 are roughly divided into two categories. These are:

1. rules involving your arrest and the termination of probation, and
2. rules regarding the imposition of jail time or tougher probation conditions.

Arrest and termination of probation

Penal Code 1203.2a PC authorizes your arrest if there is probable cause to believe you

• committed an offense or
• violated any term or condition of your probation.¹

We have seen arrests take place with or without a warrant, depending on the specific circumstances of a case.² Further, the arrest may be initiated by a:

• probation officer from the probation department,
• parole officer, or
• police officer.³

Once you are arrested and brought before the court, the judge may do one of two things:

1. release you from custody, or
2. revoke and terminate your probation.⁴

Imposition of jail time or tougher probation conditions

Under Penal Code 1203.2(c), if probation is revoked and terminated, and your sentence has been suspended, the court can order you to serve out the suspended sentence (for example, place you in jail or prison).⁵

Note that in lieu of a sentence, the court may order you to:

• the Department of Corrections and Rehabilitation, or
• the Division of Juvenile Facilities.⁶

Also note that we have had great success in persuading judges to keep our clients on probation despite having committed a violation of their terms. Instead of revoking probation, judges may instead impose tougher probation conditions.⁷

2. Probation Violation Hearings

A probation violation hearing takes place when you are brought before the court for either:

• committing a new offense, or
• violating a condition of your probation.

During the hearing, some of the following will be decided:

• whether you are released from custody or remain in custody, and
• whether your probation is terminated or revoked, and if so:
  1. whether you will serve a jail sentence or prison sentence, or
  2. whether you are placed back on probation with tougher conditions.⁸

There are two important things to note about these hearings. These are:

1. your rights at the hearing, and
2. the difference between a probation violation hearing and a criminal trial.

Probationer’s rights

In a California probation violation hearing, you enjoy many of the same rights as defendants in California criminal jury trials. These rights include:

• the right to be represented by a criminal defense attorney,⁹
• the right to call witnesses, and to use the subpoena power of the court to force witnesses to come to court and testify on your behalf,
• the right to present any mitigating or extenuating circumstances that may have contributed to your alleged probation violation,
• the right for you to testify on your own behalf, and
• the right to disclosure of the evidence against you.¹⁰

The difference between a probation violation and a criminal trial

There are two main differences between a probation violation hearing and a criminal trial.

The first is that a judge presides over the hearing, while a jury presides over the trial.¹¹

Second, unlike a criminal trial where the prosecutor must prove the case “beyond a reasonable doubt,” the prosecutor in a probation revocation hearing only needs to prove by a “preponderance of the evidence” that you violated probation.¹²

This means that the prosecution only needs to prove that it is “more likely than not” that you are guilty.¹³ Since the bar for the D.A. is so low, we prepare for probation violation hearings just as diligently as we do for criminal trials.

3. Conditions of Probation

The probation conditions that you must follow will depend on the type of probation that you are subject to, or the court imposes. Three possible types of probation include:

• misdemeanor (or summary) probation,
• felony (or formal) probation, and
• DUI probation.

Common misdemeanor probation conditions

Misdemeanor probation conditions must always be:

1. “fitting and proper to the end that justice may be done,”¹⁴ and
2. reasonable and logically related to the offense.¹⁵

The most common conditions in misdemeanor probation we see include that you:

• pay fines and/or victim restitution,
• participate in individual or group therapy,
• complete community service or Caltrans roadside work,
• seek gainful employment, and
• be subject to a restraining order (for offenses involving California domestic violence crimes).

Violation of any of these terms or conditions can result in the court finding a misdemeanor probation violation.

Common felony probation conditions

Felony probation often includes conditions like the following:

• meetings with your probation officer as often as required, generally once a month,
• payment of restitution,
• participation in individual or group therapy,
• completing a treatment program,
• submission to drug testing (such as urine drug tests), in cases of certain drug crimes in California,
• performance of community service or community labor,
• agreement to submit to peace officer searches of your person or property with or without a warrant (referred to as “search conditions”), and
• compliance with stay-away orders not to harass victims, in cases of felony violations of California Penal Code 273.5 pc corporal injury on a spouse and other offenses.

Common DUI probation conditions

California law imposes certain conditions whenever you are sentenced to DUI probation. Some of these depend on whether it is your first-time DUI, second DUI, third, or subsequent “wet reckless” conviction.

Some conditions, though, common to most DUI probations include that you:

• not commit any additional offenses while on probation,
• agree to submit to a DUI breath test or a DUI blood test if arrested on suspicion of drunk driving, and
• refrain from driving with any measurable BAC (this is California’s “zero tolerance” law for people on DUI probation).

4. Felony Probation Violations

If you are on felony probation and are accused of violating your terms, you will have a probation violation hearing. If you lose the hearing, the judge can impose one of three consequences for a felony probation violation. The court can either:

1. give you a warning and reinstate the same terms,
2. modify the terms to include harsher conditions, or
3. revoke probation completely and remand you to prison.

Obviously, our goal is to show the judge that you committed no violation or – if you did – to persuade the judge to give you a second chance and keep you on probation. Judges are often forgiving as long as you have been otherwise compliant.

Additional reading

For more in-depth information, refer to these scholarly articles:

• An Evaluation of Intensive Probation in California – Journal of Criminal Law and Criminology.
• Lost in Probation: Contrasting the Treatment of Probationary Search Agreements in California and Federal Courts – UCLA Law Review.
• Criminal Charge Or Probation Violation? Prosecutorial Discretion And Implications For Research In Criminal Court Processing – Criminology.
• Proposition 36: Ignoring Amenability and Avoiding Accountability – BYU Journal of Public Law.
• Gender and the Release from Jail: Predicting the Likelihood of a Probation Violation versus a New Offense – Corrections.

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