What Is Probation Violation?
We handle new-law offenses and probation violations. New-Law Offenses are those offenses that are fresh with no sentence imposed.
Probation violations are offenses that have already finished, and a sentenced has already been imposed.
If you have violated your probation you should contact us at Smith & Eulo, our criminal defense lawyers have over 20 years of combined experience successfully litigating these types of cases.
Probation Violation Explained
When you are sentenced to a crime, whether it was a negotiated plea or sentence from a judge, you will be sentenced to either jail time, prison time, or probation (community control in some instances).
Sometimes you’ll even get a split sentence, which involves you doing a combination of jail/prison and probation. If you mess up while you are on your probation you will be violated (i.e. it will be a probation violation).
A violation occurs where you willfully and substantially violate the condition(s) of your probation.
A probation violation can be as petty as not paying your cost of supervision, to as large as committing a really bad new criminal offense while on probation.
Consider some of the ways you can violate probation:
- Not Paying Cost of Supervision
- Not Paying Restitution
- Dirty Urine Test (i.e. positive for drugs)
- New Criminal Offense
- Absconding (i.e. running away from probation)
- Not Reporting (not reporting to PO’s Office)
- Not doing specific conditions as required by terms of Probation (i.e. community services hours, classes, etc.)
- Changing Address Without Telling PO
- Carrying illegal substances on you
- Disobeying specific requirements as ordered by Probation (not to hang out with known gang members, to stay out of mapping zone, to refrain from drinking alcohol, etc.)
What happens if I violate my probation?
If you violate your probation, then a warrant will be out for your arrest. For misdemeanor offenses, your assigned probation officer would have to fill out an Affidavit of Violation. For felony offenses, the Department of Corrections Violation fills out the report.
When you are arrested for violating your probation a hearing will be set in place. This hearing would determine what consequences you may face. Depending on the type of crime you are on probation for, the judge may require you to return to prison sentence and complete the years.
The VOP Warrant vs On-View Probation Violation
When a violation occurs the Probation Officer will submit a VOP warrant to the judge, the judge will sign it, and a warrant for your arrest will go out.
You do not receive credit for jail time served until warrant is actually served on you and you are in custody (relevant for those who are incarcerated in another county and have outstanding warrants).
An on-view violation occurs where a police officer or judge violate you. This is not done with the proper “warrant paperwork.”
When you see an on-view violation it’s usually where a person is arrested for a new offense, and the police officer violates them on their outstanding probation in conjunction with the new arrest.
At first glance this may seem mean or hostile by the officer but it’s actually very favorable because you immediately start getting jail credit for both cases at the same time. Whereas if there wasn’t an on-view violation, you’d be sitting in jail on one case and not getting credit on the other.
Defenses to a Probation Violation
There are countless examples of how each violation can be disproved. However, the main two arguments, at the center of every single Probation Violation are
- it didn’t happen, or
- it did happen but I wasn’t intentionally/willfully doing it.
For example, “I didn’t pay my restitution but I couldn’t afford it, I had no money”. Where there is no intentional or willful act there is no probation violation.
Probation Violation Sentencing (Penalty/Scoresheet)
When you have a felony probation violation you get 6 points automatically added to your previous scoresheet (the one where you were originally sentenced).
When you have violated previously, and this is a second or third violation, those 6 points get added on again and again depending which number of violation this is. Where you have a Probation Violation, you can expect the court to move quickly. Your options are often limited. However, a skilled lawyer will make the best out of those limited options:
- Option 1: Plea to Bench: Judge has to sentence you to Guidelines if you score, unless there was a stipulated to downward departure before during the initial sentence, or unless there is statutory mitigation that can be used to provide a reason for departure.
- Option 2: Negotiated Plea: Make a deal with the State. This is the most common where there is a probation violation.
- Option 3: Go to a hearing and fight the VOP. The burden of proof at a Probation Violation hearing is quite low (preponderance of the evidence is the standard). If you win then no consequences and you are placed back on probation. If you lose you go back to Option 1 (plea to the bench.
- Option 4: Delay the VOP and try to beat the new-law offenses. If you lose on the new-law offenses you will have 12 points added to your VOP scoresheet for every single new-law you are found guilty of. This is the homerun/strikeout approach. You can be wildly successful or you can face serious penalties. Also know that even if you go to trial on the new-law offenses and win, that doesn’t mean the State won’t go forward on the VOP hearing, trying to win on a lesser standard (that happens all the time).
New-Law Offenses as basis for Probation Violation
As stated above, every new-law felony offense that is resolved prior to probation violation being resolved will result in 12 points added to the VOP scoresheet.
Be incredibly careful where you have new-law offenses and VOPs that are all felonies and intertwined. It can be difficult and if you don’t know what you’re doing there can be serious consequences.
Probation Violation, The Anti Murder Label
A subsection of Anti Murder by itself will be found on another page on this site. You can also click here for a quick description of the act. However, for purposes of this section a brief discussion is in order.
Generally, you are anti murder if you fit under three sections:
- You are on probation for qualifying offense and you violate in anyway,
- You are on felony probation and you violate by picking up new-law qualifying offense.
- You are on felony probation, you have past anti-murder (i.e. qualifying) crimes on your record, and you violate your probation.
If you are anti murder there are several problems that arise:
- No Bond: You can’t bond out until VOP is resolved.
- Add 12 points to scoresheet: instead of tradition +6 points for VOP, you get 12 points added.
- Danger Hearing: before you are released on non-incarcerative sanctions you must go through danger hearing.
Drug Court/Residential Treatment
Where people have a probation violation and they are looking for options, Drug Court and Residential Drug Treatment are often good ways to help show the judge or the State that the person is genuine and wants/needs treatment.
Consider these options with your attorney and discuss whether they apply to your probation violation.
- Click here for a more comprehensive and detailed list of Probation Violations.
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