Probation is typically required by courts in place of some other punishment. Most often, a court imposes a jail or prison term, then suspends all or a portion of that term on condition of successful completion of a probation term. That means if an accused fails to successfully complete probation, the court can then simply impose the original jail or prison sentence. So how do courts decide if probation has been completed successfully? This question is almost always answered by a probation officer assigned to a case.

Probation Officer’s Discretion

The probation officer is responsible for monitoring compliance with all the various terms of probation. Terms of probation might be no new criminal charges during the probation period, completion of community service, payment of all fines and costs, not partaking in alcohol or illegal drugs, participating in monitoring programs, or participating in other programs like alcohol classes or domestic violence classes, etc. A probation officer could conclude that any one of the terms of probation has not been completed, and then usually has some discretion regarding whether to report a violation to the court. If the violation is reported, the accused has a right to a hearing in which the prosecution has the burden of proof.

Violation Hearing

The prosecution must prove that probation was violated. Generally, it is enough to put the probation officer on the stand and have them testify regarding the alleged violation. Unlike in the original criminal trial, where the burden of proof is beyond a reasonable doubt, the burden in a probation violation hearing is simply a preponderance of the evidence. In other words, the prosecution only has to persuade the judge that it’s more likely than not that a violation has occurred. So it is much easier to prove a probation violation that it is to prove the original charged crime. By the time we get to a probation violation hearing, the accused has already been convicted, or at least entered a plea of guilty. So a much lower burden of proof applies. These probation issues are often very straight forward. The probation officer simply tells the court the accused failed to show up for scheduled meetings, or failed to provide required documentation of community service, or shows the court records that the accused failed a urine drug test. Any of these may very well be enough to prove the violation at a hearing.

Reinstatement of Probation

If the prosecution is able to prove the violation, the focus of the hearing shifts to what the court is going to do about it. This phase of the case is often as important as the proof itself. This is where an experienced and passionate defense attorney can really persuade the court not to hammer the accused. Often, there are very good and understandable reasons for a person on probation to have failed to complete some requirement as scheduled. Sending an accused to jail or prison because their car broke down on the way to an appointment with the probation officer is not only harsh, it can be completely counterproductive to the court’s own goals for rehabilitation. That kind of overreaction can have impacts on the accused that are helpful to no one, and can result in unnecessary costs to the state. It is up to the defense to do everything possible to persuade the probation officer, the prosecutor, the judge, or all three, that the accused, based on the specific facts of each case, should be given another chance to successfully accomplish those requirements the court previously ordered.

If you have been accused of violating probation, call our office to discuss the facts of your case with an experienced defense attorney.