When you are facing a legal violation of any kind in California, you can face either a felony or misdemeanor charges. If you are found guilty of the offense, the judge will sentence you to some penalties, with one of them being serving either a formal or informal probation time. Probation is typically issued instead of or in addition to other penalties. Every probation sentence comes with a set of conditions that one must adhere to. If you fail to adhere to these conditions, the court under PEN 1203.3 has the mandate to change, revoke, or modify the sentence issued. This is typically done after going through a probation revocation trial where a new sentence may be issued. Violation of your probation terms can lead to various consequences if found guilty of the offense. Due to this, you will need the services of an attorney to assist you in your defense. At Leah Legal in Los Angeles, we will defend you passionately to ensure a favorable outcome.
Understanding Probation and its Conditions
When found guilty of a crime, the judge typically sentences them to penalties according to the law violated. In most cases, there is usually an option of probation, which is issued by the judge after reviewing the facts of the case and determining whether it is a suitable penalty. There are two types of probation: felony or informal probation and summary or misdemeanor probation. As the name suggests, a person facing felony charges can receive a felony or formal probation. Misdemeanor or summary probation is can also be issued to individuals convicted of misdemeanor offenses.
When a person is sentenced to probation, they will either have their jail sentences shortened or remain out of jail. According to the courts, probation is aimed at rehabilitating the offenders instead of punishing them for the crime committed. A judge after reviewing a case will decide if the person will benefit more from rehabilitation or jail time, and make their ruling.
Probation, however, carries various conditions that must be adhered to. According to PEN 1203, judges are given the discretion to come up with the conditions or terms of probation. The only requirement, however, is for the conditions to relate to the crime a person is convicted of reasonably. This means that the judge decides on which conditions fit the offense and imposes them upon the defendant. A few of the common probation conditions are:
- The defendant may be ordered to mandatory payment of restitution to the victim
- In some cases like those on domestic violence, a defendant may be ordered to stay away from the victim and never get in touch with them
- A DUI conviction may have the defendant being ordered to abstain from drugs or alcohol or both. In doing so, the defendant may be required to attend a program for alcohol or drug addiction, such as narcotics anonymous or alcoholics anonymous.
- The defendant may be ordered to never operate a vehicle with any detectable alcohol in their system. Additionally, when they are pulled over for suspected intoxicated driving, they must submit to chemical testing to determine their BAC levels.
- A defendant found guilty on a DUI offense may be ordered to install an ignition interlock device in their vehicle for them to keep driving.
- The defendant may be ordered to permit personal or property searches by the police at any given time and that a warrant will not be necessary for the search.
- The defendant may be ordered to attend therapy individually or be part of a group
- The defendant may be ordered to Cal-Trans roadside works or community service
- The defendant may be required to maintain gainful employment
- If the defendant is found guilty on certain crimes such as sex crimes, they may be required to be monitored electronically
- A defendant is also ordered against violating any other laws while on probation.
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When a person is facing misdemeanor charges, the probation they would receive upon conviction would be that of summary, informal, or misdemeanor. The probation period will, however, not exceed five years. Some of the primary features of summary probation include:
In a misdemeanor case, a judge can decide between:
- Asking to be given a probation report that helps them decide whether to issue probation or not or
- Deciding to issue probation without the need for a report.
The law only expects a judge to get a report on probation prior to sentencing the defendant to misdemeanor probation if the defendant has a prior sex crime conviction. Additionally, the offense required them to register as sex offenders.
Progress Reports as Opposed to Probation Officer
When one is sentenced to misdemeanor probation, they do not need to have a probation officer they report to. However, the defendant will be expected to appear in court for a progress report periodically. During the progress reports, your case will be reviewed by the judge to ensure you are adhering to all the conditions of your probation. In case you are found not to be adhering to the requirements, you may be asked to present yourself for a hearing to discuss your probation revocation.
A defendant facing felony charges when found guilty can be sentenced to formal or felony probation. Usually, the probation period may last between three and five years. Felony probation differs from summary probation on two aspects:
In issuing misdemeanor probation, the judge is given an option to have or not to have a probation report prior to sentencing. However, before issuing formal probation, a judge must request to have a report on prior probation for the defendant.
The county probation department is the one that prepares all probation reports. These reports are upon reviewing the criminal history of the defendant and the alleged crimes they may have committed. In many cases, the detective that investigated the alleged crime, witnesses, the victim, and defendant are interviewed before writing the report.
Supervision by a Probation officer
A defendant sentenced to felony probation must have a probation officer assigned to them. This officer is tasked with supervising the defendant, and the defendant must report to them once each month. Regardless of how frequent the judge sentences a defendant to visit their probation officer, a failure to do it may lead to a hearing. This is because of violating the terms of your probation.
The supervision is necessary to ensure the defendant remains within the state. And is adhering to all the conditions of the probation as issued by the judge, and avoid any violations. The probation officer is authorized to confirm your employment status if it was a requirement as well as administer periodic drug tests.
Sometimes, the probation officer can carry out searches on yourself or your premises to see if you have illegal weapons, drugs, or anything that will be in violation of your probation terms.
Hearing for Probation Violation
A violation of the terms issued for your probation can trigger a hearing on the violations. Because of the harsh conditions of probation, many probationers end up violating these conditions. When one is found guilty of violating the terms of their probation, there are various unfavorable consequences, as we shall discuss later. It is, however, essential to ensure you have a lawyer to represent you during this hearing to avoid undeserving consequences.
Some of the common violations to probation include:
- Willingly failing to pay restitution or a fine when one can
- Failing to attend court when required to
- Failing to make periodic visits to the probation officer as ordered to
- Violating the law and committing another offense
- Declining to submit to or failing alcohol or drug test
If a defendant is suspected of these violations, he or she may be arrested and taken before the judge. A judge can also issue an arrest warrant if the probationer fails to visit their probation officer is needed.
The Rights of the Defendant during a Probation Hearing
Probationers are accorded similar rights to those of other defendants in a court of law. Some of these rights include:
- Having a right to be defended by a criminal lawyer
- Having a right to have witnesses testify on your behalf and be able to subpoena witnesses that may be resisting to come and testify
- Having a right to show any mitigating or unavoidable circumstances that lead to your violating the probation conditions
- Having a right to issue your own testimony
- Having a right to see the evidence the prosecution has against you
Expectations from the Revocation Hearing
When the hearing to determine whether a probationer violated the conditions of the probation concludes, a judge will make a ruling. If you are found to have violated your probation conditions, the judge will consider the following factors before ruling. These are:
- The probationer’s criminal history
- How long had the probationer carried out their probation sentences before violating the conditions
- How severe was the violation
- What recommendations if any has the probation department made
Upon considering these elements, the judge will have various options in their ruling. He or she may:
- Decide to have the probation continue with the same conditions and terms
- Adjust the probation terms to stiffer ones
- Revoke the probation sentence and reinstate a jail time instead
If the judge decides to revoke your probation and sentence you to prison time, the time served on probation is taken into consideration and credited to your prison time. With an experienced criminal lawyer, however, the judge can be persuaded by revoking the probation to modifying it.
Consequences of Probation Violation
Violation of probation conditions can lead to various consequences, as earlier mentioned. This makes it imperative for one to have an experienced lawyer in probation violation matters to defend you during the hearing. Here, we discuss in detail the various consequences a probationer would face if found guilty of violating the terms of their probation. These are:
Revocation of the probation and imposing of the original sentence
In sentencing a defendant to probation, the judge often suspends the original jail sentence for probation. When one violates the terms of probation, it may lead to the judge revoking probation and subjecting the defendant to their original penalty that involved prison time.
For instance, if you were found guilty for a grand theft crime that carries a county jail sentence, a judge can sentence you to serve two years in prison. However, the judge may opt to suspend the sentence and issue you probation instead. If later you are found guilty of violating the terms outlined in the probation, your probation may be revoked and your original sentence of two years imprisonment imposed instead.
Revocation of Probation and Imposing of maximum Sentence according to the Law
Each violation is found under a particular statute that directs its minimum or maximum sentencing if one is found guilty of the offense. If, after the hearing, you are found guilty of violating the terms of your probation, the judge can revoke your probation and impose the maximum sentence according to the law. For instance, if you were sentenced to formal probation as opposed to state imprisonment that carries a maximum of three years prison time, a revocation of your probation may result in a maximum jail sentence of three years.
Extension of the Probation Period
If you are found guilty of violating the probation terms, the judge can decide to extend your probation period. This can be done by first revoking the original probation and imposing a new one with a more extended period where certain conditions still apply.
Be ordered to attend counseling
Depending on the reasons for violating the probation terms, a judge can order the probationer to additional conditions such as those of attending counseling. If one has anger problems, they could be ordered to go for counseling in anger management, among others.
Additional Probation Conditions
When you are found in violation of your probation terms, a judge can look at what is best with regards to justice and order other terms to your existing probation terms.
In most cases, judges would order a probationer to give their hours to the service of the community or government as part of their rehabilitation. This is also at the discretion of the judge to decide which service best suits the offense committed.
Violating your probation terms can lead to consequences that can be life-changing and severe. The above-discussed consequences are some of the common ones. The judge can impose others depending on the facts of the case.
Comparing Regular Hearing to Hearing on Probation Violation
When a person is facing a criminal hearing, they are usually before a jury in court. However, when one is accused of violating their probation, the hearing usually is before a judge and not a jury.
Additionally, in a standard criminal trial, the prosecutor must present the facts of the case beyond doubt to get a conviction. However, in a probation hearing, the prosecutor is only required to show evidence that the probation terms were violated. This means the prosecutor only needs to show that the probationer may have likely violated their probation terms.
In a regular trial, hearsay evidence is never admissible in court unless backed with concrete evidence. In comparison, during a hearing for probation violation, the court allows hearsay evidence provided it is reliable. A witness can issue a written statement in supporting a probation violation that the court may allow even when the witness will not be cross-examined. Although hearsay evidence is allowed in court, it is not always acceptable because it denies the probationer the right to cross-examine the witness.
For instance, if a probationer can be ordered to stay away from his ex-wife following a domestic dispute as one of the probation conditions. However, the wife can call the police claiming the probationer made contact. To support this during the probation hearing, the wife may have a written statement read in court on their behalf. Unfortunately, when this is allowed, the judge can make a decision on the violation based on the hearsay evidence when the probationer’s lawyer has not been able to cross-examine the witness.
Fortunately, the court will allow the lawyer of the petitioner to question the prosecution on the reasons they did not produce the witness and challenge the evidence before it is admitted. An experienced attorney can argue the case and have the hearsay statement thrown out.
Expunging your Record after Probation Violation
Usually, after serving your probation successfully, you would stand an excellent chance to have your criminal record expunged. Expungement is typically under the discretion of the judge. When a petition is filed for expungement, the judge evaluates it. This is in addition to your probation report to make a decision.
Although violating your probation terms does not work to your advantage, one can still get their records expunged. An experienced criminal defense attorney can petition for expungement. He or she can present a convincing argument on your behalf that will result in the expungement of your record.
Find a Criminal Lawyer Near Me
As discussed, the repercussions of violating your probation terms can be severe. Sometimes a person can be wrongly accused of violating their probation and will need to challenge the accuser to avoid wrongful convictions. With an experienced criminal lawyer, one can be able to challenge the allegations and avoid the unpleasant consequences. Speaking to the lawyers at Leah Legal in Los Angeles can be your best option when you or your loved one is faced with these allegations. Call us at 818-484-1100, and let us discuss your defense strategy.