Understanding Probation Violations in California: Consequences and Defenses

People on probation must comply with a long list of requirements. With so many restrictions, what happens when someone makes a mistake? While every case is different, punishments ranging from reprimands to jail time are possible when probation requirements aren’t followed to the letter. 

This article addresses common concerns about probation, including the types of probation and the potential consequences of a probation violation. It also discusses possible defenses and how a Marin County criminal defense lawyer can help you after a probation violation. 

What Is Probation? 

Probation is a punishment that is served outside of jail. In California, there are two types of probation – formal and informal. Informal probation (sometimes called summary probation or court probation) is usually imposed in misdemeanor cases. Informal probationers are supervised by court officials. Those convicted of more serious crimes are assigned to formal probation. These people must report to a probation officer. 

Probationers must comply with both standard and special conditions. Standard conditions apply to nearly all probationers, regardless of their unique circumstances. Common standard conditions include attending regular meetings with a probation officer, submitting to drug testing, and obeying the law. Judges can also impose special conditions tailored to the specifics of the case. For instance, a person convicted of DUI might be required to attend therapy or support meetings for people struggling with alcohol misuse. 

What Is a Probation Violation? 

A probation violation occurs when a probationer fails to obey the terms of their probation. Probation violations can be technical or substantive. 

Substantive violations 

Generally, substantive probation violations happen when a person on probation commits a new crime. For example, a person is on probation for assault. An arrest for shoplifting would be a substantive violation. Other substantive violations include disregarding a restraining order, harassing someone, or possessing illegal drugs. 

Technical violations  

Technical violations occur when someone hasn’t engaged in criminal activity but has failed to comply with the terms of their probation. For example, failure to take a drug test is not a crime. But if it is part of someone’s probation requirements, the failure constitutes a technical probation violation. Other technical probation violations include failing to attend meetings with a probation officer, missing court-ordered counseling or treatment appointments, or refusing to pay court-ordered fines or restitution. 

What Happens if I’m Accused of Violating the Terms of My Probation? 

If you violate the terms of your formal probation, the probation officer will submit a notice of violation to the court. The court will issue a bench warrant, which means that you can be arrested and taken to jail until the matter is resolved. 

If you are arrested for violating the terms of your probation, the court will schedule a probation violation hearing, also known as a probation revocation hearing. This hearing differs from a criminal trial in several ways. First, in a criminal trial, the prosecution must prove guilt beyond a reasonable doubt. At a probation revocation hearing, the state only has to prove the violation by a preponderance of the evidence. While reasonable doubt means that it is a near certainty that something happened, preponderance of the evidence simply means that it’s more likely than not that it occurred. Second, while hearsay evidence is not allowed at criminal trials, it can be used at revocation hearings. 

However, you have rights at a revocation hearing. These rights include: 

• The right to be notified of the charges against you, 
• The right to be represented by counsel at the hearing, 
• The right to present evidence, 
• The right to cross-examine the state’s witnesses, and 
• The right to remain silent, and
• The right to testify, if you desire. 

The Consequences of Violating Probation 

After both sides present their evidence, the judge will decide if your actions amount to a violation of your probation. If the judge finds that you committed a violation, there are three options. The judge can: 

• Keep you on probation with the original terms and conditions,  
• Keep you on probation with new requirements and restrictions, or 
• Revoke your probation and force you to serve the remainder of your probation sentence in jail. 

Most probation violations don’t lead to revocation. Courts consider several factors when deciding the appropriate punishment for a probation violation, including: 

• The nature and severity of the violation
  • Substantive violations are viewed more seriously than technical ones, as are violations that pose a danger to the public. 
• The probationer’s criminal history
  • This includes both previous crimes and prior probation violations. 
• The context of the violation
  • The court will consider why the violation happened. Did you drive without a license to get someone to the hospital during an emergency? Or were you taking a day trip? 
• Efforts toward rehabilitation
  • The court will look at your compliance with court-ordered programs (e.g., substance abuse or education). 
• Recommendations
  • The court will consider recommendations from the probation officer as well as your attorney. 

Using these factors, it’s highly unlikely that a judge will order revocation for a minor, technical violation such as missing one meeting, especially if it is committed by a first-time violator. However, the commission of a new crime – even by someone with no prior violations – will likely result in a revocation. If your probation is revoked, you will have to serve the remainder of your probation time in jail. For example, if you have 18 months remaining on your probation at the time of your revocation, you will serve out the remaining 18 months in prison. 

How a Criminal Defense Lawyer Can Help During the Probation Violation Process

A probation violation is a serious matter. Fortunately, a Marin County criminal defense attorney can help you fight back. Common defense strategies include 

• Arguing that no violation occurred, 
• Pointing out the extenuating circumstances surrounding the violation, 
• Showing that you made a mistake about the facts or the law, and
• Challenging the constitutionality of the tactics used by the police or probation officers. 

If you are facing the possibility of a probation revocation and want a strong defense, contact the Brownstein Law Group. Our firm was founded by Marin County criminal defense lawyer Josh Brownstein. Our team works tirelessly to get the best possible outcome for every client. To learn more about what we can do for you, call 415-707-3503 or use our online contact form to schedule a consultation.