In California, probation is a sentence imposed by the courts as an alternative to probation. Not every defendant is eligible for probation. If you are a low-level offender with no criminal history, you may have a chance to serve probation for your felony or misdemeanor offenses. Probation lasts one to five years, depending on the nature of your crime. While probation allows you to escape spending time behind bars, the judge attaches serious conditions you must follow throughout your probation period. The conditions of probation vary depending on the specific crime for which you face a conviction.
Common probation conditions include refraining from criminal activity, drug testing, counseling, and check-ins with a probation officer. If you violate your probation conditions, you will face a court hearing where you can battle for your freedom. If the court proves that you violated a specific term, you could face severe consequences, including revocation of your probation and reinstatement of jail time. Legal guidance is critical if you or your loved one faces charges for probation violations. At Foos Gavin Law Firm, we offer competent legal advice for all clients battling probation violation allegations in Sacramento, CA.
Probation Violation in California
Probation is the supervisory sentence that judges impose as an alternative to jail time. You may be eligible for probation if you face a felony or misdemeanor charge. However, it is vital to understand that probation is not offered automatically. Your attorney must negotiate this sentence with a prosecutor if they feel it is in your best interests.
Although probation can allow you to lead your everyday life while performing community service, there are strict probation terms that you must follow throughout the probation period. Failure to obey the probation conditions attracts an arrest and charges under PC 1203.3. Probation conditions are different for different types of probation. There are two categories of probation:
Felony probation is known as "formal probation" and is an alternative to spending time in prison. When the court issues a formal probation sentence, you will serve part of your prison sentence on community service. In California, felony probation lasts between three and five years. The court appoints a probation officer who monitors your progress during probation and may conduct a home check to determine your living conditions. The court does not issue formal probation to all defendants who face a felony conviction.
The following are some of the factors that determine your eligibility for formal probation:
- Your prior criminal record. This will include the history of adult and juvenile offenses.
- The nature of your criminal conviction. If the felony you are charged with is violent or involves sex offender registration, you may not qualify for probation.
- The level of monetary loss suffered by the victims. If you committed a crime like a robbery or vandalism, the court would determine your eligibility based on the financial loss you caused.
- The impact of a prison sentence on your family life.
- Your willingness to obey the probation terms.
If the court grants you probation, you must comply with these conditions throughout the probation period, including:
- You must not violate any laws. However, this condition does not cover traffic infractions.
- Submit to random alcohol and drug testing.
- Avoid association with gang members and drug users.
- Pay restitution fees if you caused damage or injury to someone while committing the felony offense.
- You cannot leave the country while on formal probation unless with the permission of your probation officer.
- Submit to all random searches by police officers.
- Complete drug treatment and counseling
In addition to the probation conditions, you must constantly check in with a court-assigned probation officer to report your progress. Some of the roles of the probation officer in your case include:
- Before and after you receive the probation sentence, the probation officer will visit your home and perform different evaluations for the court. This includes your living conditions and employment status.
- Case management. After facilitating the assessment, the probation officer will send referrals and give recommendations.
- Record management. Probation officers have to keep all records involving your case. After assessing your criminal history and conduct, they must write a report and present it to the court.
- Report violations. If you violate any probation terms, the probation officer is responsible for reporting the violations and initiating a probation violation hearing.
Misdemeanor probation, commonly known as "informal probation," is imposed on defendants who face a conviction for misdemeanor offenses. Facing misdemeanor probation means you will spend your entire sentence on community service. Although a first-time offender may be more likely to receive this form of probation, a repeat offender could convince the court to offer the sentence.
Like in formal probation, the court imposes conditions for defendants on informal probation. Some of the terms with which you must comply while on misdemeanor probation include:
- Payment of fines and victim restitution
- Complete your community service hours
- Seek and retain gainful employment while on probation
- Refrain from drug or alcohol use
- Attend individual or group counseling
- Avoid criminal violations
Misdemeanor probation differs from felony probation because you will not need to report to a probation officer while on summary probation. Additionally, the court will not impose travel restrictions. Instead, you must appear in court at one point during your sentence to offer a report on your progress. As you continue to serve your probation, the court can modify the terms as the judge sees fit.
Instances of Probation Violation
You can face charges for probation violation if you engage in any of the following conduct:
- Failure to pay fines and victim restitution. Both felony and misdemeanor probation require you to pay your fines and restitution. Fines are often part of the sentence for your crimes. On the other hand, restitution is the amount you pay the victims of your crimes to cover their losses.
- Failure to appear for court hearings. A requirement to appear in court is an order you must follow even while on probation. Therefore, failing to show up on the date set may result in allegations of probation violation.
- Engagement in criminal activity. When the court gives you a chance to avoid jail or prison time by sending you on probation, you should avoid violating other laws. If you face an arrest for another criminal offense, you risk facing penalties for your offense and probation violation.
- Being under drug or alcohol influence. The court requires you to submit to random drug tests. If you are found to be under the influence of alcohol or drugs, you can be cited and charged with probation violation.
- Firearm Possession California law does not allow the possession of firearms by convicted felons. Therefore, even when you are sent to probation, the court requires that you avoid purchasing or using a gun.
- Violation of a Restraining Order In cases where you are sent to probation after a conviction for domestic violence, the judge may issue a protective order requiring you to avoid contact or communication with the alleged victim. Violation of the protective order will attract a probation violation charge.
- Failure to attend court-ordered programs
- Failure to maintain employment. The inability to find or retain a job while on probation is a violation that could attract severe
- Failure to keep in contact with your probation officer. A probation officer is appointed to monitor your progress when you are sentenced to felony probation. In every court’s decision henceforth, the judge may require the insight of the probation officer. Therefore, failing to contact them can attract an arrest and charges under PC 1203.2.
Probation Violation Hearing
Under California Penal Code 1203.2a, you can face an arrest when the probation officer or police officer finds probable cause to believe that you have violated probation terms. It is essential to understand that your probation officer or law enforcement officer does not need an arrest warrant to arrest you for a probation violation.
After the arrest, the court can either release you or set a probation violation hearing. In most cases, you cannot secure a release from jail after an arrest for probation violation on bail. However, in cases where your offense is not severe or you have complied with most terms, the court can allow you a bail release.
Depending on your violation's circumstances, the judge, the prosecutor, or a probation officer can initiate your probation hearing. The probation violation hearing differs from a criminal case in two ways: the burden of proof and the nature of evidence.
In a criminal case, the prosecution must prove beyond a reasonable doubt that you committed the alleged offense. Therefore, the case outcome is either you are guilty or not guilty. With the probation violation hearing, there is a lower burden of proof. The prosecutor must only show by a preponderance of the evidence that you violated the specific probation terms. Additionally, the PVH hearing depends on hearsay evidence, a statement made by another person instead of witness testimony.
Your Rights in a Probation Violation Hearing
Although the nature of evidence and burden of proof needed for a probation violation hearing differs from that of a criminal trial, you have similar rights in both hearings. Some of the rights you can exercise for your probation violation hearing include:
Right to Legal Guidance
A probation violation is a severe offense, and the consequences of the breach may be severe and life-changing. Additionally, the burden of proof in this hearing is low. Therefore, finding you in violation is easier. Seeking legal guidance is crucial as you battle your probation violation hearing. Your attorney can help you prove that you did not engage in the violation or that the violation does not warrant a probation revocation.
Right to Subpoena Witnesses
The judge or prosecution invokes a probation violation hearing when you commit another offense or fail to comply with other terms. Since the prosecutor will present their witnesses, including the arresting officer or your probation officer, you can cross-examine these witnesses and present other witnesses to testify on your account of events.
Right to Disclosure of Evidence Against You
Before you attend your probation violation hearing, you have a right to be notified of the evidence that the prosecution has against you. Learning about this evidence will help your attorney build a strong defense against the allegations.
Right to Present Mitigating Evidence
Sometimes, a mistake of fact or an accidental act could be mistaken for a probation violation. Therefore, you can exercise your right to present mitigating evidence that explains the reasons for the violation. Additionally, you can testify on your behalf.
Defense Against Probation Violation Allegations
The consequences of a probation violation are serious. Fortunately, you can present a defense by arguing that:
- You did not commit the violation. Although the prosecution does not need to prove beyond a reasonable doubt that you committed the violation, you can argue that you did not engage in the activity that constitutes the violation. For example, if you face an arrest for another offense while on probation, you can fight c to avoid the consequences of the violation.
- The probation violation was accidental. Most probation terms are very challenging to Unfortunately, some violations may result from unintentional acts. For example, if the court issues a protective order against you, you are prohibited from contacting a victim of your domestic violence offenses. However, if you accidentally find yourself around that person, you can face charges for probation violations. You can avoid the probation violation consequences by arguing that you did not intend to contact the person.
- The violation was minor. The nature of your violation will determine the outcome of your probation violation hearing. You can defend yourself against probation violation allegations by claiming that the violation was minor and doesn’t warrant harsh consequences.
Consequences of a Probation Violation in California
The court will determine the next step at the end of your probation violation hearing. There are several outcomes that you can expect from a probation violation hearing, including:
Reinstatement of Probation with Original Terms
The judges have discretion in reacting to the evidence presented in a probation violation hearing. The most favorable outcome of your hearing is the reinstatement of the probation term with the original conditions. Often, the court will take this action when they find that you did not commit the violation or the alleged violation was minor. Other factors that could cause the judge to reinstate the probation with the original terms include:
- It is your first violation. During a first probation violation hearing, the judge may not take serious action against you.
- Your violation was minor. Some probation violations are more serious than others. The judge may gear their decision towards reinstating your original probation sentence.
- The underlying offense is low-level. If you face a probation violation hearing for committing another crime, the seriousness of the offense could affect the outcome of your probation violation case.
- You have complied with most of the probation terms. If you have adhered to most of your probation terms, the court may not take serious action against you for a violation.
If the judge reinstates your probation with the original terms, you will be released from custody and return to your supervised release. However, the judge will warn you against probation violations. It is essential to understand that the judge may not be lenient when you end up in a probation violation hearing for a second or subsequent time.
Reinstatement of Probation with Modified Terms
Another common outcome of a probation violation hearing in California is the reinstatement of your probation with harsher probation terms. This means that the judge will send you back to probation but add to the requirements that you must comply with while on probation. Some additional consequences may include:
- Community service. If your probation does not involve the requirement to do community service, the court will add this requirement after your probation violation.
- Extended length. The probation term varies from one to five years, depending on the type of probation. If you violate your probation and the court reinstates it, you may have to serve the probation longer than the original sentence.
- Counseling. The judge can order you to attend anger management and drug or substance abuse counseling as an additional term to your probation.
Probation Revocation and Reinstatement of the Original Sentence
For each criminal conviction, the judge has various penalties from which they can choose your punishment. If you face charges of serious probation violations, the court can revoke the probation and reinstate your original prison or jail sentence. Probation revocations are often the result of severe breaches.
For example, if you face a conviction for evading a police officer, the court can sentence you to probation instead of a one-year jail sentence. However, if you violate one of the probation terms, the judge can revoke your probation, and you will be put back in jail. In this case, you must spend the remainder of your sentence in prison.
Revocation of Probation and Imposition of the Maximum Sentence
If the court finds enough evidence that you committed a probation violation, the judge will revoke your probation and impose a maximum sentence. For most offenses, the jail or prison sentence is a range, and the court has the discretion to impose the number of years they see fit. If you are sentenced to probation instead of a jail term and violate the probation, the judge may revoke the probation and impose the harshest sentence for the alleged offense.
For example, after a conviction for an offense carries a three to six-year prison sentence, the judge may sentence you to four years and require you to serve part of it on probation. However, a probation violation could cause you to serve a maximum sentence of six years.
How Does Probation Violation Affect Expungement?
An expungement is a post-conviction relief that allows you to avoid the prejudices and disabilities associated with your criminal conviction. When expunging your record, the court allows you to withdraw your guilty plea and enter a not guilty plea. However, not all criminal defendants are eligible for an expungement. You must meet all the requirements to receive this type of relief.
One of the requirements that you must satisfy to expunge your record is to complete your probation. Successful completion of probation means that you completed the full probation term and complied with the terms imposed for your probation. Having violated your probation means you do not meet the requirements for an expungement. However, this does not mean you cannot file an expungement petition.
You can request the court to grant you an early termination for a faster expungement of your criminal conviction. Violation of your probation terms makes it impossible to seek early termination. Similarly, if the judge modifies your probation terms after a violation, you may need to serve a more extended probation period, which delays your ability to seek expungement relief. If you hope to expunge your criminal record, it would be wise if you complied with all probation terms.
Find a Reliable Sacramento Criminal Defense Attorney Near Me
Spending time behind bars is one of the most dreaded consequences of a criminal conviction. Individuals who end up on probation after a conviction in California are fortunate to avoid spending time in jail. Probation is served out on community service. The court can sentence you to formal probation for a felony conviction or informal probation for a misdemeanor conviction. Understanding that probation is not a way to escape responsibility for your crimes is essential. During your time on probation, you must comply with a variety of conditions.
Violating one or multiple probation conditions is a serious offense under California Penal Code 1203.2. You have the right to present your arguments against the allegations at your probation violation hearing. A loss in the probation violation hearing may attract consequences like the reinstatement of probation with harsher conditions or revocation of probation for the original or stricter prison sentence.
Seeking legal guidance can make a difference in the outcome of your probation violation hearing. At Foos Gavin Law Firm, we understand the devastation of probation revocation. If you or your loved one battles a probation violation hearing in Sacramento, CA, you will need our expertise by your side. Contact us today at 916-779-3500.