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Probation Violation Hearings
Understanding Probation Violation Hearings
A probation violation is generally triggered in one of two ways. The first occurs when the probationer picks up a new criminal charge. The other occurs when the probationer allegedly fails to complete a specific aspect of probation, such as checking in or complying with a particular program. If the probation department feels that the probationer has violated their probation, they will seek a probation violation hearing and inform the court of the alleged violations. At the initial hearing, the probation officer provides written notice to the court and the probationer stating the alleged violation(s).
If the court finds probable cause, the second step will be for the court to ask the probation officer if they are asking for the probationer to be detained pending a final hearing on the violation.
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Factors Considered in Probation Violation Hearings
In deciding whether to detain a probationer, the court will generally look at:
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The probationer's criminal conduct
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The nature of the offense for which the probationer is on probation
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The nature of the offense or offenses with which the probationer is newly charged - if any
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The nature of any other pending alleged probation violations
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The likelihood of the probationer's appearance at the hearing if they are not held in custody
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The likelihood of incarceration if a violation is found following the probation violation hearing
If probable cause is found and the court decides not to detain the probationer, the court may order additional conditions pending the final probation violation hearing.
If no probable cause is found, the court may terminate the proceedings or schedule a probation violation hearing. In this instance, the probationer may not be detained.
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Probation Violation Hearing ("Final Surrender" Hearing)
Final surrender hearings follow a two-step procedure. First, the court determines whether the violation(s) occurred by a preponderance of the evidence, and second, the court decides what to do with the probationer if a violation of probation is found to have occurred.
Individuals often mistakenly believe that the standard for finding a violation at a final surrender hearing is the same as at a trial. At a trial, the standard is proof beyond a reasonable doubt. This means that the jury or judge must have an abiding conviction, to a moral certainty, that the charges are true. This is not the same standard for a final surrender hearing. At a final surrender hearing, the standard is a preponderance of the evidence, which is simply a slight tip of the scale one way or the other. In its simplest terms, this would be fifty-one percent versus forty-nine percent.
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Probation Violation Hearing ("Final Surrender" Hearing)
Final surrender hearings follow a two-step procedure. First, the court determines whether the violation(s) occurred by a preponderance of the evidence, and second, the court decides what to do with the probationer if a violation of probation is found to have occurred.
Individuals often mistakenly believe that the standard for finding a violation at a final surrender hearing is the same as at a trial. At a trial, the standard is proof beyond a reasonable doubt. This means that the jury or judge must have an abiding conviction, to a moral certainty, that the charges are true. This is not the same standard for a final surrender hearing. At a final surrender hearing, the standard is a preponderance of the evidence, which is simply a slight tip of the scale one way or the other. In its simplest terms, this would be fifty-one percent versus forty-nine percent.
It is essential to know that certain evidence may be admissible at these hearings, even though the same evidence would not be admissible at a trial. This is because probationers do not have the same constitutional rights they have at a trial. For example, reliable hearsay is allowed at a final surrender hearing. Absent some exception, that same hearsay would not be allowed at a trial.
At a final surrender hearing, the probationer can present evidence to show the court why they should not be found in violation of their probation. This is extremely important as it could mean the difference between being free or being sentenced to jail or prison.
It is critical to be represented by a firm that knows the ins and outs of probation violation hearings, especially as they could result in a jail or prison sentence, depending on what the underlying offense was and what the court may legally impose for that offense.
Many people also mistakenly believe that if a violation is found, it automatically means a probationer will be sent to jail or prison. Imposing a sentence is not the only thing a court can do if a violation is found. There are many other options available to a court that would allow the probationer to continue with their probation and not be incarcerated.
If you have been accused of violating your probation, Contact Bisson Law today to ensure you know your rights and get the representation you deserve.
