Defendants caught (either by police or probation officers) violating a condition of probation are subject to having their probation revoked (taken away) and all or part of the original suspended jail or prison sentence imposed. Because one typical condition of probation is to obey all laws, a probationer who is rearrested on even a minor charge may be subject to penalties for both the current arrest and the probation violation.
(Learn more about probation—including its conditions—in our Probation section.)
Does the Prosecution Need a New Conviction for Probation Revocation?
If a probation violation is discovered and reported, it is likely that the court will conduct a probation revocation hearing. If the defendant violated probation by breaking a law, the probation revocation hearing will probably take place after the new offense has been disposed of. If the violation was not a new criminal offense but nevertheless broke a condition of probation (for instance, socializing with people the judge prohibited the defendant from contacting), then the revocation hearing may take place as soon as practicable after the violation is reported. Defendants are entitled to written notification of the time, place, and reason for the probation revocation hearing.
The revocation hearing isn't the same as a trial. The burden of proof for the prosecution is typically not "beyond a reasonable doubt." Rather, it's something less, such as having to prove that, "more likely than not," the violation took place. Because the burden of proof is less than at a trial, a probationer might face what could seem to be inconsistent results: If the probation violation is the commission of a new crime and the probationer is acquitted of that crime, he can nevertheless have his probation revoked. In essence, probation is a privilege that can be lost more easily than one’s initial freedom.
The Probation Revocation Hearing
A probation revocation hearing happens in court, without a jury. Both the defense and prosecution may present evidence to show the judge why the defendant should or should not be subjected to whatever penalty the judge originally ordered, but suspended. The defendant is allowed counsel at this hearing, but the judge does not have to follow strict rules of evidence.
Bargaining Over a Revocation
When a defendant arrested on new charges is found to be in violation of an earlier probation order, the defense may negotiate a new plea bargain to cover both cases in one package deal. This is especially common in busy courts where calendars are backlogged.
Check out our section on Plea Bargaining to learn how (and why) deals are made.
Talk to a Lawyer
The law on probation may differ from one state to another. Practices may even vary somewhat from one part of a state to another. And federal court has its own set of rules. If you’re facing probation revocation, be sure to consult an attorney experienced with the relevant law. You can begin your search with Nolo's Lawyer Directory.