Probation Revocation

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. Below we review different types of probation violations and possible consequences.

What Are Probation Violations?

Probation violations are generally considered technical or substantive. Either can result in probation revocation, but substantive violations are more serious and more likely to result in revocation.

Substantive Violations

Substantive violations include committing a new crime while on probation, absconding (fleeing or avoiding supervision), and violating court orders not to contact, harass, or stalk a victim or another person. These court order violations are typically also new crimes.

Technical Violations

Technical violations refer to most other violations of a probationer's conditions, such as failure to:

• meet with or contact a probation officer as scheduled
• abstain from drugs and alcohol
• attend or complete court-ordered counseling, treatment, or classes (like anger management)
• maintain employment
• pay spousal or child support
• complete community service hours
• pay restitution
• abide by travel or housing restrictions
• surrender all firearms, or
• avoid certain people (such as gang members) and places.

Many probation conditions are standard, but some will be specific to the offender or the offense.

What Happens After a Probation Violation?

It will depend on the severity of the violation and the probationer's history of violations.

Probation Responses to Violations

For technical violations, the probation officer might issue a warning, increase the frequency of check-ins, require more drug testing, or send a report to the judge. States vary as to the types of sanctions probation officers can impose before petitioning to return the probationer to the judge for a revocation hearing. Some jurisdictions use a system of "graduated sanctions" to guide probation officers' response to violations. In some states, probation officers can even direct a probationer to spend a day or two in jail for a violation.

Petition for Revocation of Probation

Probation officers supervising persistent technical violators will likely petition (ask) the court for a probation revocation hearing if they've exhausted all or most of their options or believe the probationer poses a threat to the community. A probation officer or prosecutor may also request a revocation hearing upon learning the probationer is charged with, or arrested for, allegedly committing a new offense (a substantive violation), especially when the allegations involve a violent offense. If the probationer isn't already in custody, the probation officer or prosecutor may request a warrant for the probationer's arrest.

When allegations involve a misdemeanor or non-violent offense, the probation officer might wait until there's a conviction before taking up the revocation with the judge.

What Happens at a Probation Revocation Hearing?

Probationers are entitled to written notification of the time, place, and reason for the probation revocation hearing. A probationer can admit or deny the allegations. If they deny the allegations, a court hearing will typically take place.

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 doesn't have to follow strict rules of evidence.

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, usually a preponderance of the evidence, which means it's "more likely than not" that the violation took place.

What Are the Consequences of a Probation Revocation Hearing?

If the judge finds that a probation violation occurred, revocation is just one option. The judge can order other sanctions short of revocation, such as a brief jail stay, electronic or GPS monitoring, extension of the probation term, or amended conditions of probation. The defense attorney might argue for these or different alternatives to full revocation. Short jail stints are popular methods to give probationers a "wake-up call" to what the full prison term could look like.

A judge will only give a probationer so many second chances, though. Showing back up to court for violating new conditions will increase the likelihood of full revocation. Committing a new violent offense may also result in immediate revocation. Revoking probation means the probationer will be required to serve whatever jail or prison sentence is hanging over their head.

Getting Legal Help

The laws on probation differ from one state to another. Practices can even vary 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.