Probation Violation Hearing – How to Win & Avoid Jail

A probation violation hearing is a proceeding in a criminal court case in which a judge determines whether or not you are in violation of the terms and conditions of your probation.

This hearing is also known as a “probation revocation hearing.” Examples of violations that may trigger a hearing include failure to pay a fine or failure to appear for a court date.

Note that there are special evidentiary rules at probation violation hearings (PVHs). Some of these are:

• there is a lower standard of proof for showing guilt (in comparison to criminal trials), and
• hearsay evidence is admissible.

If you are found in violation of your probation contract, then the judge may:

1. reinstate the same terms and conditions of probation,
2. modify the terms of your probation to make them stricter, or
3. revoke the probation and place you in custody.

If the latter, then the judge can order you to serve up to the maximum sentence for the crime of which you were convicted.

Here at Shouse Law Group, we have represented literally thousands of people accused of violating their probation, and we have a long track record of persuading judges to reinstate probation with no time in custody. Some of the various strategies we use to beat an accusation of violating misdemeanor probation or felony probation are:

1. gather facts and evidence that show that the alleged violation is unfounded,
2. meet with the prosecutors prior to the PVH in an attempt to get the allegations dropped ahead of time, and
3. present mitigating evidence to lessen any punishment if a violation did take place.

	Misdemeanor Probation	Felony Probation
Length	Up to 2 years	Up to 5 years
Supervision Level	Unsupervised	Supervised (by probation officer)
Violation consequences	Depends on sentencing terms and judge’s discretion	Depends on sentencing terms and judge’s discretion
Travel Restrictions	Usually no restrictions	Usually have to get permission from probation officer
Possibility of expungement upon completion	Yes	Yes

Our California criminal defense attorneys will highlight the following in this article:

• 1. What happens at a hearing for violation of probation?
• 2. How does a probation violation hearing get initiated?
• 3. Will the court issue an arrest warrant for a probation violation?
• 4. Can I bail out of jail while awaiting a probation violation hearing?
• 5. How does a PVH differ from a criminal trial?
• 6. Do I always go to jail for a probation violation?
• 7. How do I win a probation violation hearing?

1. What happens at a hearing for violation of probation?

A probation violation hearing is a legal proceeding that you must attend if you allegedly violated your terms of probation.¹ The hearing is held before a judge.

These probation hearings are held for both:

• misdemeanor (or summary) probation violations,² and
• felony (or formal) probation violations.³

Common probation violations

Note that some common violations will trigger a hearing. Some include:

1. willful failure to pay a fine, court fee, probation supervision fee, or restitution,
2. failure to appear for a court date or report to the probation officer,
3. failure to attend counseling, such as anger management or a certified batterer’s program in domestic violence cases,
4. failure to attend rehab, such as substance abuse treatment
5. failure to attend DUI school in DUI criminal cases,
6. failure to seek or maintain employment,
7. failure to finish a GED program or earn a high school degree,
8. commission of a new crime during the probationary period, and
9. failure to submit to a drug test

What happens after a probation violation

If you violate a condition, then a probation officer (PO) or a police officer can arrest you, and bring you to a hearing. In addition, a judge may issue a bench warrant for your arrest.

Example: Sophia is convicted of shoplifting. A judge does not impose incarceration, but rather puts Sophia on a probationary sentence and orders her to repay the store for the stolen goods.

Sophia soon falls behind on her scheduled payments. The county probation department tracks her down and brings her back in front of the judge at a hearing. While the judge could put Sophia in jail to serve time, he decides against it. Her being out of custody does not harm public safety or help her situation. So he alters her conditions to help her pay the store back.

When our clients are accused of probation violations, we fight to get them released on bail right away so that they can remain out of custody pending the PVH hearing.

2. How does a probation violation hearing get initiated?

In our experience, PVHs are initiated by the probation officer (PO), the prosecutor or the judge. One of these parties calls for the hearing after learning you may have violated the terms.

Probationary sentences in every state come with certain conditions attached. These may include:

• paying victim restitution,
• community service,
• seeking and maintaining gainful employment, and
• reporting regularly to a probation officer.

When you violate any of these conditions, then you may be arrested and brought before a judge at a PVH.

3. Will the court issue an arrest warrant for a probation violation?

The court will generally issue a bench warrant for violating probationary terms. Bench warrants get their name because they are issued from the “bench,” which means “the judge.”

Bench warrants are not the same things as arrest warrants. Arrest warrants are issued because of suspected criminal activity. Bench warrants get issued for such things as:

• a probation violation,
• failure to appear for a court date, and
• failing to obey a court order.

Once issued, a bench warrant gives law enforcement officers the authority to arrest you and bring you to court. Note that a bench warrant generally does not expire. It remains in effect until recalled by the judge.

4. Can I bail out of jail while awaiting a probation violation hearing?

You may or may not be able to bail out of jail after violating probationary terms. Sometimes the judge will issue a “no bail hold.” Other times the judge may set bail. Still other times the judge finds it is appropriate to release you just on a promise to return to court for the hearing.

In most states, bail is allowed if:

• the nature of the violation alleged is less serious, or
• you are in compliance with most of your other terms and conditions.

However, in most other cases, bail will likely be denied.

In our experience defending people accused of probation violations, we can usually persuade judges to grant bail by showing them that you have otherwise been compliant and do not represent a flight risk or safety risk.

5. How does a PVH differ from a criminal trial?

There are special evidentiary rules at PVHs.

In criminal trials, the standard of proof is that you committed a crime beyond a reasonable doubt. At PVHs, prosecutors have a lower burden of proof: All they have to show is:

• by a preponderance of the evidence (it is “more likely than not”),
• you violated the terms of your probation.⁴

Therefore, it is harder for us to win PVHs than criminal trials since prosecutors have a lower bar to meet.

Hearsay

In addition, hearsay evidence is generally admissible at PVHs. This is not true with a criminal trial.

The legal definition of hearsay is a statement that:

• was made other than by a witness testifying at the trial, and
• is offered to prove the truth of the content of the statement.⁵

Example: John is testifying at a murder trial. He tells the jury that his sister, Debbie, told him that the defendant committed the crime.

Here, this statement is hearsay under the rules of evidence. The statement was made by Debbie and not John, the person testifying. In addition, the statement is being used to prove the truth of its content – that the defendant confessed to the crime.

Your rights

Note, though, that like a criminal trial, you as the defendant have the following rights:

1. the right to be represented by an attorney,
2. the right to call witnesses, and
3. the right to testify on your own behalf.

6. Do I always go to jail for a probation violation?

It depends on the case and the types of probation violations that occurred. After a hearing, the judge makes a finding as to whether or not you violated any terms of your probationary sentence.

If you did not violate the terms, then nothing happens. You stay on probation and the conditions remain the same as before the hearing.

If a judge says you did violate the terms, then the judge may:

1. reinstate your probationary sentence on the same terms and conditions (which is more usual for a first-time violation),
2. modify your probationary terms so that they are stricter, or
3. revoke the probationary sentence and order you to serve your jail or prison sentence.⁶

Factors for determining punishment

When determining the sentence for violating probation, the judge will take into account the recommendations of the probation department and your attorney. When we defend probationers at PVHs, we try to persuade the judge to impose lax punishments by presenting such “mitigating factors” as:

• this was only your first probation violation, which is often considered less serious than subsequent violations; and/or
• you did not realize you were violating probation; and/or
• your probation term is almost over anyway.

Note that if jail or prison is imposed, the sentence is the term that was originally suspended.

Example: Marcos is convicted of trespassing. In most states, the crime is punishable by six months in county jail. The judge orders Marcos to four months in jail. However, he suspends it with a condition that he remain employed for a year. Marcos quits his job after a couple of months – well before the probation period was set to end – and does not look for a new one.

The judge issues a warrant for Marcos’s arrest. The police arrest him and bring him to court for a PVH. The judge revokes Marcos’s probationary sentence and orders him to do four months in jail, or the time the judge originally imposed but suspended.

7. How do I win a probation violation hearing?

We use a number of advocacy strategies to prevail at the hearing and thus get the probation violation dismissed. A few of these are to:

1. gather facts and evidence through an investigation that show that you did not violate any terms,
2. present mitigating evidence to lessen any punishment, and
3. ask for time served if any jail time is imposed.

We prepare for PVHs the same way we do for criminal trials: Intensive investigation where we compile all the exonerating evidence that suggests you did nothing wrong. If we can show prosecutors that their case is weak, they may drop the probation violation allegations altogether.

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