First Probation Violation – What Can Happen to Me?

Most state laws set forth three possible outcomes if a person violates his/her probation for the first time. These include a judge:

1. issuing a warning to the probationer and reinstating probation under the person’s original terms,
2. modifying the terms of the probation (often to make them harsher), or
3. revoking probation and sending the probationer to jail or prison.

Judges determine which of the above three options to follow at a probation violation hearing. They usually adopt either of the first two courses with first-time probation violations unless the violations are serious in nature.

Note that a probation violation occurs when a defendant is convicted of a crime, placed on probation, and then violates a specific term or condition of that probation. Most states have specific statutes that set forth the rules for probation and a violation of probation in criminal cases (for example, the California statute on the matter is Penal Code 1203.2 PC).

Note that some common first-time probation violations include not:

• seeking gainful employment,
• paying victim restitution,
• abstaining from alcohol use or the use of illegal drugs, and
• performing community service hours.

1. What happens if a judge reinstates or modifies probation?

Most jurisdictions give judges a fair deal of discretion in how to punish a person for violating the terms of his/her probation.

In general, though, unless a probationer commits a serious violation, a judge will reinstate or modify a person’s probation following a first violation.

If judges decide to reinstate probation, then the probationers are placed on probation under the same terms and conditions as before the violation. Judges will usually also warn the probationers to not break the rules again.

If judges decide to modify your probation, the probationer returns to community supervision, but the conditions of your probation become stricter. For example, a judge can impose:

• additional hours of community service,
• completion of additional hours of a treatment program,
• compliance with a restraining order, or
• mandatory drug tests.

Note that most state laws authorize the authorities to arrest a probationer if there is probable cause to believe he/she either:

• committed an offense, or
• violated any term or condition of his/her probation.¹

Once arrested, the probationer is brought to court and must attend a probation violation hearing.

In cases of probation reinstatement or modification, a judge typically releases a probationer from custody after the hearing is over.

2. What happens if probation is revoked?

If judges revoke probation, then they cancel any remaining probation period, and the probationer will be sent to a jail sentence or prison term.²

In other words, probationers will have to spend the remainder of their suspended sentence as jail time or prison time, rather than out on supervised release. If the sentence was not suspended, then the probationer can face up to the maximum sentence for the underlying offense.

Probation revocations are common when the violation of your probation was a serious one. If the probationer committed a new crime in violating probation, not only will the probationer likely be sent to jail for violating probation, but he/she will also face criminal charges for the new criminal offense.

Note that in cases of a revocation, the probationer is sent back to custody immediately following his/her probation revocation hearing.

A revocation is the worst outcome for first-time probation violations. Criminal defense attorneys and probation violation attorneys do all that they can to avoid this outcome.

3. How does the probation violation hearing process work?

A probation violation hearing is a court appearance that happens after a probationer is accused of violating a term of his/her probation.

At the hearing, the prosecutor will present evidence that the probationer violated a term of his/her probation. The burden of proof that a prosecutor has to meet in presenting this evidence is only a preponderance of the evidence (which is a lower standard than the beyond a reasonable doubt standard used in a criminal trial).³

Once a prosecutor presents evidence, the probationer or his/her criminal defense lawyer can present evidence that there was no probation violation.

If the judge finds that no violation occurred, the probationer is freed from custody and will continue to serve his/her sentence on community supervision.

If, however, a judge finds evidence of a violation, then the judge will reinstate or modify the probation, or revoke the probation and impose a jail or prison sentence.

If the violation results in a criminal offense (for example, a new misdemeanor), the judge can also impose additional penalties for the new crime.

4. What are some common types of probation violations?

A probation violation takes place whenever a probationer does not follow a term or condition of his/her probation.

Some common terms and conditions that a probationer fails to follow (and which result in a first-time probation violation) include the direction to:

• seek gainful employment,
• abstain from alcohol or drug use,
• meet with a probation officer,
• pay victim restitution, and
• perform community service hours.

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