A probation revocation occurs when a defendant is on probation for a criminal matter and he or she violates a term or condition of the probationary sentence. The probationer may then have to serve the balance of the sentence in jail, rather than on community supervision. This decision is made at the probation violation hearing, which is sometimes referred to as the probation revocation hearing.
What happens when probation is revoked?
If a judge decides to revoke someone’s probation, that person will be sent to jail. The jail sentence will be the one that was originally imposed by the judge at the sentencing hearing.
For example: Mary is charged with trespassing and pleads guilty. The judge imposes a 4-month sentence, but suspends it in order to put Mary on misdemeanor probation, instead. 3 months later, Mary violates a term of her probation by trespassing, again. The judge revokes her probation and imposes the suspended sentence. Mary will spend 4 months in jail.
What kinds of probation violations can lead to revocation?
Substantive violations generally lead to a probation revocation. Technical violations may lead to revocation, but are less likely to do so.
Probation is a form of supervised release. The judge will release a defendant who has been convicted of a crime, but put terms and conditions on that release. These conditions will last throughout the probation period. Common conditions of probation include:
- not committing another crime,
- regularly meeting with a probation officer,
- submitting to drug testing,
- paying victim restitution,
- abiding by a restraining order, especially if the underlying offense was for domestic violence,
- maintaining stable employment or school enrollment,
- performing community service,
- participating in counseling or anger management, and
- completing an alcohol or drug abuse program, often for a drug possession crime or for driving under the influence (DUI).
The stringency of the terms of your probation will depend on the type of probation imposed. In California, there are 2 types:
- felony probation, for felony offenses, and
- misdemeanor, or summary, probation, for misdemeanor offenses.
A substantive violation breaks one of these rules in a way that can amount to a criminal case.
For example: Xavier is on probation for committing domestic battery on his girlfriend. He is then arrested and accused of stalking her.
Substantive violations frequently lead to a revocation of probation. The probationer’s suspended sentence will be imposed. He or she will be sent to jail to serve the sentence. They will also face new criminal charges for the new offense that amounted to the substantive violation of probation. This new crime can lead to additional jail time or a prison sentence.
Probation violations that are not criminal offenses are technical violations. Technical violations can lead to a revocation of probation, but often do not.
For example: Xavier is on probation for his domestic batter conviction. He is 20 minutes late to one of his required counseling sessions.
What is the probation revocation hearing?
The probation revocation hearing is where the judge will decide how to penalize the probation violation. There are 3 potential outcomes. The judge can:
- reinstate probation at the same terms as before,
- modify the terms to make them stricter, or
- revoke probation and send the probationer to jail.
Probation revocation proceedings often get triggered when the probation officer learns of a potential probation violation. The probation officer will file a motion to revoke probation with the court. If a judge thinks that there is probable cause to believe that there was a violation, he or she will issue a bench warrant. Similar to an arrest warrant, when law enforcement find the probationer, they will make an arrest. The probationer will be put in custody until the probation violation hearing can be scheduled.
In between the execution of the bench warrant and the hearing, the defendant may be allowed to bail out of jail.
At the probation violation hearing, the judge will hear evidence that the defendant violated his or her probation. Prosecutors only have to prove this by a preponderance of the evidence, though.1 This burden of proof is substantially lower than the beyond a reasonable doubt standard required at a criminal trial. Additionally, the rules of evidence are relaxed so that hearsay evidence is admissible at these hearings.2
Once the prosecutor has presented their case, the probationer – often through his or her criminal defense attorney – can present evidence that:
- the alleged violation did not happen, and/or
- the violation was not a serious one.
Based on the evidence presented, the judge will then decide whether there was a violation or not.
If he or she determines that there was no violation, the defendant is let go. Probation remains as it was, before.
If the judge finds that there was a violation, the judge will decide whether to reinstate, modify, or revoke probation. If probation is revoked, the judge will send the probationer to county jail.
The potential consequences of a probation revocation or modification are significant. By establishing an attorney-client relationship and getting the legal advice a criminal defense lawyer from a reputable law firm, probationers can protect their future.
What is the difference between probation and parole?
Probation is similar to parole. However, there are a few important differences.
The major difference between probation and parole is that probation is imposed in lieu of jail. Parole is a type of release for current inmates. Defendants sentenced to probation do not go to jail. Inmates have to serve some of their sentences in jail or prison before becoming eligible for parole.
Once an inmate is released on parole, though, probation and parole are similar. They are both types of supervised release. While the parolee and probationer are not behind bars, they do still have to comply with the terms and conditions of their release. If they violate one, they could be sent back to jail.
Additional resources
For more in-depth information, refer to the following scholarly articles:
- Legal and Extralegal Factors Associated with Success on Misdemeanor Probation – Open Journal of Social Sciences.
- Fugitives from Justice: An Examination of Felony and Misdemeanor Probation Absconders in a Large Jurisdiction – Federal Probation.
- New Directions in Misdemeanor Probation – Judicature article about advances in probation for misdemeanor offenders.
- Felony probation: A re-examination of public risk – American Journal of Criminal Justice article weighing the benefits of probation with the risks to public safety.
- Probation and Felony Offenders – Federal Probation article about how probation works in felony cases.
