When you violate probation in a misdemeanor case, the court has wide discretion as to what consequences to impose. The judge could let you off with just a warning. The judge could also rachet up your terms of probation, or even revoke probation altogether and send you to jail.
As to the last two results, a judge generally must hold a probation violation hearing prior to modifying or revoking your probation. If during this hearing the judge finds that you did in fact violate your probation, he/she may:
- reinstate your probation,
- modify the terms of your probation, or
- revoke your probation and place you in county jail.
A violation of misdemeanor probation is anything that breaks the terms of your probation, as set out by the sentencing judge after a misdemeanor conviction. Common violations include:
- committing a new crime,
- not performing community service,
- failing a drug test, or
- failing to appear for a court hearing.
Note that misdemeanor probation is sometimes referred to as
- summary probation or
- informal probation.
1. Will a probation violation result in a warning?
Possibly, yes. A judge or probation officer could issue a warning for the violation of your probation. This is typically the case if the violation is:
- the first time you violated your misdemeanor probation, or
- for something minor (for example, like forgetting to attend a meeting with your probation officer).
If a warning is issued, a note of it usually goes into your probation file. If you then commit a subsequent violation, your penalties will likely increase.
2. What about counseling?
You could have to attend counseling or a treatment program for the violation of probation.
This might be the case if your violation involved the failure of a drug or alcohol test.
Counseling or rehab could also be imposed if you violated one of the terms or conditions of your probation by committing a crime involving:
- drugs (as in possession of marijuana),
- alcohol (as in DUI), or
- anger (as in assault or battery).
If the latter, you could have to attend anger management classes.
3. Will a judge modify or revoke your probation?
Possibly. If the violation of your probation was relatively serious (as in possibly committing a new crime) a judge could decide to modify your conditions of probation.1 This typically means that a judge will impose additional conditions or make your terms and conditions more severe.
A judge can also decide to revoke your probation.2 If this takes place, the judge usually orders you to serve any suspended sentence in the form of jail time/a jail sentence.
4. Will a judge hold a probation violation hearing?
If you violate a term of your probation, a judge may hold a probation violation hearing to determine if you did, in fact, violate a condition of probation.3 A probation violation hearing is sometimes referred to as a “probation revocation hearing.”
During this hearing, a prosecutor has the burden of showing, by a preponderance of the evidence, that you violated a probation term.4 If a prosecutor shows that you violated probation, most jurisdictions say that a judge may:
- reinstate your probation on the same terms and conditions that were in effect prior to the violation,
- modify the conditions of your probation with new, stricter terms, or
- revoke the probation and make you complete a jail sentence.5
5. Will the court issue an arrest warrant?
The court can issue a bench warrant for violating a term during the probation period.
Once issued, a bench warrant gives police 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.
6. Can a criminal defense lawyer help?
Yes. You have the right to be represented by a criminal defense lawyer or probation violation attorney at these hearings.
It is generally advisable to seek representation by a criminal defense attorney because your lawyer can help you by:
- showing that you did not violate a probation term,
- minimizing your punishment if a violation is found (for example, by showing that you have a relatively clean criminal history), and
- avoiding further criminal charges.
Note that most law firms and defense attorneys provide free consultations, which means you can get legal advice at no cost.
Also, your communications with a lawyer are protected by the attorney-client relationship. This means your attorney cannot disclose your confidences without first gaining your consent.
Legal References:
- See, for example, Florida Statute 948.06.
- See same.
- See, for example, California Penal Code 1203.2 PC.
- Note that a “preponderance of the evidence” standard is a lower burden of proof to meet than a “beyond a reasonable doubt” standard that applies in criminal cases involving jury trials.
- See, for example, Arizona Rules of Criminal Procedure 27.8(c).
