The judge may use their discretion to impose probation instead of jail time after a person has been convicted of a crime. Probation should be distinguished from parole, where a convict is released from prison early on good behavior. The probation officer monitors individuals and teaches them how to behave responsibly and lawfully.
It is based on the principle of rehabilitation – that the convict can change her ways if only given a chance. Inmates can psychologically identify themselves as criminals in prison, which is not always a conducive environment for rehabilitation.
Massachusetts uses “probation surrender” almost exclusively to describe a violation of probation. The probation system originated in Boston around 1830, and Massachusetts became the first state to codify probation in 1880. Other states followed suit 50 years later, hence the unique term “probation surrender.”
A person can violate probation in many ways. You can get arrested or charged with another crime, fail to notify your probation officer of your move, fail a drug test, fail to pay your probation fee, fail to attend rehabilitation programs, or fail to keep away from the victim.
In legal terms, surrender means to give up a right. A violation of probation can result in a loss of many rights. A good criminal lawyer handling probation surrenders will contend that the violation was unintentional, a mistake, and caused by extenuating circumstances.
How Is Probation Violated?
There are many ways probation may be violated, including:
- Getting arrested
- Failing to update personal info
- Failing to check in with the probation officer
- Failing to pass a drug or alcohol test
- Failing to pay a probation fee
- Skipping out on rehabilitation programs
Simply put, probation can be violated by getting into any kind of trouble.
What Is the Probation Surrender Process?
- Notice: The first step in the probation surrender process is getting a letter from the probation department clarifying the alleged violations and scheduling the probation surrender hearing. After the notice is served, the hearing should be scheduled within a reasonable period of time.
- Hearing: During the probation surrender hearing, the probationer has the right to a defense lawyer. A prosecutor must prove probation was violated by a “preponderance of the evidence,” which is unusually low for a criminal proceeding. Additionally, the rules of evidence are very lax in probation surrender hearings. For instance, prosecutors representing the probation department may bring in hearsay and unlawfully seized evidence.
- Sentencing: A person surrendering probation may be sentenced to:
- Longer probation
- Electronic monitoring
- House arrest
- Community service
- Loss of driver’s license
- Additional fines
If your probation officer believes that you aren’t following the terms of your probation, such as the ones noted above, you could be arrested. There are two kinds of probation violations: technical and substantive.
Technical probation violations do not involve an arrest or serious offense but rather the violation of the probationary conditions. Examples include testing positive for drugs or alcohol, failing to report to or comply with a community-based, nonresidential treatment or service program, and being detained by the police or arrested.
An arrest for a new crime while on probation constitutes a substantive probation violation. These are more serious, as they involve a violation of the law rather than probation terms.
Violation of Probation Hearing
In court, you will be asked to admit or deny your allegations. An attorney will analyze the affidavit of violation, investigate the underlying facts, learn the facts surrounding your charges, and find personalized defenses and mitigation strategies specific to your case and circumstances.
An attorney can help you determine whether to admit or deny the allegations. A hearing will be held if you deny the allegations that you violated your probation. Since the judge will examine the evidence and hear testimony from witnesses, a violation of probation hearing is similar to a trial. It’s distinct from a trial because the judge will use the “preponderance of the evidence” standard to decide whether the violation occurred instead of the “beyond a reasonable doubt” standard that applies at a trial.
Judges can revoke, modify or continue probation or community control if they find you committed a willful and substantial violation. You could be re-sentenced to any sentence that could have been imposed when you were first arrested if the judge revokes probation. This usually means the maximum penalty allowed by law. In felony cases, the sentence is calculated using a score sheet that takes your criminal record, underlying charges, and the number of earlier violations into account.
What Happens at a Probation Surrender Hearing?
Hearings for the surrender of probation are held when someone violates a probation condition. When the probation officer becomes aware of the violation, he or she issues a notice of surrender. In that document, the defendant is ordered to appear in court to defend the allegation that a violation occurred.
Violations of probation are very common. Many people receiving surrender notices panic and ask what will happen at the probation surrender hearing. Answers to that question are always case-specific.
First, you must understand that people who get into legal trouble are often sentenced to probation, even if their underlying case does not result in a conviction. If a case is continued without a finding, there may be probationary conditions to satisfy before the case is dismissed.
The same is true if the case is resolved by pretrial probation.
The preliminary hearing is the next step in the process. In that proceeding, a judge will determine whether there is probable cause to believe that probation has been violated. This is a very low standard. In most cases, the judge will find probable cause simply because the probation officer says you violated our probationary conditions.
However, this does not necessarily mean you have been found in violation. It means that a final surrender hearing will be ordered and scheduled. Additionally, bail may be set or additional conditions imposed after the preliminary hearing and before the final surrender hearing.
Final Surrender Hearing
During the final surrender hearing, the judge must determine whether the probation officer is right in alleging that you have violated your probation. You can successfully defend these allegations if you show that the probation officer is wrong. For example, if probation requires you to report in writing once a month, and you have copies of the documents proving compliance, you will win your hearing.
Also, if the probation officer claims you did not complete a required program but have proof that you did, you should win this hearing. An arrest or allegation that you have committed a new crime is more difficult to defend. Nevertheless, if your lawyer can convince a judge that you did not do what you are being accused of, the violation will not be found.
Probation Violation Sentences
Let’s say you were found in violation by a judge. The next step is sentencing. Judges have many options when it comes to sentencing probation violations. They can continue the probation program. Probation can be modified or extended. Probation can be terminated. They can also order you to be imprisoned for as long as the underlying statute allows.
This is the bottom line: getting a good lawyer is a must if you receive a probation surrender notice.
Do I Need a Lawyer?
If you’re on probation and are concerned that you may be faced with surrendering it, you should contact a criminal defense lawyer immediately. Your attorney can help you navigate the probation surrender process and protect your freedom.