Probation is usually part of a sentence in a criminal case, and is often ordered as part of a plea agreement. Instead of a jail or prison sentence, the defendant can go home and keep living their day-to-day life — except there are certain extra requirements that they must fulfill in exchange for avoiding the jail sentence. The court will likely require that the defendant follow certain conditions during the probation period, and then release the defendant from further obligations.
However, if the defendant fails to follow the conditions of their probation, it may be considered a probation violation. In such cases, prosecutors may ask the court to revoke the defendant’s probation, which could result in the defendant having to serve their original sentence (including prison or jail time).
The amount of time that a defendant can serve on probation often depends on the charged offense and the place of the offense. Usually, probation can last between one to five years, but can be longer depending on the type of conviction.
What are the Terms of Probation?
The terms of probation also may depend on the type of offense being punished and the state laws. Often the conditions of probation will relate to the type of criminal offense (such as periodic drug testing for drug offenders). Some specific conditions of probation may include:
- Regular meetings with the probation officer (often at pre-scheduled times);
- Appearing at scheduled court hearings and court appearances;
- Paying any fines or restitution required by the court;
- Avoiding certain people and/or places;
- No out of state travel without permission from the probation officer;
- Obeying all laws, including minor laws (i.e., don’t break the law again);
- Obeying all court orders and mandates from the judge;
- Informing your probation officer if you move or change jobs;
- Do not use illegal drugs;
- Do not drink alcohol to excess;
- Submit to random drug and/or alcohol testing; and
- Being subject to announced and unannounced visits from your probation officer.
Depending on the type of crime committed, you may be banned from being within a certain distance of certain people or places. For example, if the underlying crime involved children, you may be required to keep your distance from places where children are usually found, like schools and daycare centers.
You may also be required as part of your probation to stay away from the victim of the crime. If, for example, you are charged with shoplifting from a store, you may be required to avoid that particular store during your probation.
The specific terms of probation will depend on the state where you live and the type and seriousness of offense that’s being punished. Because it is determined on a case-by-case basis, it is highly unlikely that two different probation sentences will be exactly alike in every way.
Are Probation and Parole the Same Thing?
Not quite. Probation is a method of sentencing for a criminal offense that allows the defendant to avoid jail or prison altogether. Parole allows a person to be released from jail after they have served at least a portion of their required jail term. Parole is only available in limited circumstances, and is not available for certain crimes.
In both situations, the defendant will have a list of requirements to fulfill in order to maintain their probation or parole.
What Happens If I Violate My Probation?
If you fail to comply with the terms of your probation, or you break one of the rules or conditions that are set forth in your probation order, you may be charged with a probation violation. The consequences you face for probation violation may vary depending on state law. In some cases, especially in the case of minor violations, your probation officer may have the discretion to give you a warning.
However, they may also require you to attend a probation violation hearing. If the judge determines that you did in fact violate your probation, you may face certain consequences, including additional conditions to your probation or heavy fines. Some common consequences for probation violation may include:
- Revocation of probation privileges;
- Large monetary fines;
- A brief period in jail;
- Imposition of the original jail or prison sentence;
- Restitution (paying money to the victim of the crime);
- Attending mandatory rehabilitation programs; and
- Community service.
How Does the Probation Hearing Process Work?
If you are accused of violating your probation, you will receive either a warning or a notice to appear in court for a revocation hearing. The probation revocation hearing is held in court, without a jury present. A judge will listen to evidence and determine whether the terms of probation were actually violated and weigh the possible consequences.
There are certain factors that the court will consider, such as the nature and seriousness of the alleged violation and the prior history of violations (if you have been accused of violating probation before). People who have violated probation numerous times will receive more severe punishments than first-time violators.
You do have certain rights regarding the probation hearings, such as:
- The right to receive written notice of the alleged violations;
- The right to be heard by an unbiased judge in court;
- The right to be represented by an attorney (if you so choose); and
- The right to present evidence and witnesses to support your defense.
Another thing to know about the probation hearing process is that the standard of proof in a probation hearing is much lower than in a regular criminal trial. In a regular criminal trial, the prosecution needs to prove their case beyond a reasonable doubt — a very high standard of proof.
In a probation hearing, the prosecution only needs to prove the violation according to a “preponderance of the evidence,” which essentially means that it is more likely than not that the violation occurred. This standard of proof is considered to be lower than “beyond a reasonable doubt.”
Should I Hire a Lawyer If I Have Probation Violation Issues?
If you have been accused of violating your probation, it is in your best interests to consult a criminal defense lawyer to discuss your case. An experienced lawyer near you can give you advice on the best way to proceed, help protect your rights, and present your best defense by representing you at the probation hearing. It can also give you peace of mind to know that you have that professional person on your side helping you preserve your freedom.