Many people falsely assume that their case is over when they are put on probation. The truth is, the courts look at probation as an alternative to jail. The judge maintains jurisdiction over the case during the period of probation in order to monitor the Defendant’s progress and enforce the court ordered probation conditions. Absolute compliance is expected. Even a seemingly minor violation can have serious consequences. If your probation officer accuses you of violating your probation, they will file an affidavit of violation with the court, which usually results in a warrant being issued.
Most VOP warrants are issued with no bond. If you are arrested on a VOP warrant, you could be held in jail for weeks before your court date. If you are arrested out of county, or out of state you will be extradited, which may take significantly longer. The extradition process involves the defendant being transported in custody back to the jurisdiction in which they were placed on probation. This typically involves the defendant being transferred from jail to jail, until they eventually make it back to the county in which the charge originated. Even if the allegations are false or unsubstantiated, you may be held in jail with no bond until a hearing date is set.
At the initial VOP court date, the judge will ask you to admit or deny the allegation. If you admit, in most cases you will be sentenced immediately. It is important to remember that even though you were initially placed on probation, any violation exposes you to the maximum penalty for your charges. For example, if you were placed on 12 months probation for grand theft, a third degree felony, a violation of that probation could result in a sentence of up to five years prison, the maximum for that charge.
If you deny the violation, your case will be set for an evidentiary hearing. At that hearing the State Attorney will attempt to prove that you violated your probation. It is important to realize that the standard of proof is much lower in a VOP hearing than in a criminal trial. In a criminal trial the prosecutor must prove the defendant guilty “beyond a reasonable doubt.” However, the standard in a VOP hearing is “by a preponderance of the evidence,” which is a much lower burden for the prosecutor to meet. The procedural rules are also slightly more relaxed in a VOP hearing.
There are a number of issues specific to VOP hearings that are important to understand:
• Hearsay is admissible. However, hearsay alone cannot provide the sole basis for a violation.
• A violation must be “willful and substantial.” e.g. Inability to pay is a defense to a violation for missing scheduled payments.
• The Prosecutor must show that the defendant was properly advised of the conditions of his/her probation.
• Evidence uncovered in an unlawful search is usually inadmissible in a VOP hearing.
• Many times an affidavit of violation will contain multiple violations. However, the prosecutor only needs to prove one in order for the judge to find you “in violation” of your probation. The defense of a violation of probation is a delicate process. It is crucial that anyone charged with a VOP consult an experienced VOP attorney as soon as they are aware of the violation. If handled correctly, many times it is possible to resolve the violation without the defendant ever being taken into custody.