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Probation Violation Defense in California

A probation violation is a serious offense with variant outcomes. Per Penal Code 1203.3 PC, the judge has wide discretion in how to treat a probation violation, meaning the penalties you face depend not only on the circumstances of the violation but on the disposition of your judge, as well as the severity of your initial offense. Any history of prior probation violations will also be weighed, alongside relevant criminal history and the recommendations of the probation department. Therefore, there is no single, concrete answer to the question: what will happen if I violate my probation in California? The answer is: it depends.

There are common potential outcomes, however, which we will explore. Despite the variance of outcomes, one thing remains the same: if you violate your probation in California, immediately contact a California criminal defense attorney and consult with them about the circumstances of your case. A probation violation could potentially lead a judge to revoke your probation altogether, in which case you may have to serve your original sentence. This could mean jail time and/or fines, underlining the importance of retaining an experienced, aggressive criminal defense attorney to represent you. When dealing with a probation violation, do not make the mistake of thinking you won't need an attorney because your case was already 'resolved.' Your freedom could once again be at stake; do not take your chances or face the court without a skilled legal representative. 

Overview of Probation in California

Probation is a supervisory sentence that may be imposed in lieu of or in addition to jail time. It is preferable to the defendant if they are sentenced to probation over jail time. It is a sentencing alternative for both felonies and misdemeanors. The law defines two types of probation: felony and summary. Felony probation is the stricter, more formalized of the two. It is less desirable because it mandates that the probationer regularly reports to a probation officer. In a summary probation, the defendant may only need to appear in court for period 'progress reports,' but will not have to report and answer to a probation officer. Regardless of whether the defendant receives felony or summary probation, there are always a number of conditions and requirements they must adhere to if they wish to stay in good standing with the court. If they fail to do so, they may be found guilty of violating their probation.

These conditions may include:

  • refraining from alcohol or drug use for the duration of their probation
  • paying a restitution fine
  • a requirement that they remain gainfully employed
  • carrying out community service or Cal Trans roadside work
  • wearing an electronic monitoring device TA
  • avoiding contact with certain individuals
  • participating in treatment or classes

A given probation may be issued with unique terms, but it is most common for a probation to have some form of the above conditions. During probation, the defendant has been conditionally released from custody. They are to remain out of custody as long they comply with these terms. A successfully completed probation may prompt the court to dismiss your conviction. Probation that is otherwise terminated because the probationer did not adhere to their terms will, in the worst case scenario, result in jail time.

Common Probation Violations:

  • failure to appear in court
  • willful failure to pay fines or restitution
  • not submitting to, or failing, a drug test
  • failure to report to a probation officer
  • committing a new crime
  • not completing required treatment or classes

Consequences of a Probation Violation in California

What To Expect:

Even though quite a lot is up in the air after a probation violation, one thing remains certain: you will attend a California probation violation hearing. In advance of the hearing, there is a chance that a warrant will be issued for your arrest. This is not a guarantee. It depends on the circumstances of your probation and the nature of the violation that occurred. Alternatively, if you are on felony probation and report the violation to your probation officer, you may be arrested on site. Depending on the nature of your original charge, you may or may not be eligible to post bail and await your hearing out of custody.

You are strongly advised to hire a criminal defense attorney to represent you at the probation violation hearing. Without one, you stand a far greater chance of seeing your probation revoked or the terms worsened. The prosecution will only need to prove there is at least a 51% chance that you are guilty of violating at least one term of your probation. This standard is far easier to meet than the "beyond a reasonable doubt" standard of proof that is employed in most other criminal cases. Furthermore, there is no jury to weigh the evidence against you. Your fate rests solely in the hands of the judge, who has final authority in your case.

All potential outcomes of a violation hearing tend to fall into one of three categories:

  1. The judge will increase the terms of your probation
  2. The judge will revoke your probation and order jail time
  3. The judge will reinstate your probation with no changes

Depending on the violation, the judge may revoke your probation and can add new terms. If he or she chooses to reinstate your probation without otherwise changing the terms, it is relatively common that they impose a short jail term to penalize the violation. Alternatively, the judge may keep your probation terms the same and require no jail time. The judge may choose to make the terms of your probation more stringent in accordance with the nature of your violation. For example, if the violation stemmed from drug or alcohol use when the probationary terms prohibited it, the judge may add a probationary requirement that the defendant submits to periodic drug testing. In addition, it is possible you could be fined.

The worst-case scenario of a violation is the judge completely revoking your probation and ordering you to spend the remainder of your sentence in custody. Your jail or prison sentence would be reduced by the amount of time you have already served on probation. If any new criminal charges arose from your violation (i.e. you committed a crime while on probation), you may face prosecution for these new charges or the case will be resolved as part of the probation violation.

Your best chance to mitigate the penalties for a probation violation is hiring a knowledgeable attorney immediately so they may represent you at the hearing and defend you against the prosecution. California criminal defense attorney Lynn Gorelick is equipped with over 30 years of experience; she is firmly committing to defending your rights. If you have violated a term of your probation, contact Lynn Gorelick online for a free consultation or call 510.785.1444 immediately

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