After an arrest in California, you may be facing jail time. Even misdemeanors can be punishable by up to a year in jail. In many cases, especially for first-time offenders, the court will offer probation instead of incarceration. This may seem like a great relief. However, probation can be complicated and go on for years. Even probation for offenses like drunk driving can last for 3 to 5 years.
Talk to your lawyer about probation as an alternative to jail and what the requirements are for your probation situation. There are also different types of probation, including informal or formal probation. Make sure you know what to expect before taking a plea bargain that includes probation. Contact a knowledgeable East Bay criminal defense lawyer about your legal rights.
What Is Probation?
Probation is a criminal penalty where the defendant does not have to spend their sentence in jail but has to follow certain conditions and restrictions. Under California Penal Code § 1203, “probation means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.“
Probation may be available for misdemeanor charges or felony offenses. For misdemeanor charges, the court can refer the case to a probation officer or summarily pronounce a conditional sentence, without a probation officer.
“Conditional sentence means the suspension of the imposition or execution of a sentence and the order of revocable release in the community subject to conditions established by the court without the supervision of a probation officer.”
However, if someone is convicted of a felony, the court will refer the matter to a probation officer to investigate the situation and make a recommendation about denying or granting probation and the conditions of probation. Probation is less often granted for serious felony offenses, like arson, robbery, carjacking, or burglary.
Formal probation or supervised probation means that a probation officer will be handling your case and that you have to report to the probation officer when necessary. The type of supervision will depend on the conditions of probation. Some formal probation may mean checking in with the probation officer daily, weekly, or monthly. There are generally travel restrictions associated with formal probation, where the probationer cannot leave the state without approval.
Informal Probation or Summary Probation
With informal probation or court probation, the probationer reports to the court and does not have to check in with a probation officer. The terms of informal probation will depend on the situation but it may not require any reporting on a regular basis. Instead, probation may require completing the terms of probation within a certain amount of time and reporting to the court when the conditions of probation are completed. Also called summary probation, the individual may also have to report to the court if they plan on moving.
Formal probation can lead to informal probation if the probation officer finds the probationer has completed the probation requirements. The court could allow the individual who complies with probation and has cooperated with the conditions to serve out the rest of probation on summary probation.
Conditions of Probation
The conditions and restrictions of probation depend on the individual situation. Probation can last anywhere from a month to 5 years. In some cases, the court can extend probation. Conditions of probation can include:
- Avoiding alcohol or drugs
- Not getting arrested for additional crimes
- Drug testing
- Alcohol monitoring (SCRAM bracelet)
- Turning over any firearms
- Checking in with your probation officer
- Surprise checks from the probation officer
- Participate in substance abuse treatment program
- Batterer's intervention program
- Pay court fines and fees
- Pay probation costs
- Follow protection orders/restraining orders
- Pay restitution
- Community service
- Consent to searches
With summary probation, you are still expected to follow the restrictions and conditions but there may not be someone supervising you. Instead, with informal probation, you may only have to report to the court when you have finished the requirements or you are having trouble completing the terms of probation. However, even if you have finished all the conditions, you will generally still have to wait out the full probationary term before the conditions will be lifted.
Penalties for Probation Violations
There are penalties for violating the terms of probation. There are a lot of ways the court can find out about violations. For example, the court will generally be notified if you are arrested while on probation because the probation will be on your police record. With summary probation, the court will know if you didn't complete probation if you don't submit the necessary evidence that you have finished your requirements.
With formal probation, your probation officer may identify any violations and report them to the court. For example, if you fail to show up for probation or you do not call your probation officer to check in, this can be reported to the court. Similarly, if you fail a drug test, test positive for alcohol with a no-alcohol restriction, or violate a restraining order, your probation officer can report these violations to the court.
The penalties for a probation violation will depend on the type of violation and probation history of the individual. For a minor violation after successfully participating in probation for a time, the court may:
- Continue probation with a formal warning
- Give the individual additional time to complete the conditions of probation
- Modify the terms of probation or add additional restrictions
For repeated or serious violations, the court can send the individual back to jail.
Probation is conditional. If you violate the terms of probation, your probation privileges can be revoked. The court could immediately sentence you to jail to serve out your sentence. Some defendants who don't take probation seriously may be at risk of jail time if they violate probation. If probation is revoked, you don't get a chance to retry your case. Instead. you may be immediately sentenced to the original sentence.
Can I Get Informal Probation Instead of Formal Probation?
It is up to the court to determine whether to impose formal probation or informal probation. In general, informal probation is more likely for misdemeanors and non-violent offenses. In some cases, your criminal defense attorney can negotiate the terms of probation to help you avoid formal probation, get a shorter probation term, or reduce the restrictions of probation.
Experienced Criminal Defense Attorney
Lynn Gorelick has more than 39 years of East Bay criminal defense experience and understands the penalties involved with California misdemeanor criminal charges. She understands how to approach the individual facts of each case for the greatest chance of success to keep her clients out of jail. If you are facing criminal charges anywhere in Oakland, Alameda County, or Contra Costa County, contact Lynn Gorelick.