Probation Violations in San Diego
Imagine that at sentencing the court orders probation, a probationary period can last anywhere from one year to five years. This means that during this entire time you must adhere to all of the terms that the court has ordered as a condition of your probation. As part of your conditional release the court may order you to do something or to refrain from doing something. If at any point during your probationary period, you fail to adhere to a term of your probation, you will have violated your probation. Depending on the nature of the violation, the existence of prior violations, and the seriousness of the circumstances under which the violation occurred, you may have to go before the court for violating your probation. It is important that you understand that if this happens, you have a right to a probation violation hearing. At this hearing you need to be represented by a criminal defense attorney with experience handling probation violations and a reputation of obtaining reinstatement of probation.
Understanding Penal Code Section 1203.2
In San Diego probation violations are governed by Penal Code Section 1203.2, the law states that “at any time during the period of supervision of a person subject to any form of probation, if any probation officer or peace officer has probable cause to believe that the supervised person is violating any term or condition of his or her supervision, the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the supervised person and bring him or her before the court or the court may, in its discretion, issue a warrant for his or her rearrest.” This means that the court has complete discretion to decide what probation terms are appropriate for each offense and will enforce these specific conditions against the probationer. If you violate any of the terms that the court has ordered you to follow, you will be arrested for the offense of violating your probation.
What is a probation violation?
As a condition of your release, the court will order you to a probationary period during which time you must adhere to probation terms. These are terms that are imposed by the court requiring you either to do or refrain from doing something. If at any point during your probationary period, you fail to adhere to a term of your probation, you will have violated your probation. In other words, a probation violation is an offense that occurs when a probationer fails to comply with the terms set forth by the court during the probation period.
Misdemeanor vs. Felony Probation Violation
Probation is a sentencing alternative to confinement that requires the probationer to agree to comply with the specific conditions ordered by the court during the probationary period. The type of probation that the court will apply will be determined by the seriousness of the offense that you received a conviction for. If you were charged with a less serious offense and convicted of a misdemeanor then the court may apply summary probation. Under summary probation, the court will determine the specific terms of probation and supervise the probationer for the duration of the probationary period. The probationary period for a misdemeanor conviction can last anywhere from one to three years. If instead, you were charged with a more serious offense and convicted of a felony, the court may impose formal probation. Under formal probation the court will still determine the specific terms of probation but it will leave the supervision of the probationer to probation services. The probationary period for a felony conviction can last anywhere from three to five years.
What are the most common probation violations?
- Avoiding a Drug Test;
- Being in Possession or Under the Influence of Drugs;
- Committing a New Offense;
- Failing to Report to Probation Services;
- Failing to Pay Restitution;
- Ignoring a Protection Order;
- Leaving the County of Residence Without Permission;
- Missing a Scheduled Court Appearance;
- Not Completing Court Ordered Classes;
- Not Attending Court Ordered Counseling;
- Not Paying Court Fines on Time; and
- Testing Dirty for Drugs.
Determining Probation Violations
If it is alleged that you violated a term of your probation, the agency responsible for supervising you during the probationary term will have to decide whether to issue a warning or a warrant for your arrest. In making the determination, the agency will look at the specific term that was violated, the seriousness of the offense you were convicted of, any prior warnings, and the existence of other probation violations.
Probation Violation Hearings
If the supervising agency decides to arrest you for a probation violation, you have a right to have a formal probation violation hearing take place to address the allegations. The probation violation hearing will take place before the sentencing judge that ordered your probation. At the probation violation hearing you have a right to receive notice of the alleged violations, to be represented by an attorney, to submit evidence and witnesses in your defense. The prosecution will carry the burden of proving that you violated a probation term. The standard of proof that the prosecution will be held to is preponderance of the evidence. This means that in probation violation hearing, the prosecution only needs to prove that it is more likely than not that you violated a term of your probation. In other words, if the prosecution falls short of 51 percent, it is unlikely that you violated a term of your probation.
Probation Violation Penalties
If the sentencing judge finds that the prosecution met its burden and you did in fact violate a term of your probation, the court has complete discretion in deciding what penalty to impose. In making the determination the sentencing judge will consider the seriousness of the violation, the facts of the original conviction, and the circumstances that existed at the time of the probation violation. In addition, the sentencing judge will rely on the probation officer’s recommendation, the prosecution’s request, and the evidence that your attorney submitted.
What are the most common penalties for probation violations?
If you are found guilty of a probation violation, the sentencing judge can decide to apply any of the following penalties:
- Extend the Probationary Period;
- Modify Probation to Include Additional Probation Terms;
- Order Brief Confinement;
- Revoke Probation and Impose the Original Sentence;
- Revoke Probation and Impose the Maximum Sentence.
- What are the consequences of having a probation violation for expungement purposes?
Pursuant to California Penal Code 1203.4 a defendant is eligible for an expungement after a successful completion of probation. If you are found to be guilty of a probation violation, you are still eligible for an expungement so long as by the time you apply for an expungement of the conviction, you have completed the probationary period successfully. In effect, California does not require that you have an exemplary probationary period, simply that you not be serving a sentence and have successfully completed probation by the time that you apply for an expungement.
Probation Violation Criminal Lawyer in San Diego
Probation is a great alternative to confinement, however most probationary periods last anywhere from one year to five years. For many people on probation the challenge with probation is having to comply with certain conditions over this very long period of time. At Monder Law Group, we have vast experience handling probation violations and understand that over time and under certain circumstances it becomes easy to forget, ignore, or want to avoid a term of your probation. The thing you must remember is that probation violations are complex offenses because even the most minor violations can still carry serious consequences. You need a local criminal defense attorney that understands the process of probation violations and has experience handling probation violation hearings. Do not risk your liberty for a probation violation, contact San Diego criminal defense attorney Vik Monder to discuss the specific circumstances in your case, call now at (619)405-0063.