“MY PROBATION OFFICER WANTS TO VIOLATE ME.” UNDERSTANDING PROBATION VIOLATION AND PROBATION DETENTION HEARINGS
The end result of many criminal cases that are plea bargained or that end in a conviction, especially when the defendant has only a minor criminal record, is the imposition of a term of probation. Typically, after a guilty plea or continuance without a finding (CWOF), the defendant leaves the courtroom and proceeds to the probation department to meet his or her probation officer, to be informed of the specifics of the probation, and to sign a form entitled Order of Probation Conditions, which memorializes the requirements of probation. The Order of Probation Conditions form is a single page, consisting of several sections.
The first section sets forth the probationer’s identifying information, and states the total length of probation and the disposition of the case (guilty or CWOF). The second section sets forth what are known as General Conditions of Probation. These include no-brainers such as “obey all court orders and laws, including any child support order,” and “report to your probation officer as requested and don’t lie to him or her,” but also such requirements as notifying the probation officer within 48 hours if the probationer changes residential addresses. The second section of the form imposes 3 additional obligations that are specific to what is known as “supervised probation,” including allowing your probation officer to make a home visit without notice, reporting to probation within 48 hours of being released from any correctional facility, and not leaving Massachusetts without permission.
The third section sets forth what are known as “Special Conditions of Probation,” and these may include some or all of the following conditions, namely:
- maintain employment or stay in school;
- submit to a substance abuse evaluation;
- submit to random drug and/or alcohol screens;
- submit to a mental health examination;
- complete a domestic batterer’s class, anger management class, or Driver Alcohol Education class;
- stay away from a certain person;
- perform community service; and
- submit to home confinement (with or without GPS monitoring).
The final section sets forth any fees and/or restitution payments that are ordered. The probationer signs a copy of the Order of Probation Conditions, and must be given a copy thereof.
If, sometime later, the probationer fails to comply with all of the conditions of probation ordered by the judge, then the probation officer may issue a Notice of Probation Violation and Hearing. The probation officer will typically either hand a copy of the Notice to the probationer at one of their regular meetings, or will mail the Notice to the address on file for the probationer. The Notice has checkboxes for the following violations that may be alleged, to wit:
- violation of the law;
- failure to complete a required program;
- failure to comply with drug and/or alcohol testing;
- failure to make payments on time; and
- failure to report to the probation officer as requested.
There is also a blank catch-all checkbox where the probation officer can allege any other probation violation.
If the probation officer thinks that the violations are serious enough, in light of the charge(s) for which the probationer is on probation, then the probation officer may also issue what is called a Notice of Probation Detention Hearing, which is very similar to the Notice of Probation Violation and Hearing form, but also advises the probationer that the probation officer is asking the judge to hold the person in jail without bail pending disposition of the alleged probation violation. Typically, once the judge realizes that the probation officer is requesting a “detention hearing,” the judge will order the probationer placed into court custody until the hearing is over later that day. If, at the end of the detention hearing, the judge does not order the probationer detained, then he or she is released to return on some future date for the probation violation hearing, at which hearing the probation officer has the burden to prove a probation violation by a preponderance of the evidence (50.0001%)
If the judge finds probable cause to believe that the probationer violated probation, and further decides to detain the person without bail, then the probation violation hearing will usually be set for less than 30 days in the future, and the probationer will be in jail until then.
Generally speaking, a probation officer usually doesn’t seek detention if the probation resulted from minor criminal conduct, and if the violation of probation was minor, such as late payments, testing positive for non-narcotic substances on a single occasion, or being charged with a minor crime, such as operating a motor vehicle without a license. Of course, practices vary from court to court.
At the eventual probation violation hearing, the probationer usually agrees that he or she violated the terms of probation, and often the probationer and probation officer can come to an agreement beforehand regarding a suggested punishment for the judge to order. Oftentimes, if the probationer admits to violating probation, an agreement can be reached whereby the probationer is “reprobated” to an extended date. Sometimes, an extra fee or program can be agreed-upon. However, the judge does not have to order what the probation officer asks for, even if the probationer agrees. The judge can impose any punishment up to the maximum allowed for the underlying crime. Nevertheless, in light of the low burden of proof at violation hearings, it is often useless to contest the fact that the violation happened, and it is often better to emphasize all of the things that the probationer did well while on probation, i.e., all of the probation conditions that the probationer didn’t violate.
If the probation is related to a CWOF, then the judge upon finding a violation may simply revoke the CWOF, enter a guilty on the probationer’s record, and allow probation to continue. The fact of incurring a conviction is seen as punishment enough in that case. The judge might also simply sentence the probationer to a term of incarceration after revoking probation. At the other end of the spectrum, the judge might order probation “terminated” unsuccessfully, which simply ends probation and lets the probationer go free and unfettered. This is most commonly the result where the probation period was very long, and was very near to ending when the probationer committed a minor violation.
Because a probationer has relatively limited control over the outcome of a probation violation hearing (compared to a plea hearing), it is important for the probationer to insist on scrupulous conformance to the rules governing probation detention and violation hearings. Perhaps most important, from the perspective of a probationer alleged to have violated probation, is the rule of law that any alleged violation of probation conditions that is not listed on either the Notice of Probation Violation and Hearing or on the Notice of Probation Detention Hearing cannot be the basis – even partial basis – for any detention or probation revocation.
For example, if the probation officer mails the probationer a Notice of Probation Violation and Hearing form in which it alleged that the probationer failed to complete a required program and pay some fees, but then at the hearing the probation officer tells the judge that the probationer also failed a drug test, then the judge is not permitted to consider the alleged failed drug test. In fact, if the judge lists the drug test as even one reason of many for finding a probation violation, then the entire order is unlawful and subject to being vacated by an appellate authority.
It is important to bring this to the attention of the judge as soon as the probation officer violates the rule. It is especially important in cases involving not just a probation violation hearing, but also a detention hearing, since detention hearings often end (and even begin)with the probationer in handcuffs.
A final thought: probably the best way to stay out of jail if you realize that you are in violation of your probation conditions is to: (1) speak with a lawyer; and (2) communicate with your probation officer promptly. Probation officers are often willing to look the other way the first time, if the probationer is forthright and comes in and explains what’s happened and asks for help getting back into compliance. Very importantly, though: if you think you may have committed a crime, then it is really crucial that you speak with an attorney before deciding whether to tell probation about it. Remember: probation officers are law enforcement officers.
I have handled hundreds of probation cases, and am available to assist you through the process.
Attorney Kevin D. Quinlan
The Law Offices of Kevin D. Quinlan
2 South Main Street, Suite 201
P.O. Box 248
Uxbridge, MA 01569