Probation Violation

Probation Violation

If you admit to a crime or are found guilty of a crime you are generally, but not always, placed on probation. You need to follow certain rules. Condition(s) of probation are the rules in probation. If you don't follow the rules you get a notified that you are in violation. And any violation of a condition can land you in jail for up to there full jail term of the criminal charge. The most common violation of your conditions of probation is a new criminal charge while on probation.

Phases of a Probation Violation Hearing

First, a judge, or in some cases the probation officer, determines that you should be taken into custody following a full hearing. In those cases the judge will look at the:

  • Nature of the violation
  • Severity of the conduct or violation
  • History of the probationer

The Final Hearing

Next, the court schedules the final probation hearing. The final hearing usually occurs between 30 or more days after the initial notification of a violation. At that revocation hearing the judge must determine whether or not the defendant actually violated probation and whether or not there is probable cause for a violation. Note that even in criminal court you do not need to be prove a probation violation beyond a reasonable doubt. Probable cause is the burden of proof.

The second portion of the hearing the judge must determine:

  • If a violation did occur
  • Whether or not to revoke the probation and sentence the defendant
  • Whether or not to modify the terms of probation.

Sometimes a judge will find a violation and not change anything. The important thing to remember is anytime there is a probation violation, the judge has a wide array of options. It is important to be prepared should the judge seek a more severe alternative.Lastly, in a probation violation hearings witnesses and accusers are not always required. In these hearings there is a relaxed standard for evidence and testimony so the normal rules of evidence do not apply. Like any case, it is important to prepare for every contingency, because whatever sentence the judge sets at the end of the hearing will be final.

After the court has determined that a violation of probation has occurred, the court can order any of the following for the probationer to:

  • Continue the conditions of probations as before
  • Terminate probation
  • Modify the conditions of probation
  • Revoke probation all together


Probation Violation Conditions of Release

District courts in Massachusetts will be changing the rules on Conditions of Release at probation violation hearings. These changes will go into effect this December. Since they may impact you or a loved one it is important to understand what will be different. Here is the new procedure.

What is a Probation Violation?

If you admit to a crime or are found guilty of a crime you are generally, but not always, placed on probation. When you are on probation you need to follow certain rules. Conditions of Probation are these rules. If you don't follow the rules you get notified that you are in violation.

What Happens When You Violate Your Conditions of Probation?

First, a judge or probation officer will determine if you have violated your Conditions of Probation. After you are notified you will go to court for a preliminary hearing to determine if you should be taken into custody. If the probation department requests that you be taken into custody, they will need to establish that there is probable cause to believe a violation occurred.

Even if the court determines that there is probable cause, there is a possibility that they will not detain you. Instead, the court may let you go if you follow a new set of rules called Conditions of Release.

What Are Conditions of Release?

If you follow your conditions of release you will stay out of jail before the final hearing. So, the court will only allow non-monetary conditions of release if they decided to detain you pending a final hearing. Your conditions of release could include anything listed here:

  • No contact. You may not contact a specific person or people, over the phone, in person, electronically, or in writing.
  • Stay away. You need to keep a certain distance away from a person, people, or locations.
  • Report as directed. You need to report to the probation departed at certain times and days to check in with them.
  • Electronic monitoring. This could include house arrest, curfew, or exclusion zones.
  • Required residence. You must live or stay at a specific address.
  • Abstinence and testing. You must stop consuming illegal and non-prescribed drugs and/or alcohol. You will be tested to ensure that you are clean.
  • Motor Vehicle Restrictions. You may not drive a vehicle at certain times, dates, or other conditions.

Remember that the court may assign you only one of these conditions or a combination. What you are assigned will depend on how serious your probation violation is.

What Happens If You Violate Your Conditions of Release?

If the court or probation department determines that you violated your conditions of release you may be summons or called to go back to court for another hearing. If there is probable cause, you may even be arrested.

When this hearing occurs the court will determine if there is probable cause to believe you violated your Conditions of Release. If they determine there was, the court may order you to be detained until your probation violation hearing is completed.

Conditions of Release are NOT the same as Conditions of Probation

Remember that Conditions of Release and Conditions of Probation are not the same thing. The difference is that the court could order Conditions of Release only after a probation violation occurs. If you are fortunate enough to not be taken into custody after a probation violation, it is important to do your best not to violate a condition of release so you do not end up in jail.

When is Your Final Probation Violation Hearing?

Unless there are special reasons, you will typically go to court within 30 days after the preliminary hearing for a final hearing on your probation violation. Your lawyer will speak with the probation department and present evidence on your behalf during this hearing. The court will then make a final determination on if you should be punished for a probation violation.


Probation Fees

Courts no longer can assess the monthly probation fee (either supervised or administrative) for the first six months of probation after release from a prison or a house of correction. After the first six months conclude, the court imposes fees unless waived. If waived, community service is no longer a requirement, but a judge often requires the defendant to perform community service regardless.

In addition, the amount of community service ordered now reduced to no more than four hours per month, for both supervised and administrative probation.

The law made changes to the “Assessment or Waiver of Moneys in Criminal Case” form.

Note that the changes eliminated parol fees for a defendant’s first year on parole.

Permitted Use of Prescribed Drugs

No person placed on probation violates a condition of probation, based:

  • Solely on possession or use of a controlled substance that has been lawfully dispensed by valid prescription to that person by a health professional registered to prescribe a controlled substance and acting within the lawful scope of the health professional’s practice
  • Solely on possession or use of medical marijuana, if that person:
    • Received a written certification from a healthcare professional for the use of medical marijuana to treat a debilitating medical condition
    • Possesses a valid medical marijuana registration card
    • Is possessing a quantity not greater than the amount recommended in the healthcare professional’s written certification.

Drug Possession When Seeking Medical Assistance

Immunity from prosecution for possession of a controlled substance, where the evidence was a result of seeking medical assistance, has been extended to prohibit finding a person in violation of a condition of probation or pre-trial release where the violation is connected to that person seeking medical assistance for a drug related overdose, either for themselves or others.

Moreover, this change does not prevent amending the conditions of probation for a defendant based on a material change of circumstances.

Committed Time for Unpaid Money

Before committing a defendant solely for non-payment of money, a judge holds a hearing at which counsel represents a defendant (and if indigent, no counsel fee required), to consider the person’s:

  • Employment status
  • Income
  • Financial resources
  • Living expenses
  • Number of dependents
  • Any special circumstances that may affect a person’s ability to pay

Moreover, if the defendant establishes, by a preponderance of the evidence, an inability to pay the fine without causing substantial financial hardship to the person or their immediate family or dependents, the judge is prohibited from committing the person. The court can instead impose an alternative to the fine, including, without limitation, community service.

If committed, the credit a defendant receives increased from $30 per day to $90 per day.


IF YOU OR A LOVED ONE HAVE BEEN ARRESTED, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE
CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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