Violation of Probation & California Law by Criminal Defense Attorney

California Violation of Probation Consequences PC 1203

Probation violations in California can lead to very serious criminal consequences. The authority to grant probation and availability of being placed on probation is found California penal code section 1203.

The term probation means that your sentence for an underlying criminal conviction is suspended or placed on hold. This suspension of "execution of sentence" means that the judge will hold off on sentencing the defendant so long as the defendant completes a series of promises. 

Typical probation terms include violate no law, pay fines, serve a jail sentence, restraining orders, attend classes (such as DUI, child abuse, AA, domestic violence, etc.), register with local authorities (such as a sex offender, drug offender, arsonist, gang member, etc.).

The most confusing part of probation is that a defendant can be placed on probation and still be ordered to go to jail; however, remember that the probation requirement (or term of probation) to attend jail (whatever the amount of jail time is ordered) is less than what the defendant would have served if he had not been placed on probation and was instead sentenced to jail on the underlying crime. (a little confusing, I know:).

When a defendant violates his or her probation he does so either "technically" or "substantively." A "technical violation of probation means that the defendant didn't do something he was ordered to do as a term of probation, but whatever it was that the defendant did does not amount to a new crime. For example: not paying a fine, not turning himself into jail, not signing up for an electronic bracelet, etc., are all examples of "technical" violations of probation.

A "substantive" violation of probation means the defendant committed a new crime. For example: While on probation for DUI the defendant substantively violates his probation by being arrested for a new DUI. The important distinction here is that "substantive" violations of probation are treated more harshly by prosecutors and judges than "technical" violations of probation. (not to mention the defendant is facing the new criminal charges on the new crime that lead to the violation of probation).

How much jail time can I get for violation of probation?

How much jail time a defendant might receive if it is proved that he or she violated probation depends on the underlying crime that lead to the probation sentence in the first place. For example: If the defendant was facing three years on a felony DUI charge, but instead was placed on probation with an order to serve sixty days, the defendant will face up to three years on the underlying DUI charge if he violates probation (with credit for the sixty days of course).

A defendant may be placed on probation for misdemeanor charges and most felony charges in California. Note: Some serious and violent felonies are not eligible for probation sentences without good cause and under unusual circumstances. 

For misdemeanor probation violations the defendant can usually have a criminal defense attorney appear for him or her to explain the reasons for the violations. A criminal defense attorney can often times get the defendant reinstated on the original terms and conditions of probation if there have not been too many reinstatements in the past (this assumes a "technical" probation violation). Of course, if the defendant violated a law and the violation of law lead to the probation violation then the criminal defense attorney will have to deal with the new criminal charge as well. 

For felony violation of probation charges the defendant will usually have a "no bail" warrant and he or she will be fighting the violation of probation criminal charges from jail (at least until a criminal defense attorney establishes a bail amount after the first hearing known as a Vicker's Hearing).

It's easy to violate probation when a defendant can not keep up with fines, classes, etc., but as this criminal defense attorney was quickly reminded by a judge. He [the judge] can "easily fix the problem by revoking the defendant's probation and sentencing him or her on the underlying criminal charge." 

When the defendant violates his or her probation the judge or the District Attorney will generally allow reinstatement of probation on the same terms and conditions 'but with some modifications' such as more jail time, more fines, more classes, etc.

When the defendant violates his or her probation it is almost always beneficial for the defendant to get reinstated right away (this is for a "technical" violation of probation). This is because the judge can usually understand that a person missed a class (such as a DUI class), forgot to pay a fine, etc. But the judge and the prosecutors usually don't understand when the defendant waits months before returning to court after missing the class or paying the fine. 

For "substantive" violations of probation the defendant should never attempt to proceed to court without an attorney. For these types of violations of probation a criminal defense attorney should be contacted without delay.

Can I have my probation terms changed?

After a defendant is placed on probation it may be possible in California to have the probation terms changed or modified. It may also be possible to reduce the length of probation. For example: changing the end date for DUI classes to be completed by, or shortening the number of years a person is placed on probation.

What does informal probation, summary probation, and misdemeanor probation mean?

The terms summary probation, informal probation, and misdemeanor probation all mean the same thing. It simply means that the defendant is on probation with the court and that the defendant does not have a probation officer. 

Felony probation is when the defendant commits a felony and he or she is placed on probation (as opposed to being directly sentenced to jail or prison). Felony probation may have terms such as "serve jail time" just like misdemeanor probation. The big difference between felony and misdemeanor probation is that under felony probation the defendant has a probation officer who comes to check on the defendant while the defendant is on felony probation. Sometimes the defendant, while on felony probation, must check into the probation office and regularly speak to his or her probation officer. The felony probation officer can drug test the defendant and can generally take the defendant into custody if the felony probation officer finds that the defendant is in violation of his or her probation terms.

What happens if my probation is revoked?

After a formal hearing to determine whether or not the defendant violated his or her probation (known as a Vicker's Hearing) the judge will make a decision (not a jury) whether or not the defendant violated his or her probation. When the judge is making this decision he or she will use the "preponderance of evidence" standard. Which means that if the judge decides more likely than not that the defendant violated his probation the judge is going to find the defendant guilty. The judge does not use the "beyond a reasonable doubt" standard used by juries when the judge is determining whether or not the defendant violated his or her probation.

If the judge finds that the defendant violated his or her probation (after a formal Vicker's hearing or after the defendant admits guilt) the judge will sentence the defendant. The judge will sentence the defendant up to the maximum jail sentence allowed under the law for the underlying crime (the judge doesn't have to sentence the maximum but he or she can if the judge finds aggravating circumstances). If the judge finds mitigating circumstances at sentencing for a violation of probation the judge can reinstate the defendant on probation with modified terms or he can sentence the defendant to the minimum amount of jail time under the law and according to the underlying crime (every crime is difference with respect to how much jail or prison time a defendant may face).

Do I get credit for the jail time I already served if I violate my probation?

Yes. For example, if the defendant was placed on probation and orderd to served 100 days, and the underlying crime carried a one year maximum sentence, then the defendant can only be sentenced up to one year WITH CREDIT for the 100 days if the defendant is found to be in violation of probation. Of course, if the defendant never served his time on the underlying case then obviously he will not get credit for the days he was ordered to serve but never actually served.

What happens if I am found in violation of probation and the judge sentences me to jail or prison?

If the defendant admits his guilt, or if he is found guilty of being in violation of probation, after a formal Vicker's hearing the defendant may be sentenced to jail or prison by the judge (judge doesn't have to sentence the defendant to prison or jail but he or she will have that option after a finding of guilt to a violation of probation). 

IF the judge sentences the defendant to jail or prison for a violation of probation the defendant will no longer be on probation (remember that probation is in lieu of sentencing on the underlying crime and I totally understand that this point is a little confusing:). Instead, the defendant will be placed on parole (the subject on parole and parole violations is not contained in this blogpost; however, be aware that there is a difference between probation and parole in California. Parole is a period of time after the defendant is released from PRISON or "COUNTY PRISON" after serving his or her felony sentence.  

If the defendant was sentenced on a misdemeanor violation of probation then the defendant will not be on probation after serving his or her sentence. There is no parole period after a misdemeanor sentence.

Can I leave the state if I am on probation?

For informal probation, summary probation, and misdemeanor probation (all mean the same thing) the defendant is rarely prohibited from leaving the state of California (but the terms of probation can include a travel restriction in certain cases); however, in felony probation cases, the defendant must get permission from the probation officer in California AND the probation department of the state or area where the defendant intends to visit. The defendant may permanently change his or her probation location if the defendant is moving BUT the defendant again must get permission from the probation department AND the court. The process for moving the defendant's probation to another state or county requires forms from the probation department (who will usually file the forms on your behalf with the court and the receiving probation departments).

What is the court procedure if I violate probation in California?

What happens to the defendant when he or she violates probation depends on several factors. For felony violations of probation, the defendant will have a court hearing within a reasonable time of his or her arrest on the violation of probation charge. At the hearing the defendant may request a Vicker's Hearing wherein he or she can defend against the probation violation charges. This is always done through a criminal defense attorney and the defendant should never proceed on a felony probation violation hearing without a criminal defense attorney. For misdemeanor violations of probation the defendant will usually be cited if he or she is pulled over by the police. The citation will set the court date and before the court date the defendant should seek the advice of a criminal defense attorney (sometimes the defendant will be taken into custody on a misdemeanor warrant for violation of probation charges but it is not common).

In either case of felony or misdemeanor probation violations, the court sends notice to relevant law enforcement and other government agencies of the fact that the defendant has a warrant for his or her arrest. These government agencies include professional licensing agencies and the DMV (the DMV will place a hold on the defendant's license for violation of probation where the underlying crime involved a vehicle).

Can the police search me without consent while I'm on probation?

In felony cases, the defendant almost always gives up his or her Fourth Amendment Rights against illegal search and seizure, which means the probation officers and other law enforcement officers do not need to get your permission to search you while your on probation. This include a search of your home (probation officers usually just show up at the defendant's home request to enter; if the defendant objects he will be found to be in violation of probation as he did not cooperate with the probation officers). For misdemeanor probation, the defendant rarely gives up his or her Constitutional Rights against unreasonable searches and seizures, which means that law enforcement does not have the right to search the probationer while he or she is on misdemeanor probation (in most cases).

How do I get a new probation officer?

For defendants who are on felony probation, AKA "probationers," the defendant may request a new probation officer when the defendant feels that the probation officer is being arbitrary or capricious about how he monitors the probationer. In most cases, the probation officer will object without a modification by court order. The reality is that the defendant may have to file a modification of probation motion with the court to change the probation officer.

What should I do if I violated my probation in California?

If you have violated your probation in California, either by not doing what you were supposed to do according to your probation terms or by committing a new crimes, you should contact a criminal defense attorney with experience in violation of probation matters.

Criminal Defense Attorney Christopher Dorado is an experienced and aggressive criminal defense attorney. 100% of attorney Dorado's practice is dedicated to criminal defense and initial consultations are provided at no cost to the accused.  Attorney Dorado practices criminal defense in the counties of San Bernardino & Riverside, including the cities of Rancho Cucamonga, Fontana, Chino, Upland, Redlands, Ontario, Victorville, Hesperia, Yucaipa, Riverside, Beaumont, Moreno Valley, Appley Valley, and more. Call today!

909.913.3138

Please visit our criminal defense websites for PC 1203 Probation Violations, DUI charges, Sex Crimes, and Criminal Defense in general.