~ Gerald Schwab
A violation of Probation can be a serious problem. As a former probation officer, and deputy district attorney and criminal defense attorney with more than 13 years of experience I know how to deal with the sometimes complicated issues that come from violations of probation.
WHAT HAPPENS IF I VIOLATE MY MISDAMEANOR PROBATION
A misdameanor violation of probation can result in you being put into the local county jail. Now you will not be put into prision because you are inelgible for prision. However, if you violate you probation you could be taken into custody with a hold on you until you go to court. Many times you cannot get out of jail until that violation of probation is lifted.
You maximum period of confinement for a misdameanor is either six months or one year depending on the offense. Why that is important is because if you violate your probation but have already served in custody the entire amount of time for that crime you cannot get more time. In other words if you have already spent six months in custody and that is the max you cannot get more custody time. In some counties when you violate your probation you will have a time in custody total on the violation making it easier for the court to asses your total time credits. Often the Probation Department will have someoen in the court to help with these issues. Remember that anytime you are on probation and commit another offense you can be held in violation of your probation. Example you got a dui in 2003 and in 2004 you were convicted of another dui you would be in violation of your probaiton.
DO I HAVE TO BE CONVICTED OF THE NEW OFFENSE TO BE IN VIOLATION OF MY PROBATION
The answer to that question is no. For a violation of probation, there is a different level of proof. A simple preponderance of the evidence is needed for a violation of probation. That means you could actually beat the underlying case and still have your probation violated.
WHAT HAPPENSE IF I VIOLATE MY FELONY PROBATION
There are several things which could occur if you violate your Felony Probation and all of them are more serious than the misdameanor consequences.
One option is that you could be sent to state prision. If you violate your probation while on Felony probation you could be sent to state prison to complete your sentence. What is worse the Judge could sentence you to any of three different sentences. For example if you have a Felony Assult. That crime carries 2-3- or 4 years.
If you violate your probation you could recieve any of those sentences. You would of course get time credits for any time you have already spent in custody.
You could be placed back on probation. If this occurs the Judge has the option of revoking and reinstating under the same terms as the previous grant of probation and order more terms of probation. This could include spending some time in custody at the Jail, or community service or alternative work program or a combination of the above.
The court could revoke and reinstate but set your probation out another 2 or 3 years. This means you would be getting off probation much later than you expected because your probation has been extended. And of course you would get credit for the time you have already served in custody.
This article does not deal with post release community service and pro 47 and split sentences and all of the other things that can now occur since the changes in the law.
Gerald Schwab, Jr.
CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA