Los Angeles Probation Violation Lawyer
When someone is first sentenced to probation, it feels like a second chance. A chance with serious restrictions to be sure. But it’s a far cry from prison time and it's a chance to have one’s life in better shape when the sentence is up. Now, facing a probation revocation hearing, all of that is jeopardized. Probation violation in California comes with a lot of risk, but a good criminal defense attorney can help work through it.
What is Probation in California?
Probation is a legal arrangement where a person is allowed to remain in the community under certain conditions, rather than being sent to jail or prison. In California, probation conditions can include things like regular check-ins with a probation officer, completing community service, attending counseling or treatment programs, and staying away from certain people or places. If a person on probation violates any of the conditions of their probation, they may face probation violation charges.
Some common examples of probation violations in California include:
- Failing a drug test: If a person is ordered to abstain from drug use as a condition of their probation, and they fail a drug test, they may be considered to have violated their probation.
- Failure to appear in court: If a person fails to appear in court as ordered, they may be in violation of their probation.
- Not completing community service: If a person is ordered to complete a certain number of community service hours as a condition of their probation, and they fail to complete them, they may be considered to have violated their probation.
- Failure to pay fines or restitution: If a person is ordered to pay fines or restitution as a condition of their probation, and they fail to do so, they may be considered to have violated their probation.
- Contact with prohibited persons: If a person is ordered to stay away from certain people as a condition of their probation, and they have contact with those people, they may be considered to have violated their probation.
- Committing new crimes: If a person commits a new crime while on probation, they may be considered to have violated their probation.
The Rules Have Changed
A person’s constitutional rights are still in effect at a probation revocation hearing. But they will be applied in different ways. The biggest change is that you no longer have to be found guilty beyond a reasonable doubt. Now, the burden of proof for the prosecution is the easier-to-prove more likely than not.
Why the change? The reason is that the individual in question has already been convicted of a crime and with the beyond a reasonable doubt standard. Presuming that conviction came with a prison sentence, that’s already what “should” be being served, at least in the eyes of the legal system. The probation was essentially a break the system offered.
Now, that doesn’t mean a court can whimsically revoke a probation that’s been granted. It still must be proven that probation is more likely than not. But the reduction from the roughly 95 percent certainty that goes with reasonable doubt down to the 50.1 percent certainty that comes with more likely than not…well, that’s a big change in the rules.
What’s more, the prosecution can introduce evidence under rules that are more lenient than the original trial. The biggest example is hearsay. Let’s say that at trial, your ex-spouse’s best friend told someone you were guilty. Unless that friend was willing to testify to that directly in court, then the original comments are not admissible. It’s just hearsay.
But now, at the probation revocation hearing this same friend of the ex-spouse says they saw you out at 2 AM when your probation-required curfew is 10 PM. Even if the friend won’t show up in court, the hearsay evidence is admissible. How seriously the court will take it will depend on the judge and the rest of the evidence, but the simple fact hearsay can be introduced is another factor working against the defendant.
Possible Penalties for Probation Violation in California
The most serious consequence of probation violation is being sent to prison for the original crime. Furthermore, let’s say someone was convicted but got less than the maximum. Their probation sentence was five years, but the judge had the option under sentencing guidelines to go for 10 years. The full 10 years is now back on the table.
Less severe options include extending the length of probation and additional conditions. For example, if evening curfew violations are the reason for the hearing, the judge may order additional community service as a means of requiring the defendant to be up early every morning.
The rules may have changed, and the potential consequences are certainly serious. But there are viable strategies for a defense depending on the situation.
It’s one thing to establish that a probation violation occurred. But per California law, that violation must be deemed by the court to be both willful and substantial. That is, the violation must have been done on purpose and it must have some real significance.
Let’s consider the case of someone who has a 10 PM curfew as part of their probation. Every night at that time, a probation office is knocking on their door. Another part of the probation is the need to have a job. This job gets out at 8 PM. It’s normally not a problem. Except for one night, the person is hungry and stops off for a late dinner on the way home. They still expect to be back by 9:30 or quarter to ten at the latest. Los Angeles traffic gets in the way, and they aren’t back until 10:30.
Is this really willful and substantial? While stopping off and not planning for L.A. traffic wasn’t particularly inspired, it wasn’t a deliberate violation of probation. The half-hour tardiness was probably not substantial. For this to rise to the level of a probation violation hearing, there would need to be something more.
Examples of something more might be the dinner being with known criminal associates from the defendant’s past. This would be substantial. Or a pattern of behavior–they’ve done this several times before and it’s starting to be seen as a sign of tacit disrespect for the terms of the probation. This would be willful.
Both elements–willful and substantial–have to be in play. And then the prosecution must show that it’s more likely than not the defendant is guilty. It might not be as high a bar as there was in criminal court. But a good defense lawyer can challenge the prosecution at every step of the way.
Shevin Law Group has spent nearly thirty years challenging prosecutors and making certain our clients’ legal rights are protected. We take nothing for granted and we fight with real legal tenacity at each step of the process. If you’re going for a probation revocation hearing, reach out to us. Even better, reach out to us when you’re charged with the initial crime.
Call today at (818) 918-5838 or contact us online to set up an initial consultation.
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