In simple terms, a probation violation is when you violate one of the terms and conditions of your probationary sentence. A common example is failing to perform court-ordered community service.
Most jurisdictions acknowledge two types of probation. These are:
- misdemeanor probation (or “summary probation” or “informal probation”) for misdemeanor convictions, and
- felony probation (or “formal probation”) for felony convictions.
Probation violations can happen with either type.
If you violate your probation, you can be subject to arrest and authorities or a probation officer can bring you to court.
In most cases, a judge will hold a probation violation hearing to determine whether or not you in fact violated your probation. This hearing is also known as a “probation revocation hearing.”
If a judge finds that you violated your probation, then he/she may:
- reinstate your probation on the same terms and conditions,
- modify the conditions of probation with new, stricter terms, or
- revoke the probation and place you in custody.
Note that you can challenge a probation violation by presenting:
- evidence that shows you did not commit a violation, and/or
- mitigating evidence to lessen any punishment if a violation did take place.
1. What is a probation violation?
A probation violation occurs when a defendant in a criminal case:
- is convicted of a crime,
- is placed on probation as a penalty for that conviction, and
- violates a specific term or condition of that probation.
You can violate your probation no matter if you are on:
- misdemeanor probation,
- felony probation, or
- probation for a DUI offense.
Note that “probation” itself is where an offender, facing a possible jail sentence or prison sentence, is released into the community in lieu of incarceration.1
The length of probation will vary depending on the facts of a case and the specific crime committed. But it typically can last several years.
During this probation period, you must comply with certain terms and conditions, such as:
- obeying all laws,
- going to counseling,
- paying restitution, or
- performing community service.2
While offenders on misdemeanor probation are usually supervised by the court, offenders on felony probation are often supervised by a probation officer.
2. What are common grounds for a probation violation?
Some common grounds for violations of misdemeanor probation include an offender’s failure to:
- pay fines and/or victim restitution,
- participate in individual or group therapy,
- complete community service,
- seek gainful employment, and
- comply with a restraining order (typically imposed in domestic violence cases).
Some common grounds for violations of felony probation include an offender’s failure to:
- meet with his/her probation officer,
- pay restitution,
- participate in individual or group therapy,
- complete a treatment program,
- comply with a drug test,
- perform community service or community labor, and
- agree to submit to peace officer searches of his/her person or property.
3. What happens if you violate your probation?
If there is probable cause to believe you violated any terms or conditions of your probation, most states say that you are subject to arrest.3
Depending on the facts of the case and the jurisdiction where the violation took place, the arrest can be initiated by a:
- probation officer,
- parole officer, or
- police officer.
Once arrested, a judge will typically hold a probation violation hearing.4
During this hearing, a prosecutor has the burden of showing, by a preponderance of the evidence, that you violated a probation term.5
If a prosecutor meets this burden, then most jurisdictions say that a judge may:
- reinstate your probation on the same terms and conditions that were in effect prior to the violation,
- modify the conditions of your probation with new, stricter terms, or
- revoke the probation and make you complete any jail time or prison time that you originally had to serve before probation was granted.6
Note that sometimes you can violate probation by committing a criminal offense (for example, failing a drug test after using an illegal substance).
In these case, you can face both:
- a probation violation hearing, and
- criminal charges for the new criminal offense.
If you are convicted of a new crime, you can face penalties for that offense along with the penalties for the crime that resulted in probation.
4. How do I challenge my probation violation?
Probationers can use various strategies to beat an accusation of violating probation. Two of the most effective include to:
- present evidence that shows that you did not violate your probation, and
- present mitigating evidence to lessen any punishment if a violation did take place.
You would present both pieces of evidence at your revocation hearing.
Please note that you should work with a skilled criminal defense attorney to contest a violation. A criminal defense lawyer or probation violation attorney will know the best evidence to present to a judge.
A defense lawyer will also know the best legal strategies to use to keep you out of jail or prison and serve out your probation time.
Most attorneys and law firms provide free consultations, which means you can receive legal advice at no cost.
Further, your communications with a lawyer are usually protected by the attorney-client relationship. According to this relationship, a lawyer cannot disclose your confidences without first obtaining your consent.
Legal References:
- Black’s Law Dictionary, Sixth Edition – “Probation.”
- See same.
- See, for example, Florida Statutes 948.06.
- See, for example, California Penal Code 1203.2 PC.
- Note that a “preponderance of the evidence” standard is a lower burden of proof than the “beyond a reasonable doubt” standard that applies in criminal trials.
- See, for example, Arizona Rules of Criminal Procedure 27.8(c).
