If you are suspected of violating the terms of probation, the court will hold a hearing to determine if probation should be revoked and you should be sent to jail.
If you win your probation violation hearing, you can continue to avoid jail time if you follow the conditions of probation.
If you lose the hearing, you could be sentenced to jail or prison for up to the maximum term for the crimes of which you had been convicted.
In this article, our Colorado criminal defense lawyers will address:
- 1. What is a “probation violation hearing” in Colorado?
- 2. Who reports a probation violation?
- 3. What are common probation violations reported in Colorado?
- 4. What is the court process for a probation violation hearing?
- 5. What is the standard of proof in a probation violation hearing?
- 6. How does the judge decide whether I violated probation or not?
- 7. What happens if I lose a probation violation hearing?
- 8. Can you appeal a probation violation decision?
If you are reported for violating the terms of probation, the court will hold a hearing to determine if probation should be taken away and you should be sent to jail.
1. What is a “probation violation hearing” in Colorado?
A probation violation hearing is a court hearing to determine if your probation should be
- revoked,
- remain in place, or
- subject to different conditions on your release.
Probation in Colorado is an alternative to jail. Anyone in Colorado convicted of an offense (other than a Colorado class 1 felony or a Colorado civil infraction) is eligible to apply for probation, with some exceptions.1
If probation is granted, you can avoid jail or prison time as long as you follow the conditions ordered by the court. The terms and conditions will depend on a number of factors, including:
- The seriousness of the offense
- Nature of the crime
- Criminal history
- The financial impact of the crime
- Types of victims involved 2
The Colorado Probation Department (CPD) in your county will be in charge of supervising you during your time on probation. If you violate the conditions of your probation, fail to report for probation, or are arrested for another crime, you may have a probation violation hearing to determine whether your probation should be revoked and you’ll be sent to jail.
2. Who reports a probation violation?
In most cases, the probation officer (P.O.) reports the violation to the court. Depending on the type of violation, the P.O. may simply talk to the individual about a minor violation, issue a summons, or have the individual arrested and taken to court.
The prosecutor may then file a “Motion to Revoke Probation” (MRP) for violating the terms of probation.
Probation violations can also be reported to the P.O. by anyone aware of the violation, such as an employer or the victim of a crime. For example:
Example: Charlie is on probation after a domestic violence assault on his ex-girlfriend, Becky. As part of Charlie’s probationary conditions, Charlie is not supposed to contact Becky. While on probation, Charlie visit’s Becky’s workplace to say he is sorry for what happened. Becky reports Charlie’s visit, which is in violation of his probationary conditions.
3. What are common probation violations reported in Colorado?
There are many types of probationary conditions. The court can impose any conditions in its discretion that the court deems “reasonably necessary to ensure the defendant will lead a law-abiding life and to assist the defendant in doing so.”3
When the defendant is granted probation, he or she will be given a written statement detailing the probation conditions. This statement should explicitly set forth the probationary conditions so the defendant understands what type of actions are prohibited.4
Probationary conditions depend on a number of factors, depending on the defendant’s criminal history and the type of crime involved. However, every sentence shall contain the explicit condition that the defendant:
- Not commit another offense during the probationary period;
- Pay restitution to the victim(s);
- Not harass, intimidate, or tamper with any victim or prosecution witness;
- Comply with substance abuse testing and treatment; and
- Comply with any court orders regarding the treatment of sex offender registration.5
General Probation Conditions
There are many other general probationary conditions the court can impose. These include:
- Working faithfully at a suitable employment.
- Pursuing a course of study or vocational training.
- Undergo available medical or psychiatric treatment and remain in a specified institution if required for that purpose.
- Participate in restorative justice practices, like community service or victim/offender mediation.
- Financially support dependents and meet other family responsibilities.
- Pay costs of the court proceedings and supervision.
- Pay any fines or fees imposed by the court.
- Repay reward paid by a crime stopper organization.
- Refrain from possessing a firearm or other dangerous weapon.
- Refrain from excessive use of alcohol or any unlawful use of controlled substances.
- Report to a CPC probation officer (PO) as directed by the court or the officer.
- Permit the PO to visit the defendant at reasonable times at the defendant’s home and elsewhere.
- Remain within the jurisdiction of the court, unless granted permission to leave.
- Answer all reasonable inquiries by the PO.
- Promptly notify the PO of any change in address or employment.
- Be subject to home detention.
- Be subject to electronic or global position monitoring.678
It’s also a common requirement to reside only in the county where the conviction and probation are based. However, it can be possible to get probation transferred to and from Colorado and another state.
Domestic Violence Convictions
In cases of domestic violence, including stalking or harassment, the court can impose additional conditions of probation. These terms include:
- Comply with existing court orders regarding family support;
- Comply with any existing court orders concerning a proceeding to determine paternity, custody, the allocation of decision-making responsibility, parenting time, or support;
- Comply with the terms of any protection order in effect against the defendant during the probationary period;
- Refrain from possessing a firearm, destructive device, or other dangerous weapon, unless granted written permission by the court or PO.9
Probation Requiring Drug Treatment
The court can include, as a condition of probation, a requirement that the individual participate in a substance abuse treatment program. If the substance abuse assessment determines the individual needs residential treatment, the court can make residential drug treatment a condition required by the court.10
In some cases, there is a medical marijuana exemption for the general probationary condition against the use or possession of drugs. The possession or use of legal medical marijuana may not necessarily be considered an offense that constitutes a violation of the probationary terms.11
Probation for Defendants Under the Age of 18
Some defendants under the age of 18 are tried and convicted as adults. There may be special probationary conditions for defendants who are under 18, including the requirement to attend school or an educational program or to work towards a high school diploma or equivalency examination.12
4. What is the court process for a probation violation hearing?
If you violate any of the terms of your probationary release, you may be arrested on a “no bond” warrant and taken into custody. The prosecutor will then file a “Motion to Revoke Probation” (MRP) for violating the terms of probation. This motion will be heard before the court in a probation violation hearing.
You have the right to an attorney during your probation violation hearing. A violation hearing will be like a mini-trial before a judge instead of a jury. The prosecutor will present evidence of a violation and your attorney will have a chance to respond to the allegations. The judge will then determine as to whether:
- Your probation should be revoked and you will be returned to custody to serve out your sentence.
- The motion will be denied and you will continue the terms of your probation.
- You will continue probation but the judge will change terms of your or add additional conditions and restrictions.
The court process for a probation revocation hearing is set out in C.S.R. 16-11-206. At the first appearance, the court shall advise the probationer of their rights, including that there is no right to trial by jury.13
The court will advise the probationer of the charges against him or her and the possible penalties, requiring the probationer to plead guilty or not guilty.14
5. What is the standard of proof in a probation violation hearing?
The standard of proof is the level of evidence required to establish proof in a criminal case. For a criminal conviction, the standard of proof is generally “beyond a reasonable doubt.” Beyond a reasonable doubt means there is no “doubt based upon reason and common sense which arises from a fair and rational consideration of all the evidence, or the lack of evidence.”15
However, the standard of proof in a probation violation hearing may be lower than “beyond a reasonable doubt.” In most cases, the standard of proof in a probation violation hearing is “by a preponderance of the evidence.” If the judge is reasonably satisfied that the individual violated the probational conditions based on the evidence presented, the judge can grant the motion to revoke probation.
How does a prosecutor prove a probation violation?
The prosecutor will generally base his or her case on the PO’s violation complaint, report, and memorandum. The prosecutor will present evidence of the probational violation, including any criminal records or testimony.
The prosecution has the burden of establishing that the individual violated a condition of probation.16
For violations of failure to pay court-ordered compensation, costs, or fees, evidence of the failure to pay is “prima facie” evidence of a violation.17
If the individual is accused of committing another crime while on probation, that offense has to be proven beyond a reasonable doubt. However, the court can wait and continue the revocation hearing until after the criminal proceeding is finished.18
What evidence can the prosecutor use to show I violated probation?
The evidence that can be presented in a probation violation hearing is much broader than the evidence available in a criminal case. In a revocation hearing, the court can consider any evidence with probative value, “regardless of its admissibility under the exclusionary rules of evidence if the defendant is accorded a fair opportunity to rebut hearsay evidence.”19
For example, many types of evidence may not be admissible in a criminal court that are admissible in a violation hearing. This includes “hearsay,” or most out-of-court statements. In a probation violation hearing, hearsay evidence is admissible, as long as the individual has the chance to respond to the evidence.
In addition, unlike in a criminal trial, your right to remain silent under the 5th Amendment can be used against you. Refusing to answer questions, refusing to submit to chemical tests, or refusing to admit activity can be used as evidence against you in a probation violation hearing.
The prosecutor can present almost any type of evidence that would tend to show you were in violation of probation. This could include:
- Testimony by someone that you were involved in criminal activity;
- Video or photo evidence showing you in a prohibited location;
- Court records showing a violation;
- Drug treatment facility records showing you did not appear for treatment;
- Failed drug test results;
- Probation officer statement that you did not report as required;
- Criminal arrest records;
- Statement by an employer that you did not appear for work; or
- Any other evidence of probative value.
How can I defend against a probation violation?
Your attorney can use a number of tools to defend you in a probation violation hearing. As the defendant, it is the prosecutor who has the burden of proof. You do not necessarily have to prove you are innocent, only to show that the prosecutor has failed to prove his or her case by a preponderance of the evidence.20
In most cases, your defense can include a response to the evidence presented by the prosecutor. For example, your defense attorney can argue the witness statements were not reliable, there was a mistake in the identification of someone else, or that the drug test results were tainted or unreliable.
In addition, you can admit the violation and your defense attorney can negotiate to let you remain free from incarceration. This could include apologizing for a minor violation and showing that you have taken steps to make sure this type of violation will not occur in the future.
6. How does the judge decide whether I violated probation or not?
After considering all the evidence and arguments, the judge will make a determination whether to grant the motion to revoke probation or deny the motion. The judge can also release you on probation on condition of additional terms and requirements.
7. What happens if I lose a probation violation hearing?
The court will issue a decision within seven (7) days after the hearing to either revoke or continue probation.21
If the judge decides that you violated probation, the court shall either revoke or continue the probation. If the judge revokes your probation, the court can then impose any sentence or grant any probationary terms which might have been originally imposed.2223
8. Can you appeal a probation violation decision?
You can appeal the court’s decision to revoke probation. However, the grounds for an appeal are very limited. This generally requires some procedural violation. If you believe your probation was unjustly revoked, talk to an attorney as soon as possible about your options.
Legal References
- C.R.S. 18-1.3-201 Application for probation (“(1)(a) A person who has been convicted of an offense, other than a class 1 felony or a civil infraction, is eligible to apply to the court for probation.”). Prior to March 1, 2022, people convicted of a class 2 petty offense were ineligible for probation. SB21-271.
- C.R.S. 18-1.3-202 Probationary power of court (“(1) When it appears to the satisfaction of the court that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, the court may grant the defendant probation for such period and upon such terms and conditions as it deems best. The length of probation shall be subject to the discretion of the court and may exceed the maximum period of incarceration authorized for the classification of the offense of which the defendant is convicted but shall not exceed five years for any misdemeanor or petty offense.”)
- C.R.S. 18-1.3-204 Conditions of probation (“(1)(a) The conditions of probation shall be such as the court in its discretion deems reasonably necessary to ensure that the defendant will lead a law-abiding life and to assist the defendant in doing so. The court shall provide as explicit conditions of every sentence to probation that the defendant not commit another offense during the period for which the sentence remains subject to revocation, that the defendant make restitution pursuant to part 6 of this article and article 18.5 of title 16, C.R.S., that the defendant comply with any court orders regarding substance abuse testing and treatment issued pursuant to sections 18-1.3-209 and 18-1.3-211 and article 11.5 of title 16, C.R.S., and that the defendant comply with any court orders regarding the treatment of sex offenders issued pursuant to article 11.7 of title 16, C.R.S. The court shall provide as an explicit condition of every sentence to probation that the defendant not harass, molest, intimidate, retaliate against, or tamper with the victim of or any prosecution witnesses to the crime, unless the court makes written findings that such condition is not necessary.”)
- C.R.S. 18-1.3-204 Conditions of probation (“(3) When a defendant is granted probation, he or she shall be given a written statement explicitly setting forth the conditions on which he or she is being released.”)
- C.R.S. 18-1.3-204, see footnote 3 above.
- C.R.S. 18-1.3-204 Conditions of probation (“(2)(a) When granting probation, the court may, as a condition of probation, require that the defendant: (I) Work faithfully at a suitable employment or faithfully pursue a course of study or of vocational training that will equip the defendant for suitable employment; (II) Undergo available medical or psychiatric treatment and remain in a specified institution if required for that purpose. In any case where inpatient psychiatric treatment is indicated, the court shall proceed in accordance with article 65 of title 27, C.R.S., and require the defendant to comply with the recommendation of the professional person in charge of the evaluation required pursuant to section 27-65-105 or 27-65-106, C.R.S. (III) Attend or reside in a facility established for the instruction, recreation, or residence of persons on probation; (III.5) Participate in restorative justice practices, as defined in section 18-1-901 (3)(o.5), if available in the jurisdiction, and the defendant is determined suitable by a designated restorative justice practices facilitator. If a defendant wants to participate in restorative justice practices, the defendant must make the request to the district attorney or the law enforcement agency administering the program and may not make the request to the victim. If requested by the defendant, district attorney, or law enforcement agency, a victim-offender conference may only be conducted after the victim is consulted by the district attorney and offered the opportunity to participate or submit a victim impact statement. If a victim elects not to attend, a victim offender conference may be held with a suitable victim surrogate or victim advocate, and the victim may submit a victim-impact statement. To be eligible for restorative justice practices, the defendant shall not have been convicted of unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S., a crime in which the underlying factual basis involves domestic violence, as defined in section 18-6-800.3 (1), stalking as defined in section 18-3-602, or violation of a protection order as defined in section 18-6-803.5. Any statements made during a restorative justice conference shall be confidential and shall not be used as a basis for charging or prosecuting the defendant unless the defendant commits a chargeable offense during the conference. Failure to complete the requirements arising from a restorative justice conference may be considered a violation of probation. Nothing in this subparagraph (III.5) shall be construed to require a victim to participate in restorative justice practices or a restorative justice victim-offender conference. (IV) Support the defendant’s dependents and meet other family responsibilities, including arranging and fulfilling a payment plan for current child support, child support arrearages, and child support debt due under a court or administrative order through any delegate child support enforcement unit that may have a child support case with the defendant; (V) Pay reasonable costs of the court proceedings or costs of supervision of probation, or both. The probation supervision fee shall be fifty dollars per month for the length of ordered probation. Notwithstanding the amount specified in this subparagraph (V), the court may lower the costs of supervision of probation to an amount the defendant will be able to pay. The court shall fix the manner of performance for payment of the fee. If the defendant receives probation services from a private provider, the court shall order the defendant to pay the probation supervision fee directly to the provider. The fee shall be imposed for the length of ordered probation.”)
- C.R.S. 18-1.3-204 Conditions of probation (“(2)(a) When granting probation, the court may, as a condition of probation, require that the defendant: (VI) Pay any fines or fees imposed by the court; (VI.5) Repay all or part of any reward paid by a crime stopper organization that led to the defendant’s arrest and conviction in accordance with article 15.7 of title 16, C.R.S.; (VII) Refrain from possessing a firearm, destructive device, or other dangerous weapon unless granted written permission by the court or probation officer; (VIII) Refrain from excessive use of alcohol or any unlawful use of controlled substances, as defined in section 18-18-102 (5), or of any other dangerous or abusable drug without a prescription; except that the court shall not, as a condition of probation, prohibit the possession or use of medical marijuana, as authorized pursuant to section 14 of article XVIII of the state constitution, unless: (A) The defendant is sentenced to probation for conviction of a crime under article 43.3 of title 12, C.R.S.; or (B) The court determines, based on any material evidence, that a prohibition against the possession or use of medical marijuana is necessary and appropriate to accomplish the goals of sentencing as stated in section 18-1-102.5; (IX) Report to a probation officer at reasonable times as directed by the court or the probation officer; (X) Permit the probation officer to visit the defendant at reasonable times at the defendant’s home and elsewhere.”)
- C.R.S. 18-1.3-204 Conditions of probation (“(2)(a) When granting probation, the court may, as a condition of probation, require that the defendant: (XI) Remain within the jurisdiction of the court, unless granted permission to leave by the court or the probation officer; (XII) Answer all reasonable inquiries by the probation officer and promptly notify the probation officer of any change in address or employment; (XIII) Be subject to home detention as defined in section 18-1.3-106 (1.1); (XIV) Be restrained from contact with the victim or the victim’s family members in cases in which the defendant was convicted of a crime, the underlying factual basis of which included an act of domestic violence, as defined in section 18-6-800.3 (1); (XIV.5) Be subject to electronic or global position monitoring; (XV) Satisfy any other conditions reasonably related to the defendant’s rehabilitation and the purposes of probation.”)
- C.R.S. 18-1.3-204 Conditions of probation in domestic violence cases (“(2)(b) When granting probation, in addition to the consideration of the provisions set forth in paragraph (a) of this subsection (2), the court shall order as a condition of probation in cases in which the defendant was convicted of a crime, the underlying factual basis of which included an act of domestic violence, as defined in section 18-6-800.3 (1), that the defendant: (I) Comply with existing court orders regarding family support; (II) Comply with any existing court orders concerning a proceeding to determine paternity, custody, the allocation of decision-making responsibility, parenting time, or support; (III) Comply with the terms of any protection order in effect against the defendant during the probation period; (IV) Refrain from possessing a firearm, destructive device, or other dangerous weapon, unless granted written permission by the court or probation officer which shall not be granted in such domestic violence cases unless: (A) It is required by the defendant’s employment; and (B) The court finds that the defendant’s possession of the weapon does not endanger the victim or the victim’s children; and (C) The weapon is stored away from the home and the yard surrounding the home.”)
- C.R.S. 18-1.3-204 Conditions of probation related to drug treatment (“(2.2) When granting probation, the court may include as a condition of probation a requirement that the defendant participate in drug treatment. If the defendant’s assessed treatment need is for residential treatment, the court may make residential drug treatment a condition of probation and may place the offender in a community corrections program that can provide the appropriate level of treatment subject to the provision of section 18-1.3-301(4).”)
- C.R.S. 18-1.3-204 Conditions of probation (“(1)(b) Notwithstanding the provisions of paragraph (a) of this subsection (1), unless the defendant is sentenced to probation for a conviction of a crime under article 43.3 of title 12, C.R.S., the possession or use of medical marijuana, as authorized pursuant to section 14 of article XVIII of the state constitution, shall not be considered another offense such that its use constitutes a violation of the terms of probation.”)
- C.R.S. 18-1.3-204 Conditions of probation for under 18 (“(2.3) (a) When granting probation, the court may, as a condition of probation, require any defendant who is less than eighteen years of age at the time of sentencing to attend school or an educational program or to work toward the attainment of a high school diploma or the successful completion of a high school equivalency examination, as that term is defined in section 22-33-102 (8.5), C.R.S.; except that the court shall not require any such juvenile to attend a school from which he or she has been expelled without the prior approval of that school’s local board of education. (b) Following specification of the terms and conditions of probation for a defendant who is less than eighteen years of age at the time of sentencing, where the conditions of probation include the requirement that the defendant attend school, the court shall notify the school district in which the defendant will be enrolled of such requirement.
- C.R.S. 16-11-206 Revocation hearing. (“(1) At the first appearance of the probationer in court or at the commencement of the hearing, whichever is first in time, the court shall advise the probationer as provided in section 16-7-207 insofar as such matters are applicable; except that there is no right to a trial by jury in proceedings for revocation of probation.”)
- C.R.S. 16-11-206 Revocation hearing. (“(2) At or prior to the commencement of the hearing, the court shall advise the probationer of the charges against him and the possible penalties therefor and shall require the probationer to plead guilty or not guilty.”)
- Colorado Model Jury Instructions – Criminal (2017) E:03 Presumption of Innocence, burden of proof, and reasonable doubt (“The burden of proof is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt the existence of all of the elements necessary to constitute the crime charged. Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.”)
- C.R.S. 16-11-206 Revocation hearing. (“(3) At the hearing, the prosecution has the burden of establishing by a preponderance of the evidence the violation of a condition of probation; except that the commission of a criminal offense must be established beyond a reasonable doubt unless the probationer has been convicted thereof in a criminal proceeding. When, in a revocation hearing, the alleged violation of a condition is the probationer’s failure to pay court-ordered compensation to appointed counsel, probation fees, court costs, restitution, or reparations, evidence of the failure to pay shall constitute prima facie evidence of a violation. The court may, when it appears that the alleged violation of conditions of probation consists of an offense with which the probationer is charged in a criminal proceeding then pending, continue the probation revocation hearing until the termination of the criminal proceeding. Any evidence having probative value shall be received regardless of its admissibility under the exclusionary rules of evidence if the defendant is accorded a fair opportunity to rebut hearsay evidence.”)
- Same.
- Same.
- Same.
- Same.
- C.R.S. 16-11-206 Revocation hearing. (“(5) If the court determines that a violation of a condition of probation has been committed, it shall, within seven days after the said hearing, either revoke or continue the probation. If probation is revoked, the court may then impose any sentence or grant any probation pursuant to the provisions of this part 2 which might originally have been imposed or granted.”)
- Same.
- C.R.S. 18-1.3-204 Conditions of probation (“(4)(a) For good cause shown and after notice to the defendant, the district attorney, and the probation officer, and after a hearing if the defendant or the district attorney requests it, the judge may reduce or increase the term of probation or alter the conditions or impose new conditions.”)