Probation is a court-imposed criminal sentence that you serve outside the jail after a conviction for a criminal offense in California. In most cases, the court imposes probation instead of jail or prison sentence since it is a cheaper way of correction. Although probation is a better sentence than spending time in jail, there are terms set to ensure you follow the law while on probation. The conditions set for the punishment vary depending on the type and severity of the criminal charges you are facing. If you violate the terms of probation, you risk getting arrested and facing severe legal consequences. Should you find yourself facing charges for probation violation, you should seek competent legal representation. At the Orange County Criminal Lawyer, we will ensure that the situation ends well for you.
What is Probation?
When you get convicted for a crime in California, the jury decides on the sentence to impose. Probation is a supervisory sentence which the court could impose instead of or together with a jail sentence. Getting probation as an alternative to prison offers you an opportunity to complete your sentence in the community under strict regulations the court set.
Many criminal convictions in California are eligible for a probation sentence as part of the penalty or the only punishment. However, if you get convicted for an offense involving sexual violence or inflict severe bodily injury on another person, you cannot get probation. Serving a probation sentence allows you to apply for an expungement of a criminal record, which is applicable only when you complete your probation.
Under California criminal law, two types of probation can apply as a penalty for a criminal charge:
In California, almost everyone facing criminal charges can get sentenced to summary probation. This probation category is not very strict and is often a choice for individuals who get convicted for misdemeanor offenses and first-time offenders. Giving probation as an alternative to jail is aimed at protecting the public. Also, the program seeks to rehabilitate you and give you a second chance. However, even when you have prior criminal convictions, the judge may decide not to put you on probation.
Felony probation is an alternative to a prison sentence that is offered to individuals who get convicted for felony offenses. Instead of serving time in prison, you get to do your punishment in the community setting under strict supervision. Although formal probation is an option for felony offenders, eligibility for this form of rehabilitation depends on the following factors:
- The severity of the crimes you committed. If you commit an offense that results in severe bodily injuries on the victims, the judge could dismiss probation and impose a prison sentence instead.
- Your criminal record. The court is reluctant to impose probation on individuals who have violated terms and conditions in the past.
- The extent of monetary loss to the victims affects your case. If you cause significant financial damage to the victims, you could not be eligible for probation.
- The possible effect of imprisonment on you is considered during sentencing. If the judge thinks that going to prison will not help in your rehabilitation, they may consider sentencing you to probation instead.
- Your general attitude towards probation
- The way you carry out the crime is a significant factor in your case. Defendants who commit a felony using firearms are often not granted probation. This is because they may be viewed as a threat to the community.
Felony probation lasts for three to five years under strict conditions that you must follow.
Common Terms of Probation
When you are found guilty of a criminal offense, there are several penalties that you are likely to face. With the help of your attorney, you can avoid a jail sentence and instead serve probation. Although probation is a preferable sentence to incarceration, you will still be subject to some restrictions. The terms imposed in a probation sentence vary depending on the specifics of your case. The following are standard terms you should obey if you get sentenced to probation in California:
- Refraining from alcohol or the abuse of drugs during the period of probation. Probation in California lasts for one to five years, depending on the offense you committed. If you have been convicted for driving under the influence, you must avoid possession of drugs or drunk driving. Drunk driving or possession of drugs while out on probation is a serious offense that can result in a prison sentence. Also, if you take drug tests and fail, you face criminal charges.
- You should pay restitution. Restitution is a payment made to victims who suffer significant bodily injuries. If you commit an offense that causes a third party’s death or injury, you are required to compensate the victim as part of your probation. Also, paying court fines as instructed is a condition you must obey for this sentence. If you fail to compensate the victims or pay your fines, an arrest warrant may be issued.
- You should undergo a drug test when called upon to do so. When you get sentenced to formal probation, you should take drug tests when stopped by the traffic officers. Typically, when a traffic officer stops you, you can refuse the tests taken before an arrest. However, if you are on probation, refusing to submit to drug tests is considered a violation that can have severe legal consequences.
- Regular check-in with the probation officer (P.O) is required. By keeping regular contact with your P.O, you will be giving an account of your progress. If you change your address, employment, or occupation, you will let the officer know. Failure to keep contact with the P.O is considered a violation since it’s unknown whether you are doing the right thing.
- Refrain from possession or use of firearms. If you get convicted for a violent crime in California, you are likely to lose your gun rights. The same case applies to felony probation. Owning a firearm during the probation period is a violation that attracts an arrest and criminal charges.
- You are required to remain employed during the probation period. Having a stable job is a sign of stability. Individuals who are fortunate enough to serve probation instead of jail will need to maintain steady employment. If you cannot find or keep the job, the P.O will report the matter in court.
- Avoid contact with particular individuals. If you have been accused and sentenced for domestic violence or other crimes that threaten others’ safety, you could receive probation instead of a prison sentence. However, this sentence is accompanied by regulation to keep off any contact or communication with the victims or witnesses on the prosecution’s side. Sometimes, contact occurs unwillingly, and you don’t have an intention to violate the terms. The court could consider the contact as a probation violation.
- Participation in rehabilitation programs. Rehabilitation and education programs could either be for anger management or drug and substance abuse. As part of the sentence, individuals convicted of violent crimes or drunk driving offenses are required to enroll in rehabilitation programs. Failure to do this will cause your arrest and prosecution.
- Avoid breaking further laws. When you are serving probation in California, committing or involving other crimes is considered a violation of the terms. The law expects you to keep peace and maintain exemplary conduct. You should also appear in court any time you are summoned.
- You should not leave California. When serving a sentence outside, you are required to report all your movements to your P.O. Also, you shouldn’t leave the state without permission from the court. An attempt to run can get you arrested for a probation violation.
Probation Violation Hearing
When your probation officer thinks that you have done something that violates your probation terms, they will submit an affidavit to inform the judge of your actions. This document explains why they believe that you did not comply with the set rules. The judge is likely to issue a warrant of your arrest, depending on what your probation officer presents.
After you get arrested, your probation violation case begins. However, it is essential to understand that for the probation violation hearing, you do not have protections and rights as those in a typical criminal case hearing. If you get arrested for a probation violation, you will be taken for a first hearing to determine bond. This privilege is not always a guarantee, and in most cases, you may remain in jail until your violation hearing.
During your hearing, you are not entitled to a jury, and a judge determines your case. Before deciding whether or not you are guilty of not obeying probation terms, the prosecutor must prove the following factors:
You acted willfully. A probation violation is always the result of doing something that you are not supposed to or failure to act as dictated by the court. For you to be found guilty of violating probation, it must be clear that you intentionally violated the terms or did nothing to prevent it. The prosecutor can prove a willful violation by reporting a positive drug test.
Your actions were substantial. You could be guilty of a probation violation if your activities have a significant effect on your probation. For example, when you fail to report to your P.O, the court is not sure that you were doing the right thing. When you face charges for violation of probation, it is crucial to understand that you have the following rights:
- You should get served with a written notice that indicates the violations that you allegedly committed.
- You have the right to be heard by a neutral judge in a court.
- You are entitled to attorney representation. If you are denied bail after the arrest, your criminal defense lawyer could help you collect evidence and build a defense against your case.
- You should be allowed to present your evidence and witnesses to refute the evidence brought against you, especially in cases where the violation involves committing another offense while on probation. Your criminal lawyer could also help prove that you did not commit the crime and avoid penalties.
The judge will assess both the prosecution and the defense before deciding on the punishment to impose. Seeking the guidance of a criminal defense lawyer is vital when facing a probation violation hearing.
Legal Consequences of Probation Violation in California
At the end of your hearing, you will appear before the judge for sentencing. California Penal Code 1203.3 allows the judge to make modifications by imposing and increasing your sentence as a punishment for probation violation. After much considerations, you may suffer the following consequences of the breach:
- You may receive the original sentence. Probation is always an alternative to jail or prison sentences. If you are found guilty of violating probation, the judge may revoke your probation sentence and impose the original prison time you were supposed to serve. For example, if you are supposed to serve a two-year jail sentence, but instead the judge grants you probation, a violation of the probation could make the court impose the two-year punishment.
- Extension of your probation. As a penalty for violating probation, the judge could revoke the probation sentence and impose a longer one.
- You may receive the maximum available sentence. Different penalties accompany a conviction for each criminal offense. If the court has ordered probation instead of prison and you violate the set terms, your probation may get revoked, and you will be subjected to maximum penalties for your offense.
- Additional probation terms will get imposed. The conditions of probation in California vary depending on the offense you committed and the type of sentence you are serving. When it is determined that you violated the set terms, additional or more stringent conditions may be an option for the court.
- You may be required to enroll for substance abuse treatment. Primarily in cases where you are sentenced to probation for drunk driving, you will be restricted from possession or use of drugs while on the road. Failure to obey this rule will attract an arrest for probation violation. As a punishment for this offense, you may be required to attend a substance abuse treatment program.
- The judge could terminate your probation and impose a new jail sentence particular to the violation offense.
- You may be required to do community service. If you are found guilty at the probation violation hearing, the court could order you to perform community service at charity and government organizations as part of your penalty.
Strategies to Win the Hearing
Sometimes a violation of probation may be a mistake or an occurrence that you did not plan. Getting arrested does not mean that the situation will end badly for you. There are several defenses you can present to help lessen your penalties, including:
- You did commit the violation. Sometimes you are charged with violation of probation for committing other offenses while out on the sentence. If you can prove that you did not commit the crime you are accused of, you will have a chance to fight the charges.
- The Mistake of fact/ lacking intent. When it comes to violations by having contact with victims or disobeying restriction orders, you can use the mistake of fact as a defense. This is by arguing that you lacked the intention to violate your terms. Your criminal lawyer will help you collect relevant evidence to show that you made a mistake.
- Your actions lacked a significant impact. When proving that you committed a violation, it should be clear that your actions affected an aspect of your sentence. In an attempt to avoid the consequences that accompany probation violation, you can argue a lack of impact from your operations.
Frequently Asked Questions for Probation Violations
Although probation is served outside the prison walls, you are expected to follow the set rules strictly. Violation of the punishment will see you facing charges which you have to defend in a court hearing. Some of the frequently asked questions about probation violation include:
Will I Get Arrested For a Probation Violation?
Yes. When the probation officer realizes that you have violated one or more terms of probation, they will inform the court. The judge will then issue a bench warrant which allows the police to arrest you and take you to court. It is essential to understand that the bench warrant does not expire, and even when you go into hiding, the police will find you and take you to court. If you get arrested for a probation violation, it would be wise to enlist some competent legal guidance.
Will I Get Imprisoned For a First Probation Violation?
If you get arrested for a first-time probation violation, you will not automatically get taken to prison. There is a court process that you need to undergo before the judge decides your fate. With the help of a competent criminal defense attorney, you can argue that you did not violate probation and avoid the consequences that accompany the offense.
What are The Consequences of Violating Probation in California?
Several legal consequences are imposed on individuals who violate probation. The decision on the punishment you receive is decided at the probation violation hearing. The judge may choose to revoke your probation and impose the original jail or prison sentence. Alternatively, you can receive a more severe or different prison sentence.
How Long Will I Spend Time In Prison For a Probation Violation?
There is no specific prison or jail sentence that is imposed after a probation violation. The duration of your sentence will depend on the terms you violated. Also, the criminal offense that led to probation will be a determining factor. This is because the court may impose the original jail sentence and revoke probation.
Can I Still Get a Criminal Record Expungement If I Violated Probation?
The expungement of a criminal record offers you relief from the consequences that accompany a conviction record. However, you will be allowed to apply for this type of arrangement after you complete probation. Successful completion of probation means that you follow all the terms of probation. Fortunately, if you violated probation, all hope is not lost. The court can schedule a separate hearing to determine if you qualify for expungement nonetheless.
Can I Get Out of Jail on Bail After a Probation Violation Arrest?
Bail is not a guarantee if you get arrested for violation of probation. Your eligibility for bail will depend on the type of probation the judge imposes. In most cases, California law will allow you a release on bail if you violated misdemeanor probation. The bail amount is influenced by factors such as your criminal history and the bail schedules for the offense you committed.
Find Orange County Criminal Attorney Near Me
California law allows the courts to impose probation as an alternative to jail for particular criminal offenses. However, some regulations come with this alternative sentencing, and violation of these regulations has dire consequences. As a penalty for violating probation, the judge may revoke the probation and impose the original jail sentence. Alternatively, you could face a harsher penalty than your original punishment for violating probation terms. If you or your loved one is charged with a probation violation, you should contact an experienced criminal defense lawyer from the Orange County Criminal Lawyer. If you are in Orange County, CA, you will need us by your side. Contact us today at 714-262-4833 and allow us to guide you through the case.