If you are on probation, you risk a violation should you either fail to comply with the conditions of your probation (technical violation) or if you get arrested on a new charge (new law violation).
Much like when you are charged with a substantive offense, being in violation
of your probation still entitles you to the presumption of innocence.
You have a right to deny the allegations against you and request a hearing.
Unlike a trial, a probation violation hearing (PVH) is conducted before
the judge without a jury present. At this hearing, the State Attorney
must prove by a preponderance of the evidence that the accused was on
probation, was given certain conditions, and failed to complete or comply
with those conditions.
The burden of "preponderance of the evidence" is much lower than
the burden of beyond a reasonable doubt, which is what the State must
prove at trial before a jury.
At a PVH, the accused can testify or not testify. They may also call witnesses
on their own behalf.
The State will attempt to prove a probation violation by putting on the
testimony of the probation officer, who may testify that he or she advised
the accused of the conditions of their probation and that the accused
failed to meet those requirements.
If the violation is a new arrest, the State will likely call the arresting officer.
Even if the new arrest never materializes into formal charges, or if so
the charges are dropped, the State may still proceed on the violation
of probation. Remember, since the burden of proof is lower, the Court
may find that you violated probation even though there was not enough
evidence to convict or even sustain the charge.
Probation violations are serious because you are subjected to the statutory maximum for the
charge that you are on probation for. For instance, if you are on probation
for aggravated assault, which is a 3rd degree felony punishable by a maximum
of 5 years in prison, if you violate probation, you face 5 years in prison
as a sentence.
Probation violations are best settled through negotiations. With the right
criminal defense attorney on your side, you may be able to get your probation
reinstated or extended without having to serve significant jail or prison time.
When you have a pending probation violation, you will likely be held in
jail without being given a
bond. However, it is possible to get a bond with a probation violation pending.
I have done it before for clients (although this is no promise or guarantee
that I can do it for you).
If you are facing a probation violation, or you know somebody who is,
contact me to discuss the best course of action. I like to resolve probation violations
quickly when the client is in custody. This may limit the amount of time
the client has to spend in jail.
I represent clients in Miami-Dade and Broward.