Violating probation can have serious repercussions, so it is important that you understand what can happen and what you can do about it.
How will you be notified?
Typically, there are three ways you will be notified if you violated probation. You will either be told while you are in court for a new arrest (if that is the basis for your violation), you will receive a summons to court to answer to a violation, or you will be told by your probation officer. No matter how you were informed, you should not avoid going to court to answer to the violation, as that can often make matters much worse.
Initial court appearance
At your initial court appearance, you will be formally informed that the probation department is alleging that you have violated probation. At that time you will be provided documentation about the alleged violation, which is known in the courts as the “probation packet.” During this appearance, the probation department will have the ability to request that the court either give you a new date to come back to court or hold you in jail until your next court date. It is very rare that bail is set for a probation violation – you are usually either released or held. The court may also set new temporary conditions until your next court date.
Second court appearance
Your second court appearance is called a “Final Surrender Hearing.” It is at this hearing that the probation department must either satisfy their burden to the court that you have violated probation. While there are some circumstances that would result in a third or even fourth court date, usually, it is at the second date that the matter concludes.
You have two options when dealing with a probation violation. You either have to admit to it or you have to fight it. Due to recent rule changes, it is very rare for the probation department to simply withdraw their allegations.
If you decide to admit the violation you will be sworn in and will have to admit that you violated probation to the judge. After such an admission both the probation department and your attorney can argue about what the punishment (if any) will be. It is important to understand that the judge doesn’t have to adhere to any agreements and can sentence you to up to the maximum jail time under the charge that you are on probation for.
Final Surrender Hearing
If you decide to fight the allegations there is a hearing before the judge where the probation department has the burden to prove that you violated probation. The standard at such a hearing is a preponderance of the evidence, which means that it was more likely than not that you violated. This is a significantly lower burden than the prosecutor has during an active case. If the probation department fails to meet their burden then you will remain on probation with the original terms until your term concludes. If they succeed in meeting their burden, both you and the probation department will have the opportunity to argue a punishment. Once again, the judge has the ability to sentence you up to the maximum jail sentence for the charge you are on probation for.