Defendants who have been convicted of a criminal offense, either a felony or a misdemeanor, may be given a sentence that is an alternative to incarceration. For example, a judge may order that you serve 2-years in jail but suspend the sentence and place you on probation for several years. Or, you may serve less than the time to which you were sentenced and then be placed on probation for a certain period.

Probation is an opportunity for defendants to be rehabilitated or to prove that they can meet the conditions imposed on them and eventually have all civil rights restored with some exceptions in felony cases. It is a way for defendants to be returned to the community and to avoid further jail or prison time provided they adhere to whatever conditions or restrictions are placed on them.

What are Typical Conditions of Probation?

Typical conditions placed on defendants include:

• Make a diligent effort to find employment
• Meet with or report on a scheduled basis with your probation officer
• Refrain from drinking or taking drugs
• Make no contact with a victim of the underlying crime for which you were convicted
• Pay court-ordered restitution to the victim
• Pay all court fees and costs
• Adhere to a curfew
• Refrain from meeting or associating with known gang members or other persons designated by the court
• Stay away from certain designated locations or areas
• Attend all classes or programs as ordered by the court such as AA, anger management, or domestic abuse programs 
• Report all residential moves or new employment to your probation officer
• Register as a sex offender if so ordered
• Do not commit any further criminal offenses other than minor traffic violations 
• Submit to drug testing on a periodic basis or when called to do so
• Submit to searches of yourself or home at the direction of a peace officer 

Probation Violation Process

Any violation of a condition of your probation can prompt your probation officer (PO) to file a “Notice of Surrender” with the court. Once received, a judge will either issue a warrant for your arrest or send you a summons to appear. At this point, immediately contact criminal lawyer Paul Moraski to represent you at your violation hearings. In some cases, if there is a reasonable excuse for why you may have violated a condition or you can show that there was no violation, your attorney can contact the probation officer to discuss the matter and possibly have the Notice of Surrender withdrawn or agree to a compromised resolution. 

Surrender Hearing (Preliminary Hearing)

Your initial or Surrender Hearing is generally scheduled within 14-days of the date the summons of the Notice of Surrender being sent to you. 

At the initial or Surrender Hearing, the probation officer will inform the judge of the particular condition or conditions that you allegedly violated. All your PO needs to show is that there is probable cause to believe that you violated the condition. This could mean that someone saw you meeting with a person that the court prohibited you from associating with, that a class instructor reported that you failed to show at a meeting or class, or that you recently moved without notifying your PO. If you face possible incarceration, you are entitled to a lawyer or to have one appointed for you if you are deemed indigent.

Preliminary or Probable Cause Hearing

If probable cause is established and the judge finds that you violated a condition, the judge will usually order that you be detained, especially if the violation was material such as failing a drug test or contacting a person whom you were barred from seeing. The judge will generally make a finding that you be held since you now constitute a danger to yourself or others. Other possible outcomes are release on bail or personal promise to appear at the next hearing. However, if you committed a new criminal offense, you will be detained without bail. 

You are entitled to a probable cause or preliminary hearing unless you have been indicted or charged with a new offense. In that case, probable cause is already determined. Otherwise, you can request a preliminary hearing at the initial hearing to be held not more than 7-days after your initial hearing. At this hearing, your PO or a prosecutor will summarize the findings or information to support probably cause. Your criminal lawyer can make arguments to the court as to why the reasons presented are false, not credible, or at least do not amount to probable cause. He can also present witnesses on your behalf. You should be aware that probable cause only requires a low standard of proof, or “a state of facts as would lead a person of ordinary prudence to believe and conscientiously entertain a strong suspicion” of the fact to be proved,” or in this context that you violated a condition. Hearsay, which is an out-of-court statement made by another person that is offered to prove the truth of the matter asserted, or in this case that you committed a violation, and which would not ordinarily be permitted at trial, is permissible at these hearings. In many cases, the mere fact that your PO felt you violated a condition is sufficient for the judge to find that probable cause has been found.

If probable cause is found, then a Final Violation Hearing is scheduled is scheduled within 7-days of the initial hearing and not later than 30-days absent good cause.

Final Violation Hearing

At this hearing, the PO can present witnesses or other proof that you violated your probation. The standard of proof is higher in this hearing and evidence that you violated a condition must be established by a preponderance of the evidence or that the evidence is more convincing than not that you violated a condition. Hearsay evidence is admissible. Your criminal lawyer can cross-examine any witnesses against you and offer proof in your favor including witnesses that you did not commit a violation, that there are extenuating circumstances surrounding the violation, or that your PO failed to meet the burden of proof necessary to find you guilty of a violation. 

In cases where there is sufficient proof, defendants may be advised to stipulate to the violation and allow their attorney to negotiate a disposition that does not include incarceration.

If found to be in violation, there will be a dispositional hearing where the judge will consider the recommendation of the PO or prosecutor, the underlying offense, prior violations, the defendant’s conduct while on probation, threat to the community, and other mitigating or aggravating facts, and order any of the following:

1. Revoke your probation and order you to serve the time for which you were sentenced 
2. Restore the terms of your probation
3. Extend or modify the terms of your probation

You can appeal a revocation order. 

Retain Criminal Lawyer Paul Moraski

Probation violation allegations are common but you have a right to have your lawyer defend you and present arguments on your behalf. Having an experienced criminal lawyer on your side will give you the best opportunity for prevailing at your hearing or in obtaining a satisfactory resolution. Call Paul Moraski at (978) 397-0011 if you or a loved one has been given a Notice of Surrender in a probation matter.