Our office receives at least one phone call per week asking what punishment he or she faces for a probation violation. Our answer is always that there is no standard punishment, set by statute, for example, for one who violates probation. Rather, the judge has wide discretion in how he or she sentences one for violating probation.
What to Take Away: If one is on probation, punishment for a probation violation depends on many things, but most importantly, it depends on the original offense that one is on probation for to being with. It is important to understand that while one is on probation, the sentence for the crime is suspended, so a violation of probation on a misdemeanor with a suspended maximum sentence of six months is less problematic than a violation of probation on a felony where defendant faces a suspended twelve-year sentence due to sentencing enhancements.
The judge will take into account several factors in sentencing for a probation violation. First, the court will consider the seriousness of the violation. The violation may be not submitting to a drug test, or failing the drug test, if drug testing was a condition or probation. The violation may be committing a new crime, failing to report to the probation officer, failing to appear in court for a court appearance, failing to pay a fine or restitution, or failing to comply with any other court order (such as enrolling in or completing, classes, community service or staying away from a specific location, i.e. a person’s residence or a business).
How one presents oneself to the court is also taken into account. If one is arrested on another crime and brought before the judge while in custody, this is not good. It is better if one voluntarily brings oneself to court to resolve the problem, suggesting a sense of urgency, a attitude of responsibility and respect for the judicial process. If the judge issues an arrest warrant or a bench warrant for one failing to comply with the terms of probation, it is good to present oneself in court as soon as possible; voluntarily.
It should go without saying, but merits mention here, that it is smart to wear clean, good clothes, comb one’s hair and be respectful to the judge. It is smart to never interrupt the judge.
Lastly, the court will take into account one’s criminal history, the recommendations of the probation department and how long one was on probation before the violation took place. The court will pay particular attention to whether the client violated probation in the past or was reinstated on probation in the pending case. The court will often comment that probation is a privilege and not a right, so if the client “abused the trust the court placed in him by affording probation,” the court will most likely not reinstate the client on probation. Instead, the client may face time in custody.
As mentioned above, the court has several options in ruling at a probation violation hearing. The court can revoke violation and sentence the client to jail or prison. When this happens, the term of jail cannot exceed the term originally imposed by the court.
Moreover, when this happens, the client does receive credit toward the length of the sentence based on time previously spent in prison, jail or a residential treatment program.
The court can also reinstate one on probation, but with modified terms that are usually move difficult and meant to punish the client for his or her conduct. For example, probation may be modified to add more community service, Cal-Trans or community labor. The client may also have to serve time in county jail, but the period of probation may not exceed the length of the original term of probation. The court may also order that the client enroll in and complete an additional class.
The court may also reinstate the client on probation under the same terms and conditions. This is the best outcome, obviously.
For more information about probation violations, click on the following articles:
- Three Month Lapse Between Arrest and Probation Violation Hearing Does Not Violate One’s Right to a Timely Hearing
- Court Rules That, in Drug Case, a Probation Condition Is Proper That Someone Not Associate with Others He Has Reason to Know Are Drug Users
- May a Judge Extend Summary Probation Beyond Three Years If There Are Probation Violations?
Greg Hill & Associates