Violation of Probation

The state of California extends the courtesy of probation in lieu of an extended jail or prison sentence for those convicted of certain crimes. It is not considered a right, but rather it’s a privilege, and if you violate the terms of trial period, you can be re-arrested, your probation revoked and the remainder of the original sentence imposed.

If you’re concerned you might have violated your trial period, contact our Riverside & Orange County trial period violation attorneys at Fakhimi & Associates. There’s much at stake, after all, and you may be at risk of spending months in jail simply awaiting a violation hearing. Not only that, but you also forfeit your right to a jury trial in the matter. It doesn’t have to be that way.

Probation officers don’t like these types of violations, and their input weighs heavily on the ultimate decision of how a judge rules in the trial period hearing, in Riverside, Orange County, and throughout the state.

There are generally two kinds of trial period recognized in California: Formal and informal.

Informal Probation – sometimes referred to as misdemeanor trial period or summary probation – is codified in California Penal Code 1203(a). It typically lasts somewhere around 3 years, though it can go on for as long as five years. It is designed for individuals convicted of misdemeanor crimes and who are not considered a threat to the community.

Although it is possible for someone who receives summary trial period to first serve time in jail, the general idea is to serve as much time as possible out of jail, but under the supervision of the court. The goal is to rehabilitate the offender and restore the victim.

In these cases, the judge isn’t going to ask for a “probation report” from the county trial period department in order to determine what the terms should be (unless the underlying crime was sexually motivated). Judges have discretion in issuing trial period conditions that fit the crime, so long as those conditions are reasonable and logical.

Some of those conditions may include:

• Payment of restitution to victim and/or fines to the state
• Participation in therapy (group or individual)
• Completion of community service or roadside work
• Seeking legitimate employment
• Abiding by restraining order (in cases of domestic violence)
• Refraining from using drugs and/or alcohol
• Attending a substance abuse program
• Refraining from driving under the influence
• Installing ignition interlock on a vehicle (generally after multiple DUI convictions)
• Agreeing to abide by all laws

Periodically, the judge may require a defendant return to court to provide a progress report. This ensures the defendant is following all requirements and is on track to complete the necessary compliance requirements. Failure to appear at these hearings, however, can result in a failure to appear bench warrant in and of itself, this is a violation of trial period.

In some cases, where a defendant is doing very well on trial period, your lawyer may be able to request modification or even early termination of trial period.

Once you complete summary probation, your trial period violation attorney can assist you in applying to have the underlying charges dismissed in the interest of justice, meaning there will be minimal impact on your future.

Formal Probation, meanwhile, is far more stringent. It is sometimes referred to as felony trial period and is exactly as the name implies. It’s issued in lieu of incarceration for far more serious crimes and typically remains in place between three and five years.

To determine whether an individual is eligible for felony trial period in Riverside or Orange County, the judge will consider elements such as the seriousness and circumstances of the crime, whether the defendant had a firearm, how vulnerable the victim was, degree of loss or harm to victim, whether the crime was sophisticated in nature, defendant’s prior record (juvenile offenses count) and the effect of prison on defendant and/or dependents.

Bringing to the judge’s attention mitigating circumstances is the job of your defense attorney, and it’s often critical to securing trial period in lieu of prison following a conviction.

Once probation is granted, the judge will seek a trial period report from the county your hearings are held, and the judge will then take into consideration the recommended length and terms of trial period.

Terms may include requirements listed in misdemeanor probation cases, but are also likely to include:

• An agreement to submit to police officer searches of person or property without a warrant;
• Monthly meetings with a trial period officer;
• Avoiding gang member associations.
• Other terms may be imposed, so long as they are related to the underlying offenses and are reasonable.

A person who violates probation should expect some consequences. However, a good trial period violation defense attorney may be able to help reduce potential penalties. We’ve seen clients who are on the verge of finally putting their past mistakes behind them and moving forward with no fears of the past, only to find himself in trouble due to an innocent mistake or overlooked appointment. We know what’s at stake for our clients.

Probation violation hearings, also sometimes referred to as Vickers hearings, are essentially mini-trials. You don’t want to be caught up in one without a lawyer.

This is especially true because it isn’t necessary for prosecutors at these hearings to prove guilt beyond a reasonable doubt, the way they must at trial. Instead, the standard of guilt is by a “preponderance of the evidence.” That means “more likely than not.”

In some cases, your attorney may be able to negotiate a settlement with the prosecution prior to the hearing (subject to the judge’s approval).

Ultimately, it is up to the judge to decide whether a probation violation warrants:

• Agreement to submit to police officer searches of person or property without a warrant;
• Monthly meetings with a trial period officer;
• Avoiding gang member associations.

These are often treated as second chances and it’s important to not jeopardize the hard work completed in prison that earned the second chance. We can help ensure you get back – and stay – on track. Contact our Riverside & Orange County probation attorneys today.