Violation of Probation in California: Penalties and Legal Help

Probation is an alternative to incarceration. When a defendant is sentenced after being convicted of a crime, a judge may sentence them to probation. This allows the defendant to avoid being incarcerated, i.e., sent to prison or jail depending on their sentence. The defendant can stay out of jail or prison as long as they obey the terms and conditions of their probation.

If a defendant violates their probation, they risk being made to serve the time in jail or prison to which they were sentenced. A California lawyer would be able to provide more information about probation.

A few important things to know about probation in California are as follows:

• Most defendants who are convicted of a first criminal offense that is not violent are ordered to serve their sentence on probation rather than being incarcerated.
• There is misdemeanor probation and felony probation. Misdemeanor probation is usually less harsh and lasts for a shorter period of time than felony probation.
• A defendant can ask a court to release them from probation before it is set to expire, maybe after a few months, if they have complied perfectly with the terms and conditions.
• A defendant may be eligible for expungement of the criminal conviction from their criminal record, if they comply with the terms and conditions and their probation period ends.

If the court learns that a defendant may have violated a condition of their probation, it has a choice. It may issue a warrant for the defendant’s arrest, or it may issue a summons ordering the defendant to appear in court to answer for a probation violation.

In both cases, the defendant is required to appear in court where they are entitled to a probation violation hearing (PVH). In a PVH, the court determines the following:

• Whether the defendant, in fact, violated their probation, and
• If the defendant violated their probation, whether to revoke probation and order the defendant to serve their sentence.

Probation Violation Hearings

A probation violation hearing (PVH) is similar to a trial. The defendant and the prosecution are both able to present evidence, call witnesses to testify, and make arguments. However, some experts say that it is more difficult for a defendant to win in a PVH. A person would want to get legal advice before appearing at a PVH.

The reason for that is that in a criminal trial, the prosecution must prove the defendant’s guilt beyond a reasonable doubt. However, in a PVH, the prosecution must only prove the defendant’s guilty of a probation violation by a preponderance of the evidence, a standard that is less demanding. Still, the prosecution must present evidence to the effect that the defendant violated their probation.

If the judge finds at the PVH that the defendant did indeed violate a term of their probation, they have two options:

• They may allow the defendant to remain on probation. In some cases, they may impose more harsh terms, e.g., increased supervision.
• They may revoke the defendant’s probation. This means that the defendant is no longer on probation and must serve the sentence which was originally imposed when they were convicted. This could include serving time in the county jail or in state prison. At the end of the PVH, the defendant could be taken into custody.

In making their decision, a judge takes into account such factors as whether this is the defendant’s first violation as well as the recommendation of the probation department.

Do You Automatically Go to Jail for Violating Probation?

A defendant does not automatically go to jail for violating probation. As noted above, a judge has the option of continuing the defendant’s probation. However, the judge would also have the option of revoking probation and sending the defendant to jail or prison, depending on what the sentence that was imposed on them originally.

How Much Jail Time Can You Face for Violating Your Probation?

A defendant who is found guilty of having violated their probation generally must serve a term of incarceration to which they were sentenced when they were originally convicted of a criminal offense. Generally, if a person is convicted of a misdemeanor, they would have been sentenced to a year or less in a county jail.

If they were convicted of a felony, the length of their sentence would depend entirely on the crime of which they were convicted and the possible prison sentence that the law specifies for the crime. In addition, usually, the law specifies a range of time in prison as a possible punishment from 1 year to life without the possibility of parole. So a judge would have specified a term that comes within the legal range of time specified in the law.

The judge would have taken into account the possible sentence and then a variety of factors, such as whether the defendant had a criminal record of other convictions and whether the offense involved violence. But all of these issues would have been considered at the time the original sentence was imposed.

Can You Bail Out of Jail After a Probation Violation?

A defendant cannot bail out of jail if they are sentenced to serve time in jail because they violated probation. That is not how bail functions in the criminal case process in California. If a defendant is ordered to serve a term of incarceration as punishment for being convicted of a crime, they may be ordered to serve their time in jail if the time is less than 1 year or in prison if their time exceeds 1 year.

A person cannot escape serving a term of incarceration that is ordered by a judge as punishment for being convicted of a crime by posting bail.

Bail is money that a person who has been arrested and charged with a crime posts with the court when they are in jail after being arrested. They post the bail in order to be released from jail pending a trial or other disposition of their criminal charge.

A judge usually sets the amount of bail. It is supposed to be an amount that ensures that the defendant will appear in court as ordered to deal with their case. If they do, they get their bail money back. The court returns the bail money to the defendant after their criminal court proceedings have been completed.

On the other hand, if the defendant fails to appear in court on the days and at the times ordered, the court does not return the money. It is forfeited. The money is lost to the defendant.

In a probation violation situation, if a defendant is arrested because a warrant for their arrest was issued for the probation violation, they might post bail to get out of jail while they wait for their PVH. However, they would not escape serving their sentence for the original crime of which they were convicted by posting bail, if the judge orders that they serve the sentence, because they violated their probation.

Can a Probation Violation Be Dismissed?

As noticed above, after a probation violation hearing, a judge has the option of allowing the defendant to remain on probation. The judge may impose different and possibly more severe terms and conditions of probation on the defendant.

A judge does also have the option of dismissing the charge that the defendant violated their probation. In that case, the probation would continue as it was prior to the charge having been made.

Should I Hire a Lawyer To Reinstate Probation?

If you have been charged with violating your probation, you want to talk to a California criminal defense attorney. LegalMatch.com can connect you quickly to an experienced attorney who knows the probation violation process and the best way to try to get back on track with your probation and avoid having to serve your sentence.