Probation violation cases are unlike other criminal cases. For one, the accused individual in a probation violation case has already been convicted of some crime. Consequently, defendants in these cases may not have all of the rights that they had in a previous engagement with the criminal justice system. Also unique to probation violation cases is the:
- Standard of proof: The bar for proving guilt fin probation violation cases is much lower than it is for other criminal cases. That can create an uphill battle for defendants.
- Court process: These cases don’t go to trial before a jury, and they aren’t usually as involved as criminal trials. The judge overseeing these cases will have sole authority on the verdict and the sentence if the case ends in a conviction.
A good defense in probation violation cases will require an understanding of the unique aspects of probation violation cases while finding the best strategies to show that the alleged violation was not substantial and/or intentional. In Westchester County, NY, Mamaroneck Criminal Defense Attorney Michael J. Borrelli is the advocate to rely on when you need a strong, effective defense in a probation violation case.
While the following shares more about how probation violation charges, cases, and penalties work in New York, don’t hesitate to contact the Law Office of Michael J. Borrelli when you need answers and superior defense advocacy.
What Is a Probation Violation?
A probation violation is any action or nonaction that goes against the terms of probation. These terms can vary from case to case, depending on what the underlying offense was. Generally, however, probationary terms tend to include:
- Prohibitions: These can include things like not using drugs or alcohol, not carrying weapons, and/or not hanging around certain individuals.
- Requirements: These can include having to submit to drug or alcohol testing, meet with a probation officer, and/or participate in some type of classes or therapy.
Typically, probation is given in place of jail time, on the condition that the terms of probation are followed.
Types of Probation Violations
When a probation violation occurs, it’s classified as either a technical violation or a substantial violation. Technical violations are less serious and usually pertain to failures to follow the exact terms of probations. In contrast, substantial probation violations are more serious and commonly involve new allegations or crimes.
Some examples of probation violations include:
- Failing to maintain ignition interlock devices on vehicles, following a DWI conviction
- Contacting the victim of an assault or incident of domestic violence
- Failing to register as a sex offender, following a sexual assault conviction
- Failing to enroll in or complete court-ordered programs, like alcohol education courses or domestic violence programs
- Failing to complete court-ordered community service
What Happens in Probation Violation Cases?
Probation violation cases can be triggered in all sorts of ways—from traffic stops gone wrong to probation officers making arrests. Regardless of the incident that causes the probation violation allegations, here’s how these cases generally proceed:
1. The accused individual is arrested.
Because these cases are associated with a previous conviction, there is no right or opportunity for bail. However, some judges may be open to allowing a bond, particularly if the underlying case involves a misdemeanor or the violation is associated with financial matters (like failing to pay court fines).
2. A probation violation hearing occurs.
Depending on the court’s schedule, the probation violation hearing may be scheduled anywhere from a couple of weeks to a few months after the arrest. There is no jury, just a judge. During this hearing, both sides have the opportunity to present their arguments and evidence before the judge. Prosecutors will present their side first.
3. The judge issues a decision.
After hearing the testimony and reviewing the evidence, the judge will render the final decision. In the event of a not guilty verdict, the probation will still remain in effect.
For a judge to hand down a conviction, the prosecutor is legally required to prove that the violation was both intentional and substantial. Unlike other criminal cases, it is not necessary for the prosecution to prove its case beyond a reasonable doubt.
Instead, the prosecutor only needs to satisfy the “preponderance of evidence” standard. That means that it’s more likely than not that the violation occurred and the defendant is guilty. The lower bar for a guilty verdict in these cases makes it especially crucial to have a strong defense.
4. In the event of a conviction, a sentencing hearing will follow.
The judge will have full discretion to issue whatever sentence (s)he sees fit. This could include another chance at probation, revocation of probation, and/or additional prison or jail time—on top of the incarceration time that may have been suspended when probation was initially issued.
Here, it’s important to note that:
- The defendant will have the chance to make a statement: This is a defendant’s right, and the statement can be made before the judge issues the sentence. While defendants have the right to decline to make a statement, statements they do make can be considered by the judges when they are considering potential penalties.
- Credit is always given for time served: By law, any time in jail or prison that preceded the hearing will be credited towards any jail or prison term handed down as part of the sentence.
What Are the Defense Options in Probation Violation Cases?
The best defense options for a probation violation case will depend on the details of that case. Generally, however, the defense will want to try to establish either or both of the following:
- The alleged violation was not intentional: This can involve demonstrating that the accused individual was unaware that a violation was happening and that (s)he had no will or intent to commit the violation. Pointing out misunderstandings, miscommunications, and misinterpretations of an incident can all be helpful ways to shore up the defense cases relying on this strategy.
- The alleged violation was not substantial: While this can be easier to prove in he-said-she-said cases, there can be ways to challenge positive drug tests and other seemingly definitive evidence of substantial violations. For example, demonstrating false positives or mistakes with the testing methods may be useful in cases that center on questions of drug use.
What Are the Penalties for Probation Violations?
The penalties will be up to the judge, who may choose to maintain, alter, or revoke the terms of probation. The judge may also add additional jail or prison time. That can be compounded by any additional criminal cases that may have come out of the probation violation, like drug possession, larceny, illegal possession of a firearm, or assault.
Given everything that can be on the line with probation violation cases, it’s
Don’t Face Probation Violation Charges Alone: Contact Westchester County Criminal Defense Lawyer Michael Borrelli
If you or a loved one has been accused of violating the terms of probation, your freedom and more can be on the line. When you want to be confident that you’ll have an experienced advocate in your corner—and you want the strongest possible defense—you want Mamaroneck Probation Violation Lawyer Michael J. Borrelli.
Call (914) 825-8620 or contact us online for a FREE, confidential consultation. We offer consultations 24/7.
With more than two decades of experience and tens of thousands of criminal cases under his belt, Attorney Michael J. Borrelli has deep expertise in New York criminal law, as well as lasting relationships with the courts and police in Westchester County.
Backing his experience, skillset, and relationships is Attorney Borrelli’s tireless commitment to helping people just like you. He understands how overwhelming and stressful probation violation cases can be, and he knows how to put his clients at ease, giving them the information, advice, and advocacy they need in the pursuit of optimal outcomes.
That’s why he’s known for excellence, experience, and a record of success. Beyond that, however, Attorney Borrelli is proud to offer personalized service and exceptional defense representation, so you feel confident whenever it’s time to go to court. That can provide priceless peace of mind that you have optimal chances of favorable, just, efficient resolutions.
Find out your best defense options in a probation violation case now in a FREE consultation.