Introduction to Criminal Defense for Probation Violations
Probation is essentially an agreement between a judge and a criminal where a criminal agrees to follow certain guidelines in lieu of jail or for a reduced jail sentence. Probation is often assigned for first time crimes or low damage crimes as the sole punishment, but is also commonly required for felons after lengthy jail sentences. Probation guidelines assigned by a judge vary depending upon the nature and degree of the crime, but generally are comprised of the following:
-Reporting monthly to a police officer
-Payment of court costs and restitution
-You must not commit any new crimes
-You must report any interaction with law enforcement
-May not change residence or leave without written permission from probation officer.
In more severe cases, the probation guidelines could be even harsher, often involving confinement of the individual to their home or a treatment facility. In these situations, ankle braces are required to ensure individuals do not leave the premises.
Types of Probation and Enforcement:
There are two broad categories to probation, which are further split by misdemeanor and felony charges. The first category is state probation, which as the name suggests, can be assigned if you break a state law. If you are charged with a felony, the probation requirements are stricter than a misdemeanor charge, and will be enforced by the state’s Department of Corrections. On average, a state felony probation lasts eighteen months, but depending upon the severity of the felony, can last anywhere from five to twenty-five years. Moving across state lines is possible under state probation, but must be approved by both state governments’ Department of Corrections. Without approval from both states, one must wait until the probation term ends to relocate.
For a state misdemeanor charge, you will likely be supervised by either the county probation office or a private contractor. The requirements will probably be more lenient than a felony probation, and less heavily scrutinized than under the Department of Corrections. The maximum probation sentence for a misdemeanor charge is one year, and it generally lasts no longer than six months. However, because misdemeanor probation is so short, appeals to move across state lines are usually not approved in comparison to longer felony charges. In cases where relocation is necessary, there are rare cases involving “mail in probation” for misdemeanor charges, where the person will communicate with his/her probation officer remotely rather than in person.
Federal probation can be assigned if you are convicted in a federal court. Often, federal probation is stricter and more restrictive than state probation. This is because, generally, crimes convicted at a federal level are worse than those convicted at a state level. A list of crimes which are invariably convicted at a federal level are as follows:
-Cases in which the United States is a party
-Cases involving violations of the U.S constitution or federal law
-Cases involving citizens of different states if the amount in question exceeds 75,000 dollars.
-Cases involving Bankruptcy, Copyright, Patent, and Maritime law
Outside of these crimes, there are many others which fall under either hardline State or Federal laws, and are assigned to the courts accordingly. A surprising number of laws which one would assume overlap Federal and State jurisdiction are wholly in the jurisdiction of the State. For example, robbery is generally illegal only by State law, save for federally secured banks. However, sometimes even the violation of solely State law can be spun to also encompass Federal law. For instance, if someone were to eat an animal’s meat forbidden under state law, they could feasibly argue in a federal court that they did so for religious purposes.
As mentioned above, it is generally in one’s best interest to be assigned state probation. Federal probation is largely considered to be stricter and also more heavily enforced. This is because the federal government not only has more people employed, but also more resources and funds. If you are assigned federal probation, every aspect of your life will be constantly scrutinized, including full financial disclosures on all forms of income.
Because federal agents will likely watch you more closely than state agents, the rate at which people are exposed to incarceration or reincarceration is much higher for federal crimes. Moreover, federal charges generally allow for a harsher punishment for probation violations. Federal agents are split into two designations, all under the umbrella of the U.S. Probation and Pretrial Services System. The first are the pre-sentence investigation units, who look over a defendant’s case and assign a recommendation to the presiding judge. Then, Federal Supervision units are, as the name suggests, responsible for the supervision of probation requirements.
In addition to the standard probation requirements, those who committed more violent felonies at a Federal level are also given the following requirements:
-Reporting to your probation officer more than once a month
-(in sex cases) no pornographic materials such as magazines or DVD’s
-Restrictions on individuals you may associate with
-Registering your whereabouts with the local sheriff’s office.
Whether you are under the jurisdiction of the Department of Corrections for a State crime or the U.S. Probation and Pre-trial services for a federal crime, probation agents have almost full discretionary authority. They are, in all cases, able to search your home without warrant, request that you appear for a drug test, and require that you appear at least once a month for a reporting fee.
For any type of probation, violating the explicit rules assigned by the judge is grossly inadvisable, and results in punishments which usually far outweigh the initial charge. However, all violations are not grouped together and assigned the same punishment. Based on the type of violation, kindness of the probation agent, and extenuating circumstances, agents can respond in several different ways.
Warning or Community Service-
The first possibility is a written or verbal warning. A warning is generally given when the violation is fairly mundane, or when the agent wants to save the judge from a larger case load. When a warning is not given, the least serious form of punishment which could be assigned is community service. Similar to a warning, a community service assignment is usually in response to a less severe violation.
For a violation regarding drugs or alcohol, the punishment is often predicated on both the kindness of the probation agent and the person’s history and mental state. In certain situations, an agent can request that a drug or alcohol violator be put into rehabilitation. If the violator refuses this treatment, the probation agent has the right to place him/her in jail.
A probation agent can also request that you attend counseling in cases where the agent has determined mental or emotional distress related to the violation. Because it is entirely up to the agent’s discretion, one should rely on neither counseling nor rehabilitation in the case of a violation. While an agent may have sympathy for your cause, there are no written standards which compel them to do so. Thus, one’s focus should always be on avoiding violations wherever and whenever possible.
New Charges and Jail-
Many probation violations are only illegal when under probation. For instance, if you miss a hearing or a meeting with your probation officer, this is only illegal under the terms of the probation, and not under State or Federal law. In cases where the violation is confined to the probation, and does not constitute a new charge, one can still be jailed, but generally not for long. Unfortunately, while there are statutes to determine punishment ceilings for probation violations, there are none which control the type of punishment assigned. Thus, the same violation that lands one person in jail could land another in rehabilitation. As stated above, this renders the fallout of any violation unpredictable, and makes it far riskier for someone on probation to calculatedly defy the agent’s terms.
If the probation violation committed is also illegal under State and/or Federal law, you may be charged with another crime. This crime will be compounded with past criminal charges, and punishments will likely be worse based on the fact that you were under probation. Alternately, probation can be extended from the original duration, and even worse, taken away. If probation is revoked, you will probably be forced to serve either the original sentence or the remainder of probation in prison.
Arizona Probation Standards:
Although probation standards are fairly constant across the country, understanding Arizona’s specific standards could be useful if you have been placed under probation.
Under ARS 13-1902, guidelines for probation duration are laid out as follows:
Class 3: One year
Class 2: Two years
Class 3: Three Years
Class 5 and 6: Three years
Class 4: Four years
Class 3: Five years
Class 2: Seven years
Class 1: Ineligible for Probation
Arizona has a specific list of Class 1 crimes, largely limited to dangerous crimes and crimes against children. Although a defense attorney could feasibly get you probation for one of these charges, it is extremely rare. Additionally, people under Arizona probation are required to work and will generally be assigned forty hours of community service a month, unless they are a student or can provide evidence of a disability. For more information on statutes regarding probation see here.
If you have been accused of a probation violation:
If you have been accused of a probation violation, you may either be ordered to a probation violation hearing, or request one yourself. Because punishments are so overwhelmingly based on discretion, hiring a good attorney is essential to a successful defense. At this hearing, you may state any evidence you believe to be relevant, and may call upon witnesses.
Fortunately, probation violation hearings favor the defense more than many other types of hearings, since the defense only needs a preponderance, or majority, of favorable evidence to be exonerated. This is contrasted with the common requirement that burden of proof be “beyond a reasonable doubt”- something much higher than 51 percent. However, this also means that the probation officer prosecuting the case only needs a majority burden of proof to successfully uphold the sentence. This again highlights the importance of hiring an experienced attorney capable of obtaining and presenting evidence to either create the necessary burden of proof, or convince the sentencing judge of mitigating circumstances.
Interested in learning more about probation law in the state of Arizona? We’d love to hear from you! Comment below or reach out to us on our social media channels. If you need criminal defense help for violating probation in Arizona, contact an experienced Phoenix defense attorney today.