In the state of Georgia, it is possible to avoid jail time if the court agrees to put you under probation for a set period of time. What this essentially means is that you will be placed under the direct supervision of a probation officer – either state or federal – who will be tasked with ensuring you stay compliant. Whatever conditions the court puts on your probation – mandatory drug testing, curfew, etc. – will be monitored and reported on by your probation officer.
Violate any of the conditions set by the court, and you could have your probation revoked. This does not constitute an additional criminal charge, but it is considered a violation of the penalty imposed by the court. As such, it can lead the court to order you back into jail or prison to serve out the remainder of your sentence.
How Does It Work?
There are several actions you might take which could be considered a violation of your probation. In the state of Georgia, violations typically fall into one of two categories:
- Technical: A violation of particular conditions of your probation, for example, missing a mandatory meeting with a parole officer or counselor, failing to pay a fine or complete community service hours, or leaving the state.
- Substantive: A violation of a “special condition” of probation or a violation of the law beyond the scope of your probation, for example, being caught with drugs or an illegal weapon while on probation for a different crime.
It should be noted that a technical violation can become a substantive violation if the judge makes that condition “special.” For example, if the judge says at sentencing “I’m going to make completion of community service hours a special condition of probation,” then failing to complete the community service hours would be a substantive violation.
Once your probation officer has discovered that you have violated probation, they will report it to the judge who will then more than likely call for a hearing. If you have not been rearrested for a new crime, the judge may issue a Probation Violation Warrant for your arrest. This will authorize law enforcement to locate you, place you under arrest, and bring you back to jail.
Once you have been brought in for a Probation Revocation Hearing, the authorities need only to present enough evidence to show that, more likely than not, you violated your probation. Unlike a full trial, they do not need to prove this beyond a reasonable doubt. As long as the evidence presented shows you likely committed an infraction, your probation can be potentially revoked.
Probation is looked at as a prison sentence you serve outside of prison. So, in effect, if you are revoked, the Court can revert whatever time you have remaining on probation to prison time. If you plead under Georgia’s First Offender Statute, the Court can resentence you to a sentence that is longer than the one you initially plead to!
For instance, if you plead to five years on probation for aggravated assault as a first offender, and your probation and first offender status are revoked, the judge can resentence you to up to the 20-year max for aggravated assault, even though your original plea was to only 5 years!
In addition to the lowered standard, “more likely than not” instead of “beyond a reasonable doubt,” a probation revocation also differs from new criminal cases in a couple of other ways. First, you are not entitled to discovery. So, the state does not have to provide its evidence to you before your hearing. Second, you are not entitled to a jury. It will always be a judge hearing your revocation, and it will almost always be the judge that originally sentenced you.
You are unlikely to get a bond if you are arrested for violation of your parole. However, if the court decides that you have violated probation, it is still possible to be granted parole for your new prison sentence.
What Are Some Defenses for a Probation Violation?
If you have been called by the court to a hearing because of a probation violation, you are not alone. This is a fairly common occurrence with those on probation. Although that is probably not reassuring when you’re the one with the criminal justice system in control of your freedom. But know that being called for a hearing does not mean that you will be brought back to jail, and it doesn’t mean you’ll be found in violation. There are several ways to defend against these allegations.
- Failing to Pay a Fine: Simply showing that you are financially unable to make payments on court-ordered fines can be enough to convince a judge that you are not in violation. By showing a complete breakdown of your income and expenditures, an attorney can demonstrate that you are willing to pay, but unable. It should be noted that by using this defense, your financial picture will be in the spotlight for the court to see.
- Missing an Appointment: Your probation may be contingent upon regular meetings with a counselor, a drug treatment professional or a parole officer, and sometimes all three. But sometimes, people miss appointments, due to automobile issues, scheduling conflicts or unforeseen circumstances. Judges may allow a single unexcused absence, particularly if you have made it to every other meeting.
- Testing Positive for Drugs or Alcohol: Another possible condition of probation may be that you need to abstain from drugs and alcohol. Failing this test could simply be the result of side effects from other prescription medications. Sometimes, the food you eat can make you test positive. An attorney can ask for a new test and show what factors may have skewed the original.
- Being Arrested for a Separate Crime: As with any crime, you are innocent until proven guilty, even if you are already on probation. An attorney can request that the judge hold off on any violation hearing until the new criminal case has been concluded. A continuance is not guaranteed, but if they can successfully defend you from these new charges and you are found not guilty, you will not have violated your probation.
The Busbee Law Group is able to give each and every client our full attention because we keep our caseloads low. This lets us delve deeper into each case, preparing a thorough approach that the prosecution can’t match. This helps us paint a better picture of your innocence and convince the judge that you are not in violation of your probation. Call today to schedule a free consultation.
