Whenever you are on probation, it is essential that you follow all the rules of probation. We all know that, right? As one local judge likes to say, “there is no condition of probation that is unimportant, a violation can be filed for any violation, regardless of how small they may seem.” Amazingly, despite this advice, many people wrongfully think that there are certain conditions they can violate and even if they get caught, nothing will happen. Those people are typically mistaken. And, when you are facing your entire suspended sentence in jail or the risk of losing the right to modify your felony to a misdemeanor, it almost never pays to risk the violation and game the system. Obviously, however, many risk it regardless. The question is then, to disclose or not to disclose. Let’s evaluate the answer.
Notwithstanding the advice of people who pretend to know or give guidance based on “personal knowledge,” let’s be honest, probation typically finds out if you violate…probably 85% of the time if not more. Not always right away, but usually they find out. Sometimes the probation officer will choose not to violate even if they do find out, rather they cut you a break and order you to be in strict compliance moving forward. However, every once in a while, a probation violation goes unnoticed for whatever reason. When that happens, in the 15% of cases that go unseen, a probationer/defendant typically picks up the phone and asks us (or their original lawyer) a very simple question: “Should I self-report my probation violation, and what happens if I don’t?”
The straightforward answer, and the black letter of the law answer, is yes, you should report it. Why? Because the conditions of probation require it. But, many people choose to gamble and hope that probation won’t find out. Those people sometimes luck out, but if they don’t and probation discovers the violation, the probationer faces a double punishment: (1) a sanction for the violation, and (2) additional punishment for failing to disclose. The punishment for failing to disclose is always worse.
But…there are many people reading this blog that might be saying to themselves, “I violated probation, got away with it, never reported it, and I’m fine.” That is true. That does happen. And they are very lucky. Yet, there are many more people who gamed it and lost big time. But, many ask themselves, “Why would I disclose it and guarantee a violation when I can risk it?” That, too, is good question. While that is often the case, and a violation may surely come from disclosing, there are many reasonable probation officers and prosecutors who will take the honesty into consideration when deciding the potential penalty, if any. The inverse of that is true as well, especially if you get caught without being honest.
Nevertheless, let’s say you are a gambler. You have committed a violation and believe that you have gotten away with it. And, let’s say you celebrate reaching the end of your probation without them ever knowing — happily you bask in your luck having skirted responsibility. Let’s consider an example. You are put on probation for 5 years following a conviction for a Level 4 Possession of a Firearm with a Prior Felony Conviction. You make it 4 years, 364 days, and 23 hours into your probation without a violation. In that last hour of your five-year probation you pick up a Driving While Suspended as a misdemeanor. Though you are required to self-report it, you don’t and you gamble your probation officer won’t find it. Incredibly, you go to your last probation appointment and your probation officer releases you successfully from probation. Yippee! Right? Maybe…
According to IC 35-38-2-1.8, a petition to revoke probation may occur before the “earlier of the following: (A) One (1) year after the termination of probation. Or (B) Forty-five (45) days after the state receives notice of the violation.” Yep, you read that right. You can be a year removed from probation, out living your life in peace, and a violation can be filed asking to revoke the suspended portion of your sentence for a violation they just discovered.
In the example of above, you could be facing 5 years in prison. All over failing to disclose and having picked up a new offense. Had you disclosed the violation prior to terminating probation, there is a chance the probation officer would have cut you slack and terminated you regardless. Heck, even if you did disclose it and a violation was filed on the driving while suspended…chances are there would be no penalty anyways. But, if you fail to disclose, the mitigating factor of honesty and accepting responsibility are now gone, and the prosecutor will be looking for blood.
Obviously, the example above is just one of a thousand examples. Some people are facing a major violation (one they know will result in full back up), and they choose to risk it. While that is not what they are supposed to do, that may make sense. These are conversations for lawyers and their clients. In the end, criminal law is often like life in general — honesty tends to pay off. Sometimes dishonesty and gambling pay off, but for every lie that succeeds, there are 10 that fail — and fail miserably. Should you choose to risk the system and you succeed unpunished, the lottery may be a good thing to play. For everyone else, the honesty jackpot usually pays more.
Should you or a loved one be facing a probation violation, give the experienced Indianapolis Criminal Defense Attorneys a call today at (317) 870-0019 or email us at info@banksbrower.com. We are available 24/7/365.