What are my rights in a Probation Violation?

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The vast majority of criminal sentences in Indiana result in the Defendant being placed on probation. For example, you will commonly see misdemeanor cases where the sentence is “365 days in jail, all suspended to be served on probation.” What this boils down is one year of probation, with up to a year served in jail if you violate your probation. Probation always comes with a long set of rules and they can vary from case to case and county to county. Your probation officer should go over the rules with you at your initial probation meeting.

When someone is alleged to have violated the rules of probation, there are legal rights associated with that allegation and how it is resolved. They are similar to the rights associated with the original criminal case, but not exactly the same. The process will always start with the probation officer filing a “Petition to Revoke”, which notifies the Court that the probationer has broken the rules of probation, and it is usually accompanied with a request to hold the probationer in jail until the violation is resolved. 

The first hearing the court will set is an initial hearing. At this hearing, the court will inform the probationer of what rules they are accused of breaking, determine if they are going to hire private counsel, and explain their rights to them. Sometimes the judge may attempt to resolve the issue at the initial hearing by making an offer to the probationer. The judge might say, after explaining the rights, “If you admit to the violation today, I will give you 10 days in jail and then return you to probation.” This can happen when it is what you could say is a minor violation.

Probation violations always fall on a spectrum but how serious a violation is varies and is wholly determined by the opinion of the judge. For example, some judges may consider one missed drug screen to be a relatively minor violation, while the most serious violation is usually when someone on probation commits a new offense. On any probation violation, the judge can sentence you to a maximum of whatever portion of your sentence was “suspended” at sentencing. So, if someone has a suspended sentence of 365 days and the judge offers you to serve 10 days on a violation, that can be a pretty good deal.

After the initial hearing, the judge will set a hearing to resolve the violation. At this point you may have worked out an admission agreement where you agree to admit to violating probation in exchange for a lighter sentence. Otherwise, you have the right to a contested hearing where the state is required to present evidence against you. Unlike the original criminal case however, the state does not have to prove their case beyond a reasonable doubt. They only have to prove it by a preponderance of the evidence. In other words, they only have to prove that it “probably” happened. Also, the rules of evidence don’t fully apply so it is much easier for the state to present evidence to the judge. 

The majority of probation violations resolve by agreement for two main reasons. One, it is very easy for the state to meet their burden at contested hearings, so they almost always win. The other is that the amount of time suspended in a criminal sentence is usually very high and it can be scary for defendants to go forward without an agreement when they’re potentially facing a lot of jail time. 

If you or someone you know is facing an allegation of a violation of probation, I encourage you to reach out to the attorneys at Banks and Brower. We have extensive experience in dealing with probation violations. Whether it is resolved by agreement or at a contested hearing, we will do what we can to fight your case and get you the best possible outcome for your situation.