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Probation Violations


1. Definition of Probation

Probation is a part of the sentencing process (unlike parole, which is imposed after prison). Probation allows you to either:

  1. Remain out of jail, or
  2. Shorten the length of your jail sentence.

According to California law, the purpose of probation is to rehabilitate, rather than punish, people convicted of a crime.

In reality, judges impose probation with both of these goals in mind.

A. Typical Conditions of Probation

Penal Code 1203 gives judges wide discretion to set the terms of probation.

As long as the terms logically relate to the conviction, judges can impose any conditions they see fit.

Some of the most common requirements include:

  1. A mandatory restitution fine,
  2. A requirement that you be electronically monitored,
  3. Community service or Cal-Trans roadside work,
  4. Individual or group therapy,
  5. A requirement that you not make contact with your victim,
  6. “Search conditions” (a provision allowing the police to search you at any time with or without a warrant),
  7. A requirement that you be gainfully employed, and
  8. An order not to violate any additional laws.

B. Conditions of DUI Probation

Some common probation requirements for DUI convictions, include:

  1. A requirement that you abstain from alcohol and drug use or attend a drug,
  2. An alcohol or drug program such as Alcoholics Anonymous or Narcotics Anonymous
  3. A requirement that you not drive with any measurable alcohol in your blood,
  4. A requirement that you not refuse to submit to a blood or breath test, and
  5. Installation of an ignition interlock device.

Defendants with multiple DUIs are often required to wear a SCRAM device as well.


1. Probation Violation Hearings

Defendants charged with a probation violation enjoy most of the same rights as defendants in jury trials. These include:

  1. The right to be represented by a criminal defense attorney,
  2. The right to call witnesses, and to use the subpoena power of the court to force witnesses to come to court and testify on your behalf,

  3. The right to present any mitigating or extenuating circumstances that may have contributed to your alleged probation violation,
  4. The right to testify on your own behalf, and
  5. The right to view the evidence against you.

B. Differences Between Hearings and Trials

One major difference between a probation hearing and a trial is that a judge decides your guilt, there is no jury.

Also, unlike a trial, the prosecutor does not have to prove the case “beyond a reasonable doubt.”

Instead, the prosecutor only needs to prove by a preponderance of the evidence that you violated probation.

“Preponderance of evidence” means that it is “more likely than not” that you are guilty.

In addition, at a probation violation hearing, hearsay evidence is usually admissible, as long as it appears reliable.

(Hearsay evidence is any statement not made by a witness testifying at the hearing).

It is usually banned in California courts because it denies the defendant the right to cross-examine the person who made the statement.


1. Penalties for Violating Probation

At the conclusion of your hearing, the judge decides whether or not you violated any terms of your probation.

If the judge finds that you did violated probation, then he or she will consider factors such as:

  1. Your criminal history,
  2. How long into your sentence you violated probation,
  3. The seriousness of the violation, and
  4. Any recommendations made by the probation department,

In order to determine what penalties to impose.

After considering these factors, the judge has several options. He or she may:

  1. Reinstate your probation on the same terms and conditions,
  2. Modify your probation with new, stricter terms and conditions, or
  3. Revoke your probation and sentence you to time in jail or prison.

If the judge selects the last of these options, you are entitled to credit for any time that you previously spent in jail.

Even if the judge determines that you violated probation, an experienced attorney can sometimes persuade the judge to simply modify your probation instead.

2. Common Probation Violations

The difficult terms placed on probationers mean that a large number violate their probation.

In 2012, about 40 percent of California probationers had their probation revoked or modified because of a violation.

Some of the most common misdemeanor and felony probation violations include:

  1. Failure to pay a fine or restitution (when you have the abilit),
  2. Failure to appear for a court date (“FTA”),
  3. Failure to report to your probation officer,
  4. Committing a new crime, and
  5. Not submitting to, or failing, a drug test (if submitting to drug testing was a probation requirement).

If you are suspected of any one of the above, your probation officer or a law enforcement officer may arrest you and bring you before a judge.

Alternatively, the judge may issue a California arrest warrant for your arrest (if, for example, you failed to report to your probation officer).

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