What Happens If You Violate Probation?

Probation lets a person serve a sentence in the community instead of jail, as long as they follow the court's conditions (Cornell LII). A violation puts that freedom at risk, but it does not automatically mean jail.

What counts as a violation

Technical violations break a condition without a new crime:

• Missing a meeting with the probation officer
• Failing a drug or alcohol test
• Not paying fines, fees or restitution
• Not completing classes, treatment or community service
• Leaving the area without permission
• Contacting a person you were ordered to avoid

New-offense violations involve a new arrest or charge, and are treated more seriously.

What happens next

1. The probation officer may handle minor issues informally or file a violation report.
2. The court issues a summons or a warrant. See bench warrants.
3. You may be held without bail or on new bail pending the hearing.
4. A violation hearing takes place.

Your rights at a violation hearing

Under Gagnon v. Scarpelli, probationers facing revocation are entitled to due process: written notice of the alleged violation, disclosure of the evidence, a chance to be heard and present witnesses, generally the right to confront adverse witnesses, a neutral decision-maker, and a written statement of the decision. The right to a lawyer depends on the circumstances under that case, and many states provide one by law.

The standard of proof is usually a preponderance of the evidence, lower than "beyond a reasonable doubt." There is no jury.

Possible outcomes

• Probation continues with a warning
• Added conditions: more testing, treatment, curfew, electronic monitoring
• Extended probation
• Short jail sanction
• Revocation, with a jail or prison sentence. In the federal system, the court can resentence the defendant under the original sentencing options (18 U.S.C. 3565).

Factors that help

• A first or minor technical violation
• Proof of employment, treatment and progress
• A good explanation, with documents (medical records, proof of payment attempts)
• Taking responsibility and having a plan

What to do

Contact your probation officer and a lawyer quickly, and do not ignore a summons. A criminal defense lawyer can often negotiate an alternative to revocation. For parole, see parole conditions.

Sources

1. Cornell Law School LII: Probation
2. Cornell Law School LII: Gagnon v. Scarpelli, 411 U.S. 778 (1973)
3. Cornell Law School LII: 18 U.S.C. 3565, Revocation of probation