Probation is often a tool used by trial courts and is normally within their discretion to order in most cases. It is obviously a desirous outcome for judges, the community, and defendant. Most of the time it keeps the defendant out of jail, at home and work, and the taxpayers from paying for criminal incarceration. However, violations of the terms of probation, such as drug use determined by a positive drug screen, may result in a violation of probation (VOP) being filed by probation and the defendant’s probation revoked and he or she sent to prison for the balance of the sentence. This blog covers four key points every defendant should know and consider if faced with a VOP filing.
First, unlike a criminal conviction, where the State has made its case against you (the one you are most likely on probation for) beyond a reasonable doubt, the State must show by a preponderance of the evidence the basis for the VOP. What this means is it is much easier for a defendant to be violated than convicted in the first place. For this reason, it is imperative to prepare a defense to the alleged violation, or if possible, have an agreement to an admission and terms. Unfortunately, many defendants do not consider this and just show up and admit to the violation, limiting any ability to minimize the implications of the alleged VOP or show it is untrue. An admission means legally it occurred as a matter of law.
Second, to prepare a defense, it takes time and must begin before the day of the VOP hearing. This preparation may require subpoenaing witnesses for testimony or having certified documents—all evidence–to present in your defense. Both of these types of evidence take time to procure. In addition, and related, it is important to fully work through the facts of your alleged VOP with your defense counsel to distill defenses. An alleged VOP is just that—an allegation—not a de facto determination by a court that you violated probation. However, to prepare a defense, as necessary, depending on the allegation, the facts must be developed and evidence determined; this, again, takes time and planning. The last-minute preparation the day of trial is likely too late and may erroneously lead to being violated.
Third, alternatively, skilled defense counsel may negotiate an admission to the VOP with the prosecution in advance for an agreement to a certain “plea” or outcome, such as admission to the violation where you stay on probation or only serve a short time in jail. In this case, assuming it is approved and ordered by the judge, the outcome is more certain than admission with no plan of defense or agreement. These steps minimize the risk of your worst day in court and outcome, namely revocation of your probation and serving your full back up time.
Fourth, a determination that a probationer is in violation of probation is a final appealable order. Therefore, it is key—if defending against the alleged VOP—to make the record at the trial court. In other words, the defense and the relevant evidence that is known to you to support your defense must be put into an admissible format and admitted into the evidence during the hearing for the trial court to consider in deciding on the VOP. Without this, it reduces the chances for relief (such as reversal) on appeal. Further, determination of a violation after a trial must be appealed within thirty days or the right to appeal is forfeited.
This blog is written by attorneys at Dixon & Moseley, P.C. who handle a wide array of criminal cases, including violations of probation, throughout the State of Indiana. This blog is written for general informational purposes. It is not specific or general legal advice or a solicitation for services. It is an advertisement.
