Misdemeanor Probation Violation: Seven Steps


Probation Violation1.  Bad News from the Probation Officer:

The first step of a misdemeanor probation violation case is the bad news from the probation officer. You will learn that something is coming down the pipeline when you go in for your monthly visit with your PO, and he looks unhappier than usual. The PO tells you that you failed a drug or alcohol test, or haven’t been keeping up on your fines or costs of supervision, or picked up a new criminal charge. Whatever the news may be, it is bad news. The probation officer will file an affidavit with the prosecutor’s office, and report to them that you have failed at supervised probation.

2. Warrant and Arrest on Probation Violation:

Once the prosecuting attorney receives the affidavit, he will file a motion for probation violation and a request a warrant. The judge will review the affidavit and motion and likely issue a warrant for your arrest.

At some point, you will learn that a warrant is pending for your arrest. If you live in a county in Idaho where this information is made public information, like in Ada County, then you can monitor this site and wait for the warrant to appear. Once it shows up, you will want to make sure you have an attorney retained. Turn yourself in on the warrant as soon as possible.

3. Initial Arraignment:

After the arrest you will have an arraignment within 24 hours (unless during the weekend or a holiday). A magistrate judge will preside at the arraignment. If you are in a small town where there is only one magistrate judge, then you will get to see the judge who is handling your probation violation case. However, if your arrest was in a larger city, like Boise, where there are several magistrates, then you probably won’t be seeing your judge on the first day.

If the judge hasn’t set a bond on the warrant, or too high of a bond, you will not likely be able to address that issue at your initial arraignment. The magistrate judge who is handling your case that day will not want to touch the bond set by the sentencing judge.  You will likely be given a date to see your judge within a week or two if you remain in custody.  It may be longer if you the Court releases you.

4. Discovery:

The next step in your case will be to get all of the reports and allegations that the State is planning to use against you. Also, you will disclose to the State all of the evidence you will present in your defense. These materials are what we call discovery. You will see what they have against you to prove to the judge that you violated the terms of your probation.

5. Negotiations Between Attorneys:

The lawyers will attempt to resolve the case according to a plea agreement. Now they use a little bit different terminology when referring to a plea to a probation violation. You do not plead ‘guilty’ or ‘not guilty’ to a probation violation allegation. You either ‘admit’ to the allegations or ‘deny’ the allegations. If you ‘admit’ to the allegations you will proceed to ‘disposition.’ If you ‘deny’ the allegations then you will proceed to a ‘probation violation hearing.’

6. Probation Violation Hearing:

A ‘probation violation hearing’ is the equivalent of a trial in a new criminal case. There are differences between a trial and a probation violation hearing.

The first difference is, with a trial, you have a right to have the State prove the charges ‘beyond a reasonable doubt.’ The standard in a probation violation hearing is not ‘beyond a reasonable doubt’ but rather ‘by a preponderance of the evidence.’ What this means is the State does not have to prove their case such convincing evidence. The judge will only have to believe one side a little more than the other to make a finding.

There is a second difference. In a trial, you have a right to a trial by jury. In a probation violation hearing, you do not have a right to a jury trial. Instead, the judge will be the trier of fact in a probation violation hearing.

And finally the third big difference, in a probation violation hearing the rules of evidence are relaxed.  You do not have the same legal protections against things such as ‘hearsay statements’ and certain foundational objections to certain official documents.

7. Disposition:

If you either admit to the probation violation allegations or if you are found to have violated the terms of your probation after a probation violation hearing, then you will proceed to ‘disposition.’ A disposition is an equivalent of having a ‘sentencing hearing’ after the conviction on the original criminal charge.

At a disposition hearing, the judge must decide whether to reinstate you to probation or to revoke your probation and impose the original suspended sentence. If the judge decides to reinstate your probation, then he may impose a penalty for violating your probation. For example, he could impose some of the suspended jail (rather than all of it if he were to revoke your probation).

Boise, Idaho Criminal Defense Attorney

Craig Atkinson is the lead attorney at Atkinson Law Office,
Boise DUI and Criminal Attorneys. It is located at 1087 W River St #290, Boise, ID 83702. You can call him anytime at 208.571.0627.

Ask Craig to review your case.

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  1. My probation officer had reffered me to drug counceling, but when i had my evaluation the therapist said it would be a waist of my time to take the classes. she called my probation officer, and he didnt like the resaults then demanded i take the classes anyway. Can he go against er prefesional opinion.

  2. I mess up. I was doing good. But then I did have a drink and when I blew on my interlock device it came out with violation, second time fail, third time warning wich is still a pass, fouth time fail, fifth warn still a pass, sixt time fail and the sevent time pass. So im afraid what is gona happen when my probation see the report. Can u giveme some adivice please?

    • The only advice I can give you is to stop blowing on the interlock when you’ve been drinking, and if you are violated on your probation to immediately retain an attorney to represent you in your probation violation proceedings.

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