1. Bad News from the Probation Officer:
Obviously the first step of a misdemeanor probation violation case is the bad news from the probation officer. You will usually learn that something is coming down the pipeline when you go in for your monthly visit with your probation officer and he or she looks unhappier than usual. You will probably be told that you failed a drug test, or alcohol test, or haven’t been keeping up on your fines or costs of supervision, or that you picked up a new criminal charge. Whatever the news may be, it is bad news. The probation officer will file an affidavit with the prosecutors office, and report to them that in the probation officer’s opinion you have failed at supervised probation.
2. Warrant and Arrest on Probation Violation:
Once the prosecuting attorney receives the affidavit from the probation officer, the prosecutor files a motion for probation violation and request for a warrant with the judge who sentenced you to probation. The judge will review the affidavit, motion and request for the warrant 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 appears you will want to make sure you have an attorney retained, and turn yourself in on the warrant as soon as possible.
3. Initial Arraignment:
After you turn yourself in you will have an arraignment within 24 hours (unless you arrested during the weekend or a holiday), and a magistrate judge will see you. 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 you are arrested in a larger city, like Boise, where there are several magistrates then you probably won’t be seeing your judge on day one. What this means is, if the judge hasn’t set a bond on the warrant, or has set a bond on the warrant too high for you to post, you will not likely be able to address that issue at your initial arraignment since the magistrate judge who is handling your case that day will not want to touch what the sentencing judge has set in place. You will likely be given a date to see your judge within a week or two if you are going to remain in custody.
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, and to disclose to the State all of the evidence you will present in your defense. This is what we call discovery. This is your opportunity to see what it is that they are going to use against you to prove to the judge that you violated the terms of your probation.
5. Negotiations Between Attorneys:
Generally the attorneys will attempt to resolve the case pursuant to a plea agreement. Now they use a little bit different terminology when referring to a plea to a probation violation. You do not plea ‘guilty’ or ‘not guilty’ to a probation violation allegation. You either ‘admit’ to the allegation or ‘deny’ the allegation. If you ‘admit’ to the allegation you will proceed to ‘disposition’. If you ‘deny’ the allegation then you will proceed to a ‘probation violation hearing’.
6. Probation Violation Hearing:
A ‘probation violation hearing’ is the equivalent to a trial in a new criminal case. There are differences between a trial and a probation violation hearing. In 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 to as high of a degree. The judge will only have to believe one side a little more than the other to make a finding.
Which leads to the second difference between the two. 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.
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’. The is the equivalent of proceeding to a ‘sentencing hearing’ after you were convicted of 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 probation. For example he could impose some of the suspended jail (rather than all of it if he were to revoke your probation).
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.