Many criminal defendants are placed on probation instead of being sent to jail. A court places a defendant on probation when he or she has been convicted of a crime, has accepted a plea bargain, or has been granted a stay of adjudication. The jail or prison sentence is stayed or suspended to give the defendant an opportunity to stay out of trouble, complete probation, and prove to the court and community that he has changed. It’s viewed as a lenient option for courts to control a person’s behavior without sending him or her to jail. For instance, a defendant who pleads guilty to a misdemeanor could receive 90 days of jail suspended for a period of 1 year. As such, the defendant is not sent to jail, but instead, the 90 days are “hanged” over the defendant’s head as an incentive for him/her to successfully complete probation.
Probation comes with several requirements that an individual must follow. These terms and conditions are unique to each individual and are usually based on the facts of the case, the defendant’s criminal history, the type of crime, and other important information. As long as the condition relates to the offense involved, a judge has the discretion to impose any condition he/she sees fit. A violation of probation meansyou have failed to meet or complete the requirements. If found guilty of probation violation, you could be required to meet additional requirements or be ordered to serve the jail or prison time that was stayed.
Common Probation Requirements
Some of the most common probation conditions include:
- An order to obey all laws and orders of the court
- A mandatory restitution fine
- A requirement that you abstain from alcohol and drugs
- Attend an alcohol or drug program if your offense was related to alcohol or drugs
- A requirement that you do not operate a vehicle with a measurable amount of alcohol in your system
- Installation of an ignition interlock device, which is usually imposed in connection with DWI convictions
- A requirement that you submit to random testing for drugs and alcohol
- A provision that you allow the police to conduct random searches on your person or property with or without a search warrant
- A requirement that you be gainfully employed
- No contact with certain people, especially the victims of a crime
- Community work service or sentence to service
- An order to commit no similar offenses
- Reporting on a regular basis to your probation officer
- Not leave the State of Minnesota without approval from your probation officer
- A requirement that you be electronically monitored, especially if convicted of certain sex crimes
- Not to use, own, or possess a firearm ( if on probation for a felony offense)
Let’s look at the following examples:
Joseph is a first-time DWI offender. In lieu of jail, he receives 3 years of misdemeanor probation and a driver’s license suspension. His probation conditions include a requirement that he abstain from alcohol and attend AAA meetings during the term of probation.
Angela is convicted of burglary. At the time of conviction, she is an unmarried mother of three. She receives 4 years of probation,and one of the conditions is that she does not get another child unless she is married. While on probation, she becomes pregnant and is called in for a probation violation hearing. However, the court decides that she cannot be punished because the probation condition is invalid and does not relate to her burglary conviction. It also has nothing to do with the possibility of committing another offense in the future.
The burdensome conditions placed on probationers in Minnesota often means that a large number of probationers are accused of violating their probation. Some of the most common probation violations include:
- Failure to appear for a court date
- Committing a new crime
- Willful failure to pay restitution or a fine when you have the ability to pay
- Failure to report to your probation officer
- Not submitting to or failing alcohol or drug test
- Traveling out of state without informing your probation officer
If you are suspected of any probation violation, your probation officer or a police officer may arrest you and take you to court. Alternatively, a judge can issue a Minnesota arrest warrant if, for example, you failed to appear for a court date or report to your probation officer.
Types of Probation Violations
Probation violations are classified into two categories: technical violations and direct violations. The type of violation involved helps determine the nature of the offense. In Minnesota, drug violations are intentional violations, such as not attending drug counseling, failing a drug or alcohol test, or not adhering to the travel restrictions. Even though these violations are intentional, they are definitely defendable. Conversely, technical violations are offenses that are usually unintentional. With these types of violations, it’s easier to prove that the error was not the defendant’s fault. For example, a person is considered to have been involved in a technical probation violation if he/she believes that the probation term is already finished.
Failure tostrictly adhere to all probation conditions will result in the filling of a probation violation report, which means going back to court. If you deny the allegations, the case will proceed to a contested hearing, known as a Morrissey hearing. In this hearing, the judge examines the evidence presented by both sides and decides whether or not you violated the terms of your probation. But if you admit to a probation violation or the court finds you guilty of probation violation, then your probation may be revoked or continued with or without additional consequences.
Probation Violation Proceedings
A probation violation proceeding typically commences with the issuance of a warrant or summons after a review of a written report showing that a probation violation has occurred. A summon is the most commonly used mechanism unless the court believes that a warrant is necessary to make sure the probationer makes an appearance. The warrant or summon must indicate:
- The probationer’s name
- The Judge’s signature
- A description of the original sentence and the conditions allegedly violated
- A statement showingprobable cause to believe there was a violation of terms of probation
- Conditions of release or the amount of bail
- For summons- an order directing the probation to make a court appearance at a specific place, date, and time
- For a warrant- an order directing law enforcement to bring the probationer before the court promptly
Probation Admit/Deny Hearing
There are two stages to Minnesota probation revocation hearings. The first appearanceis referred to as an “Admit/Deny” hearing where the probationer has the option of admitting or denying the alleged probation violation. Defendants in a Minnesota probation admit/deny hearing enjoy the same rights as defendants in criminal trials. Before the hearings proceed, you must be advised of your right to:
- A Minnesota probation violations attorney
- Disclosure of all evidence against you
- A hearing on the merits of the alleged violation, where you may call witnesses, use a subpoena to force witnesses to appear in court, present evidence, and present your argument
- Testify on your own behalf
- Present mitigating evidence or extenuating circumstances that may have led to your alleged violation or other reasons why the violation should not result in probation revocation.
If you admit the violation, the court will impose penalties it considers appropriate for the situation. If you deny the violation because you couldn’t come to a plea agreement with the prosecutor or you truly did not commit any probation violation, the court will schedule a probation revocation hearing within a reasonable time or within a week if you’re in custody. The court has the discretion to impose conditions of release before the hearing is held.
You do not have to go to an admit/deny hearing alone. A Minnesota probation violations attorneycan represent you and make your side of the story known. It’s worth noting that probation hearings are just as important as other court proceedings. If you’re found in violation of your probation, the potential consequences can range from being placed back on probation with or without additional conditions to jail or prison time. As such, it’s important to understand yourrights and have an attorney who can protect you from harsher consequences for an alleged violation.
Probation Revocation Violation Hearing
As is the case with the Admit/Deny hearing, you will be advised of the rights discussed above. One of the major differences between a criminal trial and a probation violation hearing isthat a judge presides over the hearing, no jury is involved. Also, the state’s standard of proof is less in a probation hearing. Unlike a criminal trial where the prosecutor must meet the high standard of “beyond a reasonable doubt,” the state only needs to show by a “preponderance of the evidence” that you committed the violation. This means that the prosecutor needs to show that it’s more likely than not that you violated probation. Another aspect that makes probation revocation hearings different is that rules of evidence do not apply in probation hearings. This means that some type of evidence that would not be admissible in a trial can now be used.
This type of evidence is known as hearsay evidence. In essence, hearsay evidence is any statementoffered in evidence to prove the truth of a matter that is not made by a witness testifying at the hearing. This is banned in Minnesota courts because it deprives the defendant of the right to cross-examine the individual who made the statement. In a hearing, the court will likely balance the defendant’s right to cross-examine and confront witnesses before the government admits the hearsay evidence in a parole revocation hearing.
For example, Francis is placed on probation following an assault conviction. One of the probation conditions is that Francis has no contact with his neighbor Jane, who was the assault victim. Jane calls the police to report that Francis came to greet her as she was watering her plants. Francis is called in for a probation hearing. One piece of evidence presented by the state against him is a letter from Jane saying that he talked to her- but Jane is not called in as a witness. In a normal criminal trial, the letter would be hearsay and would not be used in court.But the judge at Francis probation hearing may choose to have the letter used as evidence.
Regardless of the types of evidence that is admissible in court, a good Minnesota probation violation attorney will find a way to challenge all information the prosecution plans introduces at your revocation hearing.
Elements of Proof in Probation Revocation Hearings
The State bears the burden of proof to show that the probationer committed the alleged violation. The prosecutor must prove the following:
- A specific term or condition of probation was violated,
- The violation was inexcusable or intentional, and
- If the court determines that the probationer is guilty of a violation, then it must be shown that the need for confinement is greater than the policies favoring probation.
When making a decision based on the third element, the court will review the facts of the underlying offense as well as the probationer's intervening conduct. At this instance, the probationer is given a chance to present mitigating evidence to avoid the revocation of probation. Things such as continual contact with the probation officer, prompt and continual compliance with the other terms of probation, accepting responsibility for the violation, and any treatment or volunteer program completed following violation may show the judge that the violation does not indicate a greater problem and that probation is appropriate.
Preparing for a Probation Violation Hearing
If you’re out of custody, the best way to prepare for a probation violation hearing is by remaining compliant with your probationary conditions to your best level. That includes completing classes that were ordered, getting assessments done, and re-establishing contact with your probation officer. Meeting the probationary requirement and bringing proof that you did what was required will be a huge benefit to you. If you’re in custody, you’ll be relying on your attorney to gather pertinent information to show that you were in compliance with the probationary conditions.
Possible Penalties of a Probation Violation
At the conclusion of your probation revocation hearing, the judge determines whether or not you violated specific terms of your probation. If the judge finds you to be in violation of probation, he or she will consider factors as the seriousness of the violation, how long into your probation you committed the violation, your criminal history, and any other factors recommended by the probation department. These factors will be used to determine what penalties should be imposed.
The judge can choose to:
- Reinstate your probation without changing the conditions
- Modify your probation with new, stricter conditions, or
- Revoke your probation, meaning that you’re going to serve your jail or prison sentence.
If your probation is revoked, you’re entitled to credit transfer of the time you previously spent in a residential treatment facility, jail, or prison. For instance, if you were convicted of a misdemeanor punishable by a 1-year sentence, you could end up serving eight months in prison for that sentence. If your probation is modified, you could face additional fines, community service, house arrest, or meetings, and classes. There’s a wide range of possible penalties for probation violation, including extending the probationary period. For instance, if you’re placed on probation for a minimum of 3 years, but the maximum is 5 years, your probation could be extended up to the full 5 years to make sure you stay out trouble and meet all the requirements. An experienced Minnesota probation violation attorney can persuade the judge to modify your probation instead of revoking it.
Common Defenses to Probation Violation Charges
Here’s a list of six common defenses that may fit your situation:
You can’t pay your fines- Your charges may be revised or changed if you can show that you lost control of your financial situations due to no fault of your own.
The filling dates are incorrect- If an error is discovered in the assignment of probationary dates, your term may be amended, shortened, or dropped.
You have valid reasons for not reporting to your PO- You may have been unable to fulfill the condition of your probation due to hospitalization or incarceration. But be warned, excuses such as forgetfulness, lack of transport, or arriving late will be viewed as illegitimate.
You did not submit important documents for valid reasons- If you’re obtaining your GED or serving community service and fail to turn in documents, you can be charged with probation violation. If you couldn’t complete these requirements due to valid reasons, the court may accept your defense.
False drugs or alcohol test results- Tests may come back positive due to incorrect administration or consumption of food that threw off the results. Some judges will rule in your favor if you unknowingly took prescription drugs or alcohol while on probation.
You did not contact the alleged victim- If the alleged victim of a crime approaches you, you can gather emails and phone records to prove you did not initiate contact.
Find a Minnesota Probation Violation Attorney Near Me
Contesting a probation violation in Minnesota can be overwhelming. It’s not just a matter of failing to meet the requirements of probation. There are certain situations in which you had an emergency that forced you not to fulfill some of the conditions. While this may not excuse violation, a good criminal defense attorney can help prevent revocation. If you’ve been accused of violating probation, retaining the services of a skilled and experienced probation violation defense lawyer can help you avoid serious penalties that may be imposed by the court. An attorney can convince the judge to give you another chance or reduce the sentence imposed.Contact Ringstrom Law at 218-284-0484 today for a free consultation.