Why these hearings are different

In a criminal trial the State has to prove guilt beyond a reasonable doubt to a jury. A violation of probation hearing works differently. A judge decides it alone, and the State only has to show the violation by the greater weight of the evidence. Hearsay that would never come in at trial can be considered, though it generally cannot be the only basis for a finding.

That is a much lower bar, which is why these cases are lost by people who assume a violation is a formality they can explain away on their own.

Technical violations and substantive violations

A technical violation is a failure to comply with a condition. Missing an appointment with your officer, falling behind on fines or restitution, a positive or missed drug test, leaving the county without permission, or not completing required classes.

A substantive violation is a new criminal offense committed while on probation. These are more serious because you are now facing two problems at once, and the new case and the violation each affect the other.

What the court can do

If the judge finds a violation, there are three broad outcomes. The court can reinstate probation on the same terms, modify it by adding conditions such as treatment or extending the term, or revoke it entirely and sentence you on the original charge.

That last option is the one people underestimate. On a revocation you can be sentenced up to the maximum for the original offense, with credit for time served, regardless of how long you had already completed successfully.

What a defense looks at

• Whether the violation was willful. This is the key issue. A violation has to be both willful and substantial. Losing a job and being unable to pay is different from refusing to pay.
• Ability to pay. Failure to pay fines, costs, or restitution cannot be a violation if you genuinely could not afford it.
• Whether the condition was clear and whether you were actually told about it.
• Whether the evidence is more than hearsay. A probation officer’s report alone often is not enough.
• Whether the new charge in a substantive violation can be proven at all.
• Bond and release while the violation is pending.
• Mitigation. Treatment, employment, and compliance history all matter to what happens next.