Lawyers for Probation Hearings Boston
What is probation and what can it entail/include?
There are several types of probation in Massachusetts and all types can either be supervised or unsupervised (administrative probation).
A Continuance Without a Finding (CWOF) is a lower level of probation. It requires a defendant to admit to sufficient facts to support a finding of guilty. However, no guilty finding is entered and a defendant is placed on probation for some period of time. This is not considered a conviction or a guilty finding (this can be significant as, many times, job applications will ask if you have ever been convicted of a crime. With a Continuance Without a Finding (CWOF), a defendant can answer “no” to that question).
Straight Probation places defendant on probation with the court for a set period of time. If the defendant violates his or her probation, with straight probation, the court can impose a number of different sentences. A judge can add conditions, extend the probation, or give a jail sentence.
A Suspended Sentence is similar to Straight Probation, with one significant difference. If a person on a Suspended Sentence violates the terms of his or her probation, there is a presumption that a jail sentence will be imposed (the length of the jail term is determined by the court when the person is placed on probation. For example, a person may be placed on a sentence of 6 months in jail, suspended for 1 year. What that means is that the defendant will be placed on probation for a period of 1 year. If, during that year, the defendant violates his or her probation, there is a presumption that a judge will impose a 6 month jail sentence.
A Split Sentence is a combination of a jail sentence and a suspended sentence. A defendant is required to serve some period of jail time and, when they are released, are on a suspended sentence for some period of time. For example, a defendant sentenced to a split sentence of 1 year in jail, 6 months to be served, the balance suspended for 18 months would have to serve 6 months in jail. When they were released, they would be on probation for 18 months. If, during the 18 months, they violated the terms of their probation, the balance of the committed sentence (6 months: the committed sentence was 1 year, the defendant already served 6 months of that prior to being placed on probation), would be imposed.
There are certain conditions that are always going to be in place when someone is on probation. These include a monthly fee, reporting requirements (depending on the level of supervision, this can sometimes be done by mail), and a probationer must receive permission from their probation officer or a judge before leaving the state.
Additionally, there may be other conditions that the court imposes on a probationer. These may include random drug or alcohol testing, drug counseling, anger management classes, mental health counseling, or others.
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What is the court process for probation violations?
When someone is accused of violating their probation, there is a two-part court process.
First, a defendant will have an Initial Surrender Hearing. When a person violates their probation, their probation officer will either issue and arrest warrant or a summons for the defendant. Their first appearance in court after either being summonsed into court or arrested on the warrant, is their probation surrender hearing. At the initial hearing, the defendant will go before the judge, will be given a “surrender notice” describing what the alleged violations are, and a judge will make an initial determination if there is probable cause to believe that the defendant violated their probation.
The next part of the process is the Final Surrender Hearing. You are entitled to at least 7 days between the initial surrender hearing and the final surrender hearing (this can be waived by the defendant if they choose to do so). At the Final Surrender Hearing, the defendant can either admit (stipulate) to violating their probation, or go forward with a full surrender hearing. At a hearing, the probation officer must prove, by a preponderance of the evidence, that the defendant violated his or her probation. The probation officer must present some evidence to meet this burden. The defendant has a right to present their own evidence in their defense.
Between the initial surrender hearing and the final surrender hearing, a defendant will either be released by the court, or held without bail (detained).
What are the penalties if someone violates their probation?
For anything other than a suspended or split sentence, the judge can impose any sentence under the law if someone is found to be in violation of his or her probation. A Judge can add conditions, fines, community service, extend the probation, or impose up to the maximum jail sentence allowed under the statute. If a defendant is on a suspended or split sentence, the presumption is that the judge will impose the jail sentence that was suspended.
What are my rights at a probation violation hearing?
At a probation violation hearing, you have a right to force the probation department to prove that you are in violation by a “preponderance of the evidence.” There are limited rules of evidence at such a hearing. However, there are certain rules relating to hearsay and the sufficiency of the evidence based on case law specific to probation surrender hearings. You have a right to cross examine and challenge all of the probation department’s evidence. Also, you have a right to present your own evidence, and to testify on your own behalf (the decision as to whether or not to testify is yours, no one can make you testify at a probation surrender hearing).
Why you should hire a probation violation defense attorney:
Being surrendered on your probation is extremely serious. Depending on the type of crime that you are on probation for, it can result in a significant jail sentence. Also, it can affect your record in that a continuance without a finding, a result often agreed to preserve your record, can be converted into a guilty (a conviction), which can have a serious impact on your criminal record.
There are many ways to challenge an allegation that someone has violated their probation. Drug tests may be unreliable, witnesses might not be telling the truth, and there may be many valid defenses to allegations of a probation violation. Furthermore, your attorney may be able to negotiate a resolution with the probation department that can protect your record and avoid a jail sentence. It is important to be represented by lawyers who are experienced in handling and defending probation surrenders in order to protect your rights and make sure that you get the best possible outcome in your case.
Frequently asked questions
Can I be held without bail for probation violation?
Yes. Once a defendant is brought into court for an initial surrender hearing, a judge can detain (hold without bail) a defendant until the date of his or her final probation surrender hearing.
What happens if I am convicted of my probation violation?
If you are on straight probation or a continuance without a finding, and you are found to be in violation of your probation by the judge, he or she can impose any sentence permissible under the statute, up to the maximum jail sentence. If you are on a suspended or split sentence, and found to be in violation of your probation, the presumption is that the judge will impose the jail sentence that was suspended as part of your probation.
What if I fail to appear in court?
As with any court appearance, if you fail to appear, the court is likely to issue a warrant for your arrest. However, unlike with a typical criminal case, if you miss a court date for a probation violation hearing, the missed court date will be added as an additional basis of violating your probation.
What is a “technical violation” or probation?
People will sometimes use the term “technical violation” to describe a violation that they do not consider to be serious. All types probation violations are potentially serious and any can trigger a potential jail sentence.
What are some typical types of probation violations?
Any failure to abide by the terms of your probation is considered to be a violation. These can include being charged with a new criminal offense, missing a drug test, failing a drug test, failure to pay court fees, failure to pay restitution, failure to report to probation, missing a court a date, not completing community service, failure to complete 24D program, leaving the state without the permission of the probation department, failure to complete anger management or batterer’s program, or not abiding by any other conditions set by the court as a part of your probation.
At Eisenstadt, Krippendorf & Galvin, LLP, our attorneys have defended clients accused of violating probation in district and superior courts throughout the state. Our attorneys can negotiate with the probation department for alternatives to jail time, argue for you at a final surrender hearing, and work to protect you from the harsh consequences of violating probation.