PROBATION AND PAROLE VIOLATION
The Court has the discretion in many cases to suspend your sentence and offer probation instead. However, just as the Court has the discretion to offer probation, you have the right to refuse probation and instead serve your incarceration sentence. For that reason it is important that you understand how probation works and what it entails.
WHAT IS PROBATION AND HOW DOES IT WORK?
Probation is a means to allow a person to “work off” their sentence while remaining in the community. Probation suspends the person’s imprisonment so long as the person follows certain court ordered rules and conditions.
Some common conditions imposed on a person’s probation include:
- Performing community service;
- Regularly meeting with a probation officer at predetermined times;
- Refraining from using illegal drugs or excessive alcohol;
- Submitting to radom drug or alcohol testing;
- Attending educational and/or rehabilitative classes or programs (such as DUI classes, drug rehabilitation programs, or anger management programs);
- Avoiding certain places and people;
- Restraining orders;
- Appearing in court at requested times;
- Paying fines or restitution;
- Not traveling outside the State without first requesting and receiving permission from the assigned probation officer;
- Electronic location monitoring;
- Staying out of trouble (essentially, this means obeying all laws, even minor traffic laws).
Generally, the specific conditions set for probation are tailored to the underlying crime the person was convicted of: drug offenses are likely to require rehabilitation programs; gang related violence may require avoidance of certain people or places; theft or property damage will likely necessitate fines or restitution.
Please Note: It is important to remember that if you receive probation, it is imposed as part of a “suspended sentence” and you are not “off-the-hook” for your jail or prison time until you have completed the terms of your probation.
When is probation a possible alternative to jail or prison time?
Probation is a possible alternative in all misdemeanors and most felonies. In Nevada, there are only a few felonies where probation is not an option:
- Sexual Assault;
- Attempted Sexual Assault of a minor under 16;
- Lewdness with a child;
- Habitual criminals.
How long will my probation last?
Probation will usually last a period of 1-5 years, depending on the crime and your criminal history.
Generally, misdemeanors and gross misdemeanors carry probation terms of up to 3 years while probationable felonies carry probation terms of up to 5 years.
What if i can’t, or don’t, complete the terms of my probation?
Probation is clearly preferable to imprisonment in just about every situation. If you do not abide by the conditions of your probation, the Court has the discretion to revoke your probation, and reimpose the suspended sentence for imprisonment. Generally, probation violations include:
- Failure to complete the required community service hours;
- Failure to report to meetings with your probation officer;
- Failure to pass a mandatory drug test (wether for failure to submit or failure of the test);
- Failure to appear for a court date;
- Failure to pay fines or restitution;
- Failure to stay out of trouble (getting cited or charged with another crime while on probation;
- Failure to comply with other court orders (for example, court mandated courses, restraining orders, or behavioral orders).
If the Court, or other authorities such as the police, have reason to believe that you have violated the terms of your probation, you will be called in to Court in one of three ways:
- The Court will issue a summons, which will be delivered to your last known address. The summons will list a mandatory court date for you to appear and explain the violation;
- The Judge may issue a bench warrant for your arrest;
- With or without the above mentioned bench warrant, the police may arrest you and take you in front of the judge.
If you receive a summons, or notice of bench warrant, it is important that you contact an attorney as soon as possible. While the attorney will probably not be able to do much about the summons, except to request an extension if you cannot show up to court on the scheduled day, an attorney can file a motion to have a bench warrant “quashed” (a legal term meaning “stopped” or “thrown out”).
At the court date (whether scheduled by summons or after an arrest), the judge will likely schedule a hearing to determine if you did violate the terms of your probation.
Please Note: This process can be somewhat lengthy, between the Court sending a summons or issuing a bench warrant, the appearance for the summons or to quash the bench warrant, and the scheduling of a hearing to determine if you violated the terms of your probation. It is imperative that you continue to work on fulfilling the conditions in your probation during this time. The Judge is much more likely to look favorably on you if you show that you are determined to complete probation. In other words, if you continue trying to complete the probation program, the Judge may overlook a minor violation in favor of letting you continue to work on completing your probation.
Sometimes it is difficult to schedule your life around every condition of your probation. Classes, Court dates, meetings with probation officers, and community service requirements, coupled with the need to work so you can pay court fines and restitution can lead to a very full schedule. If you find that you have any problems with fulfilling certain terms of your probation (such as rehabilitation programs, educational classes, or community service hours) you need to contact the Court as soon as possible, preferably through an attorney. Many times, the Court will grant short extensions to assist in the completion of these conditions.
If, however, you are called in for a hearing to determine if you violated your probation, then you will have to prepare for what the Court refers to as a “revocation hearing.”
What is a revocation hearing?
Put simply, a revovation hearing is exactly what it sounds like: it is a hearing to revoke your probation. It is similar to a trial, where both the prosecutor and the defense are given time to argue in favor of their belief. In a revocation hearing, however, there is no jury, only a judge who hears both arguments and then determines if you did, in fact violate your probation terms.
Because a revocation hearing is similar to a trial, you have certain very important rights to keep in mind.
- Most importantly, you have the right to represented by a lawyer who can help ensure that the rest of your rights are upheld (also, at a revocation hearing, the prosecution only needs to prove that it is more likely than not that you violated your probation. This is a much lower standard than the beyond a reasonable doubt standard used in trial. Yet another reason that being represented by an attorney at a revocation hearing is important);
- You have the right to testify on your own behalf, and tell the Court your reasons for the alleged probation violation;
- You have the right to present evidence that supports your claims (of either having adhered to the conditions, or of why you were unable to do so and feel that you should not be penalized thusly), which includes calling and cross-examining witnesses.
At the close of the hearing, the Judge will make a decision about whether you violated your probation or not.
If the Judge determines that you did not violate your probation, then your probation will be reinstated and will continue on as if there had never been cause to believe you had violated probation.
If, on the other hand, the Judge determines that you did violate your probation, the Judge will enter one three rulings:
- In rare cases, the Judge may allow you to simply finish your probation as already set (this is very rare, and is only likely to occur in the circumstance where you can complete the original terms of your probation within a very short time of the revocation hearing, or where the violation was for a very minor infraction);
- The Judge may modify the terms of the probation to make it harsher (this is likely to be the case if your violation was minor – for example, if you missed a meeting with your parole officer, but were taking care of all of the rest of your terms, the Judge may impose electronic location monitoring for the duration of your probation, or may require more frequent meetings for the remainder of your probation);
- The Judge may completely revoke your probation and reinstate the sentence that was originally suspended in favor of probation.
If your probation is revoked, you will be facing either incarceration and/or house arrest. The Judge will determine the specific penalty by considering:
- The nature of your violation – was it serious, was it a combination of minor violations, etc.;
- Do you have a criminal record that preceeded the offense you are on probation for;
- How much of your probation you had already successfully completed prior to the violation;
Generally, Nevada Parole And Probation will also make their own recommendations to the Court based on these same considerations as well as your probation officer’s opinions.
Please Note: Generally speaking, if the Judge agrees to suspend your sentence in favor of probation, it means that the Court will be willing to work with you to ensure that you can complete your probation. That is why it is so important that if you encounter any difficulties in completing the terms of your probation, you contact the Court and/or an attorney so that you can be heard by the Judge regarding your difficulties, rather than ignoring the terms and ending up at revocation hearing.