Probation Violation Lawyer in San Diego County

California is increasingly turning to probation to save money over incarcerating non-violent offenders. If you have been charged with a crime in San Diego, you could be sentenced to probation in place of part or all of a potential jail or prison term, even if you are found guilty of a felony. While probation is […]

The post Probation Violation Lawyer in San Diego County appeared first on Vista DUI Lawyer and Criminal Attorney Peter M. Liss.

California is increasingly turning to probation to save money over incarcerating non-violent offenders. If you have been charged with a crime in San Diego, you could be sentenced to probation in place of part or all of a potential jail or prison term, even if you are found guilty of a felony. While probation is usually preferable to incarceration, those who receive this alternative sentence must carefully follow all the rules set out in their probation agreement or risk being sent to jail or prison. Unfortunately, it can be easy to accidentally violate these rules and end up facing additional penalties. While you can fight allegations that you violated your probation, you can only do so in a hearing, and the standard of proof is much lower in these cases than in regular criminal trials. If you have been accused of a probation violation in San Diego, your best chance to avoid additional consequences is to work with a skilled criminal defense attorney.

What are The Two Types of Probation in CA?

California has two levels of probation, one for those convicted of misdemeanors and one for those found guilty of felonies. Probation is optional, and while most people prefer probation, some would rather serve their sentence behind bars and then have total freedom when released.

Summary probation, sometimes called “informal probation,” is generally given for misdemeanor crimes. It is much less restrictive as it only requires you to follow a few basic rules and avoid further legal trouble.

Formal probation is reserved for felony convictions, as it involves a more stringent set of rules, including making scheduled visits with a probation officer and regular drug and alcohol testing. Those on formal probation may also be required to wear an ankle bracelet to monitor their location.

How Long Does Probation Last?

Usually, summary probation only lasts one year, while formal probation lasts two years. Whether the case involves a misdemeanor or felony, the judge can require a defendant to serve some jail time, and then spend the remainder of their sentence out of custody on probation. If someone is given probation, the maximum jail sentence is one year, regardless of whether the offense was a felony or misdemeanor —though this maximum jail time is typically reserved for those convicted of serious felonies.

There are exceptions when probation may last longer than the standard one- or two-year term. These include:

• The penal code specifies a unique probation period —for example, the probation for a DUI lasts between 3 and 5 years
• A financial crime involving over $25,000 —probation for these offenses usually lasts 3 years
• The offense was a violent felony

What are the Rules of Formal (Felony) Probation?

Probation agreements vary greatly based on a person’s criminal conviction, criminal background, history of drug or alcohol abuse, and more. For example, someone might be required to pay restitution to their victim, attend batterer or DUI classes, go through a drug treatment program, perform community service, or wear an ankle monitor. While negotiating your plea bargain or during the sentencing hearing following your trial, your attorney will typically work to secure a less restrictive probation agreement. Still, there are some rules that everyone on formal probation must obey.

Anyone on formal probation must submit to warrantless police searches of their bodies, cars, homes, and belongings at will. They must also submit to drug tests when asked, and many offenders will also be subjected to alcohol screenings. Because a felony conviction will make you ineligible for military service, participate in a jury, or possess a firearm, those on formal probation will also be ineligible to do any of these things. They must also meet a probation officer whenever they are told to do so, generally once a week at first. However, most probation officers will reduce the number of appointments as a person’s probation period goes on. They must also obtain the probation officer’s permission to travel anywhere outside the county, and moving outside the county requires a court order.

What are the Rules of Summary (Misdemeanor) Probation?

Summary probation agreements can have many of the same restrictions as a felony agreement, but these will be based on the specific circumstances involved. For example, those convicted of drunk driving must attend DUI classes.

One of the only universal rules for those serving misdemeanor probation is a prohibition against getting into any further legal trouble. Even then, most minor infractions, such as traffic tickets, will not count against you.

What is the Difference Between Probation and Parole?

Probation and parole are very similar, so it is no wonder so many people confuse them. Both allow a person convicted of a crime to live life outside of jail or prison as long as they follow the rules of their program. The difference is that probation is given as part of a criminal sentence when an individual is originally convicted, whereas parole is granted through a hearing with the California parole board. Probation allows individuals to serve part or all of their sentence outside of jail or prison, while parole permits a person sentenced to prison to be released early.

What are the Most Common Probation Violations?

Some of the most common probation violations include:

• not making restitution to the crime victim
• missing one or more meetings with a probation officer
• failing to fulfill community service sentences
• associating with known criminals
• being caught in possession of a firearm
• failing to maintain adequate employment or housing
• violating a restraining order against you
• testing positive for alcohol or drugs, including marijuana
• being arrested for a new criminal offense

While alcohol and marijuana use is legal for adults, most felony probationers are prohibited from using either substance. Judges often jail those who test positive, especially if the underlying offense involved the use of drugs or alcohol.

Notably, those on probation will almost always be required to attend a probation hearing if they have been arrested, even if no charges were pressed or if the charges are dropped. If this was due to a misunderstanding or a case of mistaken identity, your San Diego probation attorney can help you explain the situation.

What Happens if You Violate Probation in California?

Under California Penal Code 1203.2 (PC), it is a crime to violate probation. The consequences of this crime vary based on the underlying charges a person was convicted of. Violating probation can result in a sentence up to the maximum jail or prison term for the original crime you were found guilty of. A misdemeanor probation violation in California can result in a jail sentence of up to one year, while felony-level violations are punishable by time in prison.

If your original sentence was stayed as part of your probation agreement, a judge can sentence you to this original jail or prison term. Alternatively, a judge can resentence anyone on probation to the maximum length of the crime they pleaded guilty to, even if their original plea agreement put a cap on the sentence. If a judge does not wish to sentence you to incarceration, they may instead lengthen the term of your probation or add further restrictions to your probation agreement.

You must defend yourself as best you can in these hearings to avoid serving a longer sentence. The best way to do this is by working with a top probation violation hearing defense lawyer in San Diego.

What is the Standard of Proof for Probation Hearing Violations in California?

There is no right to a jury trial in probation violation cases, which means these hearings are decided exclusively by the judge. The standard of proof is a preponderance of the evidence, which is much lower than the standard of proof beyond a reasonable doubt required in a criminal jury trial. You still have the right to explain your side of the situation, introduce evidence, and present witnesses supporting your claims.

Fighting Accusations of Probation Violations

If you are accused of violating your probation in San Diego County, a skilled criminal defense lawyer is critical in helping to defend you at your hearing. He can present your side of the story and ask the court to avoid instilling additional penalties. There are many defenses to these allegations —for example, you could be a victim of a technological malfunction, or missed a meeting with your probation officer due to a medical emergency.

In some cases, those found to have not violated their probation or who did violate it for an excusable reason may be able to have their probation terminated early if their attorney can show good cause for doing so. Once your probation period has ended, you may even be eligible for an expungement. To schedule a free consultation with San Diego probation violation attorney Peter Liss, please call (760) 643-4050.

The post Probation Violation Lawyer in San Diego County appeared first on Vista DUI Lawyer and Criminal Attorney Peter M. Liss.