Violation of Probation hearings are unique in that the Judge takes on the role of the jury in determining the facts. A violation must be both wilful and substantial. New law violations need only to be proved by the state by a preponderance of the evidence. Technical violations must be proved to a “satisfy the conscience of the court” standard. Should the court find that a violation occurred, the Judge is not bound by the sentencing guidelines, and thus has a great deal of discretion in determining a sentence. A defendant cannot be violated for a condition of probation or community control if he is unable to comply. Likewise, a defendant cannot be violated if he makes a reasonable effort to comply. However, notwithstanding the more informal setting of a revocation hearing, the consequences can be severe.
Probation can be revoked for technical violations, but the state must still show that the violation is substantial and not merely trivial. For example, missing one drug counselling session may not be considered a substantial violation if the defendant gets back with the program. When a defendant gets back on track after a minor violation, it demonstrates a lack of a wilful or substantial violation.
Evidence of an arrest, without more, cannot be the basis to support a revocation. While a more relaxed evidentiary standard applies to revocation hearings, and hearsay is admissible, a violation must be based on more than just hearsay testimony. Hearsay from an arresting officer who did not witness the offense for which the defendant was arrested, without corroborating non-hearsay evidence about the offense charged, is not sufficient.
An experienced attorney knows how to navigate the issues surrounding the revocation of probation or community control. You are invited to call on Mr. Eisenberg, a Board Certified Criminal Defense Attorney, to give you the aggressive defense that you will need during this time.