Probation violations

A probation violation is any conduct that breaches the terms of a probation order. Common violations include:

• Failing to report to the probation officer as required
• Changing address without notifying the probation department
• Failing a drug or alcohol test
• Being arrested for a new offense
• Leaving Nevada without permission
• Failing to complete required classes or counseling
• Failing to pay fines or restitution on schedule
• Contact with the victim or prohibited persons
• Visiting prohibited locations
• Removing or tampering with an ankle monitor

Violations can be technical (failing to report, a missed payment, a missed class) or substantive, meaning a new criminal offense was committed while on probation. The type of violation has a large effect on the likely outcome at the revocation hearing.

A probation violation is not a new criminal charge, but it moves through a similar process. When the probation officer reports a violation, the prosecution presents the allegation to the court. The court typically issues an arrest warrant, and the defendant is brought back before the judge.

The defendant is then entitled to a probation revocation hearing. This is not a full criminal trial. There is no jury, and the standard of proof is lower than the criminal beyond-a-reasonable-doubt standard. The judge needs only evidence that reasonably satisfies the court that your conduct was not as good as your probation required. That is a low bar, well below proof beyond a reasonable doubt.

At the hearing, the defense can dispute the factual basis of the alleged violation and challenge the evidence. Even where the violation is not fully disputed, the defense can present mitigation and argue that the court should restore probation rather than impose the underlying sentence. Your attorney needs to prepare for both.

One difference from a criminal trial: the right to confront witnesses is more limited at a revocation hearing. Hearsay evidence is more freely admitted. The judge has wide discretion in how the hearing is conducted.

If the court finds a violation occurred, it has several options. It can:

• Restore probation with the same conditions
• Restore probation with additional or stricter conditions
• Extend the probation term
• Order a period of jail time while continuing probation
• Revoke probation entirely and impose the underlying prison sentence

Judges are more likely to restore probation when:

• The underlying offense was less serious
• This is the first violation
• There is a reasonable explanation for the violation
• The defendant has otherwise complied with probation conditions
• The defendant has completed classes, counseling, or treatment
• The defendant shows genuine remorse and commitment to compliance
• The defendant does not have a significant prior criminal history

Probation is a privilege, not a right. Some judges treat violations harshly regardless of the circumstances. Good representation at a revocation hearing means knowing what a particular judge is likely to do and presenting the strongest possible case for restoration.

When probation was granted, the court typically imposed a prison sentence but suspended it. The sentence exists, but it isn't served as long as probation conditions are met. Revocation un-suspends that sentence. The defendant goes to prison to serve the time that was previously held in reserve.

So the stakes at a revocation hearing are often much higher than they look. Technical violations, such as a missed meeting or a failed drug test, are handled first with graduated sanctions (NRS 176A.510). Once those are used up, the judge can impose a temporary revocation of up to 30 days for the first, 90 days for the second, and 180 days for the third. Full revocation for technical violations is allowed only on a fourth revocation or if you ask for it (NRS 176A.630). New crimes, absconding, and certain listed offenses are not technical violations and can lead to full revocation, which can mean years in prison if the underlying sentence is serious.

Working out exactly what the underlying sentence is, how much of it would actually be served given good-time and parole eligibility, and what arguments are available for restoration of probation requires reviewing the entire case history, not just the violation allegation. Call 702-990-0190 as soon as you learn of a probation violation allegation. The earlier the review starts, the more time there is to build the mitigation case.

Contact an attorney before the revocation hearing, before you speak to your probation officer about the alleged violation, and before any hearing is scheduled. The probation officer is not on your side in a revocation proceeding. Their report to the court forms the basis of the allegation, and statements you make to them can be used against you.

Begin gathering documentation that supports your position: evidence that the violation didn't occur as alleged, documentation of compliance with other conditions, records of program completion, employment history, and anything that shows good conduct since being placed on probation. The mitigation case at a revocation hearing is built from this material.

Probation violation representation is a flat fee set after a review of the underlying case and the alleged violation. Published fees for other matters are on the pricing page. Call 702-990-0190 today.

Once your case resolves, you may be eligible to seal the record, which removes it from background checks. If you were convicted and believe legal errors occurred at trial, an appeal may be an option.