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What is a probation violation?

Judge with gavel A violation of probation hearing in Maryland is a proceeding to revoke a Defendant's probation often resulting in that person going to jail for some or all of a sentence, can result in a striking of the probation before judgment (PBJ), or a civil monetary judgment that can impact your credit rating, as well as impact your "offender score" for sentencing guidelines purposes.

Someone who has been found to have been in violation of probation can get a greater sentence if they commit an offense in the future just for having that prior violation of probation. If you have a violation of probation in Maryland, you need to speak with a qualified attorney right away.

How are violations of probation filed?

After conviction for a criminal offense or a traffic violation for which you can be placed in jail, the Court, instead of, or along with, jail time for the offense has the option to suspend your sentence and place you on a period of probation overseen by a probation officer. The length of probation can be up to 5 years in Circuit Court and 3 years in District Court.

During the course of that probation, the Court can order that you be supervised by the Division of Parole and Probation and give you conditions of probation that you must abide during the term of probation. These conditions can include obtaining employment, maintaining the same residence, not leaving the state without permission, substance abuse counseling, abstaining from alcohol or drugs, obeying all laws, restitution, no contact orders, no trespassing orders, and a variety of other conditions.

These conditions are monitored by a probation agent who reports back to the report as to progress on probation and completion of the ordered conditions.

If the probation agent, or a state's attorney when probation is unsupervised, or even the Court itself, determines that one of the conditions of probation has been violated, the probation officer (or state) files a petition with the court stating each condition of probation that the person on probation is charged with having violated and an explanation as to the nature of that violation.

The court reviews the petition, and orders that a hearing be set in for proceedings for revocation of probation by warrant or summons. Often the petition itself will request either a warrant or a summons, but the judge is not bound by that recommendation.
If the court issues a warrant, you may not be aware that it is outstanding, and you might be arrested at your home, work, or the next time you report to your probation agent.

If you believe that you might be in violation because, for instance, you were confronted by your probation agent about a new charge or a positive urinalysis, it is possible to find whether a petition has been filed or a warrant has issued, and request that the warrant be recalled, or quashed.

What's at stake?

If found in violation of probation, you can be given all the jail time that had been suspended at sentencing for the original offense. This sentence can be consecutive to, or in addition to, any jail sentence you receive from a new charge that may have violated your probation.

However, all the back up time is not appropriate with more minor violation, and there are some limitation as to what a court can do with a violation depending on whether it is considered "technical" or "non-technical".

It is imperative that you have a criminal defense attorney to represent you at a Violation of Probation hearing to argue against jail, conviction, civil judgment, and impact on your criminal record.

Penalties for "Technical Violations"

A few years ago, the legislature enacted the Justice Reinvestment Act (JRA) that had the goal to reduce incarceration for non-violent offenders, and restructure the sentencing tendencies of some heavy handed judges.

A part of the JRA instructs that there be a "presumptive cap" on the amount of time a person can receive if found in technical violation of probation. A technical violation would be violation of a special condition that doesn't involve a new criminal offense, violating a no contact order, or absconding from supervision.

These would be cases of testing positive for controlled dangerous substances, failing to complete a treatment program, failing to pay restitution, or similar special conditions.

The presumptive cap for a person's first technical violation is 15 days, for the second 30 days, and the third 45 days. A fourth technical violation can result in a person receiving the entirety of their backup time.

These presumptive caps are not binding, and a court can exceed them if they make findings on the record related to, for instance, danger to the community, but for the most part, judges abide by the presumptive caps.

Penalties for "Non-technical" violations of probation

A non-technical violation would be one for receiving a new conviction while on probation, for failing to abide by a no contact order with a specific individual, or for absconding, which means failing to report to an agent for more than a couple times, and effectively blowing off probation.

While a speeding ticket isn't going to violate your probation, a new domestic assault conviction would.

With those violations, a person can receive the entirety of their back up time. It is important to note that even if you are found not guilty of a new charge, or the charge is otherwise dismissed, a State's Attorney can provide evidence to the court on a lower standard of proof that you failed to obey a law and convince the court that you have a ""non-technical" violation of probation.

How does a hearing on a violation of probation work?

A violation of probation hearing is conducted in an informal manner before the court and the strict application of the Rules of Evidence do not apply, although certain rules, for instance, related to proof of positive drug tests, still apply.

It is considered a civil hearing in which the State only has to show that you are in violation by a preponderance of the evidence, that is, more likely than not. A defendant has the opportunity to admit or deny the violation, to testify, to present witnesses, cross-examine the witnesses testifying against the Defendant.

In practice, the State's witness is generally the probation agent themselves, along with their case file. If found in violation, the Court gives the defendant the opportunity to make a statement and present information to the court to mitigate (lessen) the punishment that the Court may impose. For instance, you can provide information that you did not intend to violate a particular condition, or that circumstances were such that it was difficult to comply because, for instance, health conditions, or homeless, or without transportation.
While the hearings do have a lower standard of proof, defenses are available for violation of probation hearings.

Don't bring a family lawyer to your VOP hearing.

It is important to have defense counsel at every stage of the violation process, from the service of the petition to the hearing itself, and to coordinate with parole and probation as to how to quickly come back into and maintain compliance with probation.

Our firm has significant experience in Violation of Probation hearings, technical and non-technical, admissions and contested hearings, and have in some cases have had the violations dismissed in their entirety.

Do not wait until the hearing is just around the corner to hire an attorney, the more time that is available to prepare for the hearing, the better. And lastly, just because you have a pending violation of probation hearing does not meant that you do not have to report to your agent. Continue to report while the matter is pending or risk being found to have absconded from probation. Contact us to speak with a probation violation lawyer now.

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