Probation Violations

San Diego County Criminal Defense Lawyer

There are many grounds for violating a person's probation, the most common being the commission of a new criminal offense.

If the person has already posted bail on the new offense, but is still on probation for a prior offense, especially if the probation is on a prior felony, most judges will remand the person to custody with no bail at the first court appearance on a presumptive probation violation, thereby revoking the bail previously posted on the new offense.

If the violation of probation is not based on a new offense, then there is probably already issued a warrant for the person's arrest, with either no bail or some substantial bail set on the warrant. If the person is picked up on the warrant, a hearing is usually set within 10 days, at which time it is possible to negotiate a reduced custody penalty – sometimes credit for time served – if the person admits to the violation and the violation has not been triggered by a new offense.

Most common probation violations not triggered by a new offense are "dirty" drug tests, not reporting to probation, absconding from the area, not completing a drug program, and not paying court-ordered restitution.

Alleged probation violations can be contested at an "evidentiary hearing" but bear in mind that the burden of proof is significantly less than that at trial – a mere preponderance of evidence, not proof beyond a reasonable doubt. Also, Fourth Amendment violations, i.e., illegal searches, cannot be raised at these hearings.

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