Criminal defendants who are convicted of misdemeanors or felonies face the possibility of jail or prison time. However, in some cases defendants might get a relatively short sentence, or even avoid incarceration altogether. If the law that they’re convicted of allows it, the judge would have the discretion to order probation, which is supervised release.

When a judge grants probation, there’s always a catch: Violate the rules of probation and you’ll be facing the original sentence. For example, a defendant whose conviction exposes him to a year in the county jail might get a sentence of 30 days and a year’s probation, subject to terms and conditions (see below). If that defendant violates probation (doesn’t follow the terms and conditions), and if the judge decides that the violation is significant, the judge can revoke probation and send the defendant back to jail, to serve the balance of the one-year sentence.

Terms and Conditions of Probation

Probation allows defendants to avoid incarceration (or the full period of incarceration allowed by law), but probation always comes with strings attached (terms and conditions). Conditions of probation typically include:

• Regular check-ins with a probation officer. Weekly meetings are designed to keep tabs on the defendant’s physical whereabouts, as well as to inquire about progress on other requirements, as explained below.
• Restitution. Defendants may be ordered to compensate victims for the losses they suffered as a result of the crime. Restitution can include paying for lost items, the value of irreplaceable items, lost wages, medical bills, and so on.
• Community service. Judges can order defendants to perform work for the county or other government or nonprofit agencies or organizations.
• Drug testing. When the conviction is for drug use, defendants are often required to submit to regular drug tests, to prove that they are no longer using.
• Regular employment or school attendance. Defendants might be ordered to get a job or enter (or resume) school.
• Avoiding crime-prone activities and associates. A judge often orders defendants who have been involved in gang-related activities to stop associating with the gang. Or, a defendant convicted of domestic violence could be ordered to stay away from the victim.
• Random searches. Judges can require defendants to agree to random searches, which the police may carry out without the normal requirement of probable cause or a warrant.
• No firearms. Defendants whose crimes involved guns or the threat of gun violence may be ordered to turn-in their weapons.

Defendants have the right to refuse an offer of probation, which they might do if they decide that a stint in jail is less painful than the terms and conditions they’d have to accept as probationers. But once they’ve accepted the offer, they must abide by the rules. If they don’t, they risk being hauled back into court for a revocation hearing.

Probation Revocation Hearings

If a defendant’s probation officer thinks that the defendant has violated a term or condition of probation—by continuing to hang out with gang members, for example, or not showing up for scheduled check-ins—the officer can initiate a hearing in court. A prosecutor can also trigger a hearing, upon hearing that the defendant has been arrested (even if not charged) for a subsequent crime.

At the hearing, before a judge without a jury, the prosecution has the burden of showing that the violations occurred. Importantly, the standard of proof is not the same as the one applied in a criminal trial (beyond a reasonable doubt). Instead, the prosecutor need only show that it’s more likely than not that the violation happened. Ironically, a defendant could be acquitted of the triggering offense (or it could even be dismissed before trial), yet still have that incident serve as the basis for the revocation. The reason is that the standard of proof is lower for a revocation than it is for a conviction.

After the Hearing

A successful revocation hearing—one in which the judge concludes that the violation happened—can result in one of two outcomes:

• One more chance. Sometimes, judges are willing to reinstate probation, particularly when the incident was relatively minor. Or, the judge could amend or add conditions, in hopes of avoiding a repetition.
• Off to jail. If the judge finds that the violation occurred and is significant, the judge can impose the original sentence, or a variation on it.

Get Legal Representation for a Probation Violation Hearing

As you have seen, it’s relatively easy for the prosecution to prove a probation violation, because the stringent test of “beyond a reasonable doubt” is replaced by a mild standard of “more likely than not.” But the consequence of losing the hearing—being shipped off to jail—is harsh. You’ll need the skilled assistance of an experienced criminal law attorney, who can counter the prosecution’s evidence and arguments and, if you lose at the hearing, explain to the judge why immediate incarceration is not called for in your case.