Violating Probation
Interviewer: How does someone violate probation?
Some Alcohol-Related Conviction Require Random Testing as a Condition of Probation
Paul Tafelski: Let me give an example involving a drunk-driving case. Let’s say you get put on probation for drunk driving and one of the terms of probation is that you’re not allowed to use alcohol and you have to take random breath tests. With random breath tests, you usually have to call a phone number every morning and listen to a recorded message.
You will be assigned a certain color, and if your color is announced on that message, then you have to report to take a breath test between 7:00 a.m. and 9:00 a.m. somewhere designated by the court. Let’s also say you oversleep that day and you miss the test when it was your designated time.
Most courts will then send you a notice that you have violated your probation by failing to appear for the breath test, and then you’ll have to appear in front of the judge to answer that violation of probation. And so that would be one way to do it.
Another way would be is if you’re blue in the test, which means that’s a positive for alcohol. Another way would be if you don’t pay all your fines and costs. Another way is if you don’t complete your community service within a designated amount of time or you don’t complete your outpatient counseling as ordered by the court within the time allowed to do that.
Essentially, you can violate your probation for failing to properly complete anything that the court ordered you to do.
It Is a Violation to Be Accused of Another Crime While on Probation
Interviewer: What if someone gets accused of another crime while they’re on probation?
Paul Tafelski: That will always be a violation of probation. One of the terms of probation pretty much every judge will always give you is that you are not to engage in any new criminal activity. If you get arrested and charged with a new crime, technically you’re innocent until proven guilty, but that may not stop the current court from violating your probation. Their stance will be to prove that you were engaged in new criminal activity and, therefore, violated your probation.
What Are the Consequences of Violating Probation?
Interviewer: What are the consequences of violating probation?
Jail and Prison Terms Are Common Penalties for Probation Violations
Paul Tafelski: That’s what makes them so risky for people, because the consequences are anything at all that the judge wants to do up to the maximum penalty. Some misdemeanors have a maximum penalty of one year in jail; most are 93 days in jail. And felonies can have maximum penalties all the way up to life in prison. So if you violate your probation, the judge can choose to go easy on you or to be very harsh on you. And there’s really nothing to stop them.
So that’s why these things are so risky. And you take the example of a person who has never been in trouble before and they pick up a misdemeanor crime, let’s say, and they get put on probation. Well, they probably avoided jail time because they had a clean record and they presented themselves well at court and so they get probation instead of any jail time.
But then two months later, if they violate their probation, now all of a sudden they’re not the innocent little lamb that they were when they first came in. There’s a much greater chance that the judge is going to put them in jail. And if they then violate again on a second violation or a third violation of probation, the punishments get much more extreme, typically, because the court thinks that you’re being disrespectful in ignoring their orders.
How Are the Attitudes of the Probation Officers Toward the Individuals They Supervise?
Interviewer: Are the probation officers typically advocates for the individual? Or, could they be someone that could cause some problems?
Paul Tafelski: Usually, the probation officer is somebody who has a ton of people that they are supervising, and they have to stay very organized and they have to follow very diligent rules. And so some courts are more lenient and will work with the defendant more and cut them some slack.
Other courts have a zero tolerance policy and will just violate you as soon as you make one mistake. I like to tell clients that ninety percent may be an “A” on your algebra test, but it’s an “E” in your probation performance. You basically have to have a hundred percent to be sure that you’re not going to get into trouble with the court.
It Is Possible to Apply for an Early Termination of Probation?
Interviewer: When you’re working with a client, can you usually petition the court to end someone’s probation early for good behavior?
Paul Tafelski: Many times, we’ve been successful at filing a motion to terminate probation. And usually, we can come up with a good reason like they’re applying to college and don’t want to be on probation at that time, or they want to get into the military and can’t be on probation. There are a number of different reasons where it makes sense to terminate them early and we have been successful in those motions on a fairly regular basis.
Do Some Individuals Unknowingly Violate Probation?
Interviewer: What are the top misconceptions that people have about probation? Also, how do people violate their probation without meaning to?
Paul Tafelski: The most common situation where they violate when they don’t mean to is when they’re just disorganized, or they’ve got some other kind of personal problems going on. They just fail to meet their deadlines for completing things, or they oversleep and miss tests, or they accidentally take something that will cause them to have a positive drug test.
For example, somebody gave them cough syrup with codeine in it, and then they took it for a cold and tested positive on a drug test. It’s usually things where people are not paying close attention to what their obligations are where they’ll make a mistake and unintentionally violate.
Some People Do Underestimate the Seriousness of Probation
Interviewer: And what are some of the misconceptions that people have about probation? Do people take it for granted sometimes?
Paul Tafelski: Well, I think the biggest misconception is that it’s not a very serious process. And what I mean is that people think, for example, that I did almost everything right, and that that’s going to be good enough.
In most courts, that won’t be good enough. And it really is a situation where you need to become very familiar with the terms and conditions of your probation. You should be very familiar with what your probation officer expects out of you and make sure that you’re doing everything exactly the way they want it.
Probation Will Not Always Entail Drug Testing
Interviewer: In probation, will there always be drug tests involved?
Paul Tafelski: No, not always. It usually depends upon the nature of the crime and the defendant’s prior history. There would be a good argument for the criminal defense attorney to make to prevent drug testing or alcohol testing if the crime really had nothing to do with drugs or alcohol—and if the person doesn’t have a significant history involving drugs or alcohol.
Because some judges do like to throw that kind of testing into almost all probation sentences they give, but in reality, they’re not supposed to do it unless it’s got some relationship to the offense.
Is Missing a Meeting with the Probation Officer an Automatic Violation?
Interviewer: So what happens if someone misses reporting in to the probation officer? Is it an automatic violation?
Paul Tafelski: From my experience, most of the probation officers will work with you if you’re late or if you get stuck in traffic or you couldn’t get out of work, they’ll work with you. But if you just miss an appointment altogether, it would not be unusual for them to violate your probation just for that. They assume that you’re up to no good whenever you don’t do something that they told you to do.
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