If a Defendant has been sentenced and is now on probation and not in custody, he/she is expected to comply with all terms of his probation. If he/she violates his/her probation (i.e., drinks alcohol; possesses a firearm; commits a new crime; fails urinalysis tests; or fails to appear when required, etc.) then the Probation Officer can file a “Petition to Revoke Probation”. In addition, the Probation Officer can issue an immediate “Warrant” for a Defendant’s arrest. The Defendant will be arrested and held “Non-Bondable” until the Probation Violation proceeding is finalized.
“Non-Bondable” means that no amount of money will get a Defendant released. The only way a Defendant can be released prior to the conclusion of the Probation Violation proceedings is to have the judge release him on his “Own Recognizance”. (See definition above). This is very rare, and requires a very skilled attorney to accomplish this type of Release.
The following is a chronological list of Probation Violation Case Stages:
Probation Violation Arraignment
The first court date is a “Probation Violation Arraignment”. The Defendant will either admit his violation, or set his case over for a “Probation Violation Hearing”. Most probation violations are readily apparent and it is usually wise to admit the violation to speed along the proceeding. A skilled attorney will have already met with the probation officer in order to try to work out a “Probation Violation Disposition” (see definition below). If this has occurred, then it is possible to have both the “Probation Violation Arraignment” and “Probation Violation Disposition” held at the exact same time. This usually will result in a Defendant being released much quicker and placed back onto probation or reset to “Intensive Probation.”If a probation officer is being difficult, it is sometimes wise to admit to the least offensive technical violation (i.e., failure to appear at a certain time) and set the case over for a “Probation Violation Disposition.”
Probation Violation Hearing
After a Probation Violation Arraignment is held (see definition above), and if no adequate disposition was agreed upon between the defense attorney and the probation officer, then a Probation Violation Hearing will be held. At this point, the prosecutor will bring in witnesses to testify as to exactly which terms of probation were violated. These hearings are very difficult to win due to the fact that “hearsay” evidence is allowed. The probation officer can merely repeat what other people said occurred, which can result in a violation. A skilled defense attorney can bring in witnesses to rebut any evidence that the probation officer may testify about. If it is found by the judge that there was no violation, a Defendant will be released immediately and placed back on his original terms of probation. If the judge finds that there was a probation violation, he will either conduct the Probation Violation Disposition (see definition below) immediately, or he will keep the Defendant in custody and set the case over for another court date.
Probation Violation Disposition
A Probation Violation Disposition is basically the equivalence to a “Sentencing” for a probation violation. (See definition above). At this point the judge has several options. He can “Revoke” the probation and sentence a Defendant to prison time based on the original sentencing range contained in the “Plea Agreement” (see definition above) or the sentencing ranges which were contained in the original “Sentencing.”
Another choice the judge has is to “Reinstate” a Defendant on probation for either the exact same terms he was on, or increase the probation by adding additional terms or place the Defendant on “Intensive Probation”.
“Intensive Probation” (sometimes called “IPS”) is a much stricter form of probation. This requires a Defendant to remain home when he is not at work (i.e., house arrest) and he must call the “Surveillance Officer” when he leaves for work every morning, and again when he arrives to work. He must do the same thing when he leaves from work to head home, and upon arriving to his house after work. In addition, the surveillance officer will pop over to a Defendant’s house and work much more frequently than he would if the Defendant were on standard probation. When the surveillance officer appears, he can demand a urine sample on the spot or a breath test to determine if any alcohol or drugs have been consumed. If the surveillance officer arrives and a Defendant is not home, refuses to allow the surveillance officer to enter the house, or refuses to provide a breath or urine test, then that can be grounds to file a Petition to Revoke Probation.
Possible Defenses / Resolutions for Probation Violations
Many alleged Probation Violations are what is known as “Term One (1)” violations. This means that the Defendant is being accused of committing a new crime while being on probation. It is very important to aggressively defend Term One (1) violations because, not only can the Defendant be violated on Probation, they also will receive a second offense sentence for the alleged new crime. The defenses for an alleged new crime would be dependent on the title of the new crime. If your case involves allegation of a new crime, search this website under the “Criminal Defense” Section to find the title of that crime and click under “Possible Defenses” to view crime specific defenses.
The “Common Defenses” for Arizona Parole Violation, which may apply in any criminal case are numerous and diverse. One of the most common defenses we encounter is a “Miranda Rights Violation”. In Arizona, the standard of whether any inculpatory statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “Voluntariness” standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements. In addition, “Denial of Right to Counsel” is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their lawyer, but is denied and questioning continues. In certain cases (such as DUI) it is mandatory that you speak to an attorney as soon as possible in order to determine your rights before your body burns away the evidence of your presumably low alcohol content. Other defenses for Arizona Parole Violation include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of your case. This could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; ballistics; gunshot residue testing; computer analysis / “cloning hard drive” procedures; forensic financial accounting reviews; etc. Lastly, one of the most common defenses is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction.
If the alleged violation is a “Technical Violation” (such as Failure to Report, Failure to Complete Counseling or a Failed Urinalysis Test), then we can attempt to negotiate with the Probation Officer for “Reinstatement of Probation”. The key is attempting to prevent the probation from being “Revoked” and prevent the Defendant from being sent to prison. Many times we are able to have our clients “reinstated” on Probation, however, there will be some new additional terms added to the Probation. These terms may be restrictive, but it is better than going to prison or jail. Be sure to review our Probation Violation victories and compare them with other lawyers in Phoenix.
It is important to hire an AV® rated law firm (the highest possible rating by Martindale Hubbell®) to assist you with Arizona Parole Violation. Also David Michael Cantor is a Certified Criminal Law Specialist, per the Arizona Board of Legal Specialization. In addition, the Firm and all of it’s lawyers are listed in the Bar Register of Preeminent Lawyers®. At the Law Offices of David Michael Cantor, P.C., the majority of our Attorneys are ex-Prosecutors, and all of our Attorneys know the system well. For a free initial consultation, call us at 602-307-0808, or click here to contact us now.