Probation and Probation Violations in Massachusetts

What is Probation?

Probation is an alternative to jail for people convicted of a crime.  Probation can also be used as an alternative to a conviction to give people a second chance to keep their criminal record clean.  

People who are placed on probation by a judge are allowed to live outside of jail, under the supervision of the Probation Department of the court.  They often are assigned a Probation Officer who manages their case and makes sure they obey the terms and conditions of the probation as set by the court.  Probation will last a specific length of time, and will often involve fulfilling requirements like remaining employed, attending mental health or other treatment, remaining drug and alcohol free, or staying away from a particular person and/or location.  

It is important to understand that violating any terms of probation can lead to severe consequences. In Massachusetts, the legal system takes probation violations seriously, so if you have violated your probation, it’s important that you seek the guidance of an experienced Massachusetts criminal defense attorney

The Importance of Probation Compliance

Nearly one half of the American prison population is a direct result of failed probation or community supervisions. Each year, over 300,000 probationers, on average, are sent to prison as a result of violating the terms of their probation. In some states, it is not uncommon for over half of all probationers to violate the terms of their sentence.

Probation is a privilege granted by the court, allowing individuals to serve their sentences outside of incarceration under certain conditions. The most basic condition is to refrain from committing any crimes while on probation. Violation of any probation condition will likely result in a Notice of Probation Violation, and a warrant to appear before the court to address the violation.

If a judge finds that you have violated one of the terms of your probation, he can do any of the following:

-restore you to probation without additional penalty;

-restore you to probation but extend the length of your probation or add conditions, such as treatment programs or even house arrest;

-sentence you to jail/state prison for a period of incarceration up to the maximum for the offenses for which you are on probation.

Probation conditions must be followed strictly and completely, right up until the last day of your probation period.

Probation Violations

If probation officers discover that you violated your probation terms, they will file a “Surrender Notice” with the court. You will be required to appear at an initial surrender hearing, and will be sent a summons to appear in the mail. In some circumstances, instead of a summons the Probation Officer may request an arrest warrant to have you brought to court by the police.

At the probation surrender hearing to address the alleged violation, if the judge finds that you did violate a condition of your probation, you may be allowed to continue on probation, but with  stricter probationary conditions or restrictions on your liberty. The worst-case scenario is that your probation will get revoked, you can be sentenced to jail or prison time.

What Activities Can Constitute a Probation Violation?

Probation violations can be in the form of failing to comply with the terms of your probation, or doing something that violates your probation terms. The following is a list of common activities that can trigger a probation violation:

Failure to report—if you are on active probation, you will likely be required to report to your probation officer on a regular basis. A failure to report can result in a probation violation.

Use of drugs or alcohol—depending on the terms of your probation, you may have been ordered to refrain from using drugs and alcohol. If you were, you are probably subject to regular drug or breath testing. A drug test failure can result in a probation violation.

Failure to complete community service—this is not always a requirement of one’s probation, but when it is the probationer must timely complete the required hours or face a probation violation.

Associating with individuals you are required not to—probation that stems from a domestic violence incident, or other crime in which a victim is involved, will often require as a term of probation that the probationer stay away from that individual. Violating this condition can result in violation of probation.

Conviction of a new crime--- this will result in a probation violation, regardless of the crime.

Commission of a new offense—if you are arrested for committing a new offense, you can be found in violation of your probation—even if you are never charged with the new crime, or you are found not guilty.

What Happens Once I Am Accused of Violating My Probation?

When a notice of probation violation is filed with the court, you will receive a summons or a warrant will issue requiring you to appear in court for the “initial surrender hearing.” At this hearing, you will be brought before the court and receive formal notice of your alleged probation violations. Typically, your probation officer will summarize the allegations and the judge will determine if there is probable cause that you have violated probation. Additionally, he can order that you be held in jail without bail until your final surrender hearing. Given the possibility of imprisonment and the crucial nature of the judge’s initial determinations, it is in your best interest to retain an experienced defense attorney to represent you at the initial surrender hearing.

If the judge finds probable cause to believe a probation violation has occurred, you will then appear at a final surrender hearing, usually between three and seven days later. This is NOT like a trial before a jury. The rules are different, and your rights are limited. Most importantly, hearsay evidence is allowed, which makes it much easier for a probation officer to prove a violation.

At this hearing, your probation officer may call witnesses to prove the probation violation. You have the opportunity to cross-examine these witnesses. But often the evidence against you is strictly paper.

You do have the option to stipulate to the violation, and it can be in your best interests to do so if you can negotiate a favorable consequence for the violation beforehand. A defense attorney with negotiation experience will be your best bet to negotiating a favorable agreement that allows you to continue your probation.

What Should I Do If I Receive a Probation Surrender Notice?

If you find yourself facing probation violations, you should seek the help of an experienced criminal defense attorney immediately. A good criminal lawyer can assess the specifics of your case, help you understand your rights, and come up with a strategic defense. Here's how they can assist:

Legal Guidance: Criminal defense attorneys understand the intricacies of probation rules and laws in Massachusetts and can provide personalized advice tailored to your situation. They know what evidence is admissible in violation hearings, and under what circumstances hearsay is admissible. They can advise you about the options available and whether it will be better to fight the violation or stipulate to it and argue for a lesser penalty.

Courtroom Advocacy: At a probation violation hearing, an attorney can cross-examine the probation officer and any witnesses, and argue that the evidence does not establish a violation. In the alternative, he may be able to make arguments that mitigate the potential consequences.

Negotiation Skills: Your attorney may negotiate with the probation department or court to propose alternative consequences rather than immediate incarceration, such as additional counseling or community service.

If you receive a surrender notice, never ignore it. You should immediately contact an experienced criminal defense lawyer to help you determine the next steps you should take and understand the available options. It is far better to prepare and go in and address the violation than to be arrested on a probation warrant.

Contact Ernest Stone Today

Understanding the potential consequences of violating probation in Massachusetts is important for anyone on probation. Ernest Stone has almost three decades of experience defending good people in Massachusetts, including successfully defending hundreds of probation violation hearings.

If you or a loved one is facing disciplinary action for violating your probation, contact Ernest Stone today.

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Schedule a free case review online or by calling (978) 705-4537.

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