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Probation is an alternative sentencing program that helps to free up bed space in the prisons for more serious cases. Probation is typically given for nonviolent offenses, first-time offenders, and even defendants with relatively clean criminal records.
At its heart, probation is essentially a contract between the convict and the Commonwealth for conditional release or avoiding entry into jail. People only go on probation after they have been convicted of a crime or plead guilty. In many cases, probation is one of the specified terms of a negotiated plea bargain.
There are many hypertechnical aspects of probation that can lead to violations. You are required to report to your probation officer within 72 hours of any police contact. This can be something as insignificant as a being handed a parking ticket or something more serious, such as being questioned by police regarding a crime.
If you do commit a new violation of any other criminal law, this is a substantive violation that can lead to your entire probation term being converted into a prison sentence. Therefore, if you were sentenced to five years of probation, the judge has the discretion to resentence you to five years of prison if you violate. In the alternative, the judge can even lengthen the term of probation.
Technical violations can be anything defined by the court. They may require you to maintain a curfew, employment, and soberiety, and to pay off your court fines. Your probation officer may also require you to wear an ankle bracelet and to confine yourself to a certain area. You may also be restricted from having contact with the victim or co-defendants. In most cases, you cannot travel outside of the country or even the state without permission from your probation officer.
You also waive any rights to unlawful search and seizure when you enter into a probation agreement. This means that probation officers can enter your home at any time and check to ensure that you do not have any contraband; such as alcohol, drugs, or guns; and that you are not in violation of your curfew or other obligations.
You will have the right to plead your case and to representation by a probation violation attorney when you are brought into jail on a violation. These hearings are known as the Gagnon 1 and Gagnon 2 hearings.
The Gagnon 1 hearing must be held within 7 to 10 days from the report of the violation by the probation officer. At this hearing, the judge can decide whether or not the defendant should be freed from jail before the next hearing.
The probation officer is required to also establish a prima facie case that demonstrates that a violation occurred. This is typically established by the testimony of the probation officer if the violation is technical in nature or records of a new offense if the violation is substantive.
Nevertheless, a prima facie case is their narrative of the events, which can be disproven by factual evidence if it is incorrect. For example, if the probation officer claims that you were not home during your curfew, you may be able to offer evidence that you were home that is stronger than the testimony and clear up any misconceptions.
However, the Gagnon 1 hearing is similar to an arraignment, which formalizes the nature and cause of the violation and detention. The Gagnon 2 hearing is the final hearing where the testimony or evidence of the probation officer can be challenged.
At the Gagnon 2, the burden is on the prosecutor to demonstrate by clear and convincing evidence that a violation occurred. This is where your violation attorney can present evidence against the prosecutor and argue for leniency on your behalf.
Because probation is best suited for nonviolent drug offenses, many of the technical violations are related to failing drug tests or being out after curfew. Violations can also occur, however, when a relative or friend that you share living space with has beer or guns in the house.