Colorado Probation Violation Law – New Criminal Charges As A Violation of Probation
New Criminal Charges As A Violation of Probation forms the most serious basis for the filing of a Colorado complaint to revoke probation. This kind of complaint is considered the most serious way to violation probation…and within this genre of probation violations – committing the SAME crime again is the single worst thing you can do.
New Criminal Charges As A Violation of Probation
..is considered much worse than committing a different crime because it means that you are telling the judge that you have not taken seriously the chance that probation offers.
An example might be this .. if you are on probation for a D.U.I offense and are charged with a new D.U.I offense, it tells the court that you have not changed and you are likely to continue to “recividate” – that is – you are more likely to continue with the same line of behavior.
If you are on probation for a violent crime, such as First or Second Degree Assault, and you then violate your probation as a result of new charges of domestic violence it again demonstrates to the Court that you are still a violent person, and likely need to be incarcerated.
The Process To Prove The Violation and “Proof Beyond A Reasonable Doubt”
The difference between a Colorado Technical Violation) as a basis for a violation of probation is not only the more serious sentencing situation – it is the burden of proof on the prosecutor. When the violation of probation is based on a new criminal act – the District Attorney will most likely want to “trail” the probation violation until the new case is resolved in the court in which it has been filed.
Strong Policy Considerations Lead To Almost Certainly Continuing The Probation Violation Matter
The reason the DA will almost certainly agree to continue the probation violation hearing until the new criminal case is established is that the state frequently has not have had enough time to complete its investigation of the new criminal matter before the revocation hearing.
Between the two separate interests at stake in this situation – the probation department’s interest in the fast enforcement of probation conditions vs. the DA – prosecutor’s interest in presenting the strongest possible case in its effort to enforce the criminal law – the DA will win every time and the judge will agree… not wanting to try the new case in his or her court
H. Michael Steinberg as a Colorado probation violation lawyer has handled these cases for 30 plus years. He will look into every detail of your case to mount the strongest possible defense on your behalf.
“New law” violations will occur when you are on probation and you are arrested and/or charged with another – new – criminal offense. A “new law” violation can result from ANY new arrest or charge. Even a minor slip-up, such as driving on a suspended license, can turn into a probation revocation followed by a jail or prison sentence. The consequences of a Colorado New Offense Violation of Probation can be life-changing.
The situation may not be as confused as you consider it to be. Relevant factors include: the seriousness of the old violation, if you have violated probation in the past, aggravating circumstances such as how far along you are in your probation period, and like issues.
Minimum Due Process – vs Proof Beyond A Reasonable Doubt
Typically the “minimum requirements of due process” applies in parole or probation revocation hearings: Those minimum requirements are:
(a) Written notice of the claimed violations of probation;
(b) disclosure to the probationer of evidence against him;
(c) the opportunity to be heard in person and to present witnesses and documentary evidence;
(d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
(e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers;
(f) a written statement by the fact finders as to the evidence relied on and reasons for revoking probation.
The burden of establishing violation. – where an alleged violation of a condition of probation is a criminal offense, is establishing the violation beyond a reasonable doubt.
Unconstitutionally Obtained Evidence IS Admissible
The exclusionary rule is NOT applied in a Colorado probation revocation hearing. The overwhelming majority of cases from both state and federal jurisdictions have refused to apply the exclusionary rule to improperly seized evidence in probation revocation hearings. Unless there is what is considered “egregious police misconduct”, the exclusionary rule is not applicable to probation revocation proceedings.
Evidence Rules Are Greatly Relaxed In Colorado Probation Violation Hearings
The rule in Colorado is that a probation violation can be established by hearsay evidence, as long as the testifying – offering witness is subject to cross-examination by the defense.
The “Wobbler” As A Violation of Probation – Not Guilty Of The New Offense – But Technical Violation Results
If the New Crime case goes to trial and you are convicted – the violation hearing is a forgone conclusion – a new conviction is clear evidence that your probation has been violated. But if you are acquitted of the new charge – what then. While it is my opinion that the probation violation should be dismissed based on the failure to prove the new criminal charge – there is a wrinkle.
This may be a situation where – even though the “new crime” basis for a violation of probation may be dismissed – considering the lower standard of proof for technical violations of a “preponderance of the evidence” applied to a “technical violation” where you may now be prosecuted for a technical violation arising our of the “behavior” that led to the new criminal charge – (such as drinking – or possessing a weapon – or using drugs).
In other words – while unfair – you may now be prosecuted for the technical violation uncovered by the conduct that occurred during the alleged commission of the new crime which may then be used as an independent ground to violate your probation.
An example, suppose a probationer is charged with the crime of given alcohol to minors (Contributing To The Delinquency of a Minor). Let’s say he was acquitted of the new criminal charge because the witnesses were not credible and the DA did not have testimonial evidence at trial to satisfy the elements of the offense. Nonetheless the probationer can STILL have his probation revoked because of a violation of the ” no alcohol” term and condition in a Colorado DUI case.
Conclusion -New Criminal Charges As A Violation of Probation
Probation Violation Attorney in Denver, Colorado
If you, your loved one or someone you know is accused of or about to be accused of a violation of their probation – whether it was a deliberate act or happened accidentally – you need to consult with an experienced Colorado criminal defense attorney immediately. We have over 30 years of Colorado Criminal Law experience and we may be able to reduce or lessen the penalties you are facing if you contact us early in the probation violation process.
We encourage you to contact a The Steinberg Colorado probation violation law firm if you are in need of assistance and have questions about New Criminal Charges As A Violation of Probation.