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Colorado’s Probation Violation Hearing Law

Colorado’s Probation Violation Hearing Law

Colorado’s Probation Violation Hearing Law

By Colorado Criminal Probation Violation Defense Lawyer – H. Michael Steinberg

Colorado’s Probation Violation Hearings Law sets out the procedures Judges must follow in Colorado State Criminal Courts ( County Courts ) in the processing of Colorado probation violation cases.  What follows is the actual law that applies 16-11-206 with commentary to help you understand how the law applies in your case.

 

Colorado Probation Violation Hearings – How They Work

A sentence to probation can follow a trial ( a conviction ) or can result – much more likely – from a plea agreement intended to avoid a much more serious sentence in the absence of a settlement.

Probation – is the conditional release of a convicted defendant under enumerated terms and conditions.  Someone placed on probation in a drug possession case will be ordered to be drug free during the course of probation. A gang member having pled guilty to a gang related crime will be ordered to stay away from other gang members.

Many other conditions of probation will depend on the particular defendant as well as the facts of the case.  Judges will often design the conditions of probation to encourage the rehabilitation of the defendant.

Colorado’s Probation Violation Hearing Law – The Supervision Of The “Supervised” Probationer In Colorado

In the typical supervised probationary period, probationers are monitored by a probation officer. Part of nearly every probation sentence is the requirement that the probationers check in with their probation officer at regularized interval.

If there is a violation of probation – it is the duty of the probation officer to make the decision to: ignore the violation – increase the nature and severity of the probation, issue a summons (a complaint ordering the probationer to court) or request the probationer be arrested and taken back to court to answer for the violation.

This is called a probation revocation hearing and is the subject of this article.

The Colorado Probation Violation Hearing – Role Of The Probation Officer

The probation officer in Colorado is required to complete a complaint and report outlining the alleged probation violation in what is commonly called a probation violation complaint.  Along with this complaint – the PO will often send a confidential memorandum to the district attorney which memo contains an analysis of the probationer’s performance on probation and the recommended sentence or “punishment.”  While the prosecutor – DA is not bound by this recommendation – he or she will for the most part -follow it – in my experience in the absence of any other intervention or information. The lawyer can make a massive difference at this point in time.

Colorado’s Probation Violation Hearing Law – The Right To A Lawyer In A Colorado Probation Violation Hearing

As in the original case leading to the plea or conviction – the 6th Amendment guarantees probationers a  right to an attorney. If a probationer suspects their probation officer (PO) may “violate” them – they should contact an experienced Colorado probation violation criminal defense attorney immediately.

Where a probation violations may have arisen out of a misunderstanding between a probation officer and the  probationer, a seasoned Colorado criminal defense lawyer may have the capacity to “preempt” the filing of a complaint to revoke probation – by speaking to the probation officer and  persuading that person to give the client a “second chance.”

Failing that approach – or having been retained after a complaint is filed – a good Colorado criminal defense attorney – can offer the PO multiple options – or ways to deal with actual violations, which might result in a much less severe recommendation by the probation officer.

The Actual Colorado Probation Violation Hearing Goes Forward

At times – the parties have no other choice but to take the matter “to hearing.”

A Colorado probation revocation hearing will normally proceed as follows:

(1) The Advisement Hearing.

and – then,

(2) The Full Evidentiary Hearing. (The taking of sworn testimony)

The advisement hearing is just that – a Colorado judge or magistrate will advise the defendant of the complaint and ask whether he or she either admits or denies the violation. At times – when the alleged probation violation is minor and the evidence amassed against the accused very strong, it may be a much smarter alternative to simply admit the violation and proceed to sentencing.

“Throwing Yourself” On The Mercy Of The Court 

AT the sentencing phase of the violation – the attorney will explain the violation to the judge and then ask to “reinstate” the grant of probation.  A wise judge most often will appreciate the probationer taking responsibility for their mistakes and for saving the Court precious court time. The Court may or may not then grant the request. There is some risk in this approach of course.  

By admitting the violation and “throwing yourself on the mercy of the court” – unless you are VERY FAMILIAR with this particular judge’s temperaments – this may be a very risky proposition. only those extremely familiar with that judge and his temperament should make this judgment.  If you do not know what THIS judge considers to be a “minor violation” and you walk into this tactic blind without a “game plan” – you may end up serving a long jail sentence.

Taking The Case All The Way To A Probation Violation Hearing

If – on the other hand – the accused probationer does not admit ANY of the violations and therefore denies the complaint to violation probation – the judge then takes the matter to Phase II…. and schedule a “full evidentiary hearing” – usually within two weeks – giving the probationer an opportunity to obtain a lawyer to represent that person at the hearing. The better practice – of course – is to retain a lawyer BEFORE the advisement hearing so the lawyer can make a clear strategic decision on how to proceed.

The Colorado probation violation hearing takes place before a judge There is no right to a jury.

At the hearing, the prosecutor will call at least one witness – a probation officer to prove the probation violation.  On the other hand unlike a trial instead of proof  “beyond a reasonable doubt,” the standard of proof is only by a  “preponderance of the evidence.” 

Many persons on probation treat the revocation hearing lightly – not comprehending the significance of a finding of guilt. Not only is a person facing jail and or prison – if the defendant is on a deferred judgment and sentence they are facing a lifetime permanent conviction that can have a devastating impact.

The Role Of A Seasoned and Experience Colorado Criminal Defense Lawyer In A Colorado Probation Violation Case

A solid and well argued case is essential in this environment – this is not a time to be frugal and do it yourself in my opinion. If the probationer has difficulty expressing themselves in court, the result could be a misunderstanding that results in a harsh and very unfair result. Judges DO NOT read minds.  Lawyers are trained through school – but more importantly – professional experience – to  present evidence which will introduce to the judge – the only decision maker in this context – all of the exculpatory and mitigating evidence that supports a merciful and just result.

A well established and well regarded Colorado criminal defense lawyer may be able to persuade  a DA and or judge to take a different path then first intended and decrease the final sentence. In Colorado sex offender probation violation cases – which are difficult to negotiate – this might result in dodging the imposition of a life sentence.

The Window Of Opportunity To Effectively Intervene In A Colorado Probation Violation Case May Be Short

The window of opportunity to intervene in many of these cases may be short.  For a lawyer to effectively intervene – there must be sufficient time to investigate the history of the case in order to make a difference.

The consequences of a Colorado probation violation – as has been noted – can be severe and life changing. To protect your rights and enhance your chances of a good result – you need to not delay – but rather at least contact and consult an experienced and reputable defense attorney as soon as possible.

Here is the Actual Probation Revocation Hearing  Law That Controls The Probation Hearing

[HMS – with my analysis in brackets]

§ 16-11-206.   Revocation hearing 

[HMS – Sections (1) and (2) address the requirement that the probationer be advised of the complaint to revoke at the first  – or advisement hearing]

(1) At the first appearance of the probationer in court or at the commencement of the hearing, whichever is first in time, the court shall advise the probationer as provided in section  16-7-206 insofar as such matters are applicable; except that there shall be no right to a trial by jury in proceedings for revocation of probation.

(2) At or prior to the commencement of the hearing, the court shall advise the probationer of the charges against him and the possible penalties therefor and shall require the probationer to plead guilty or not guilty.

[HMS _ Section (3) address the burdens of proof for technical violations and for probation violations based on new crimes.

(3) At the hearing, the prosecution has the burden of establishing by a preponderance of the evidence the violation of a condition of probation; except that the commission of a criminal offense must be established beyond a reasonable doubt unless the probationer has been convicted thereof in a criminal proceeding.

[HMS – The following part of Section (3) designates that even a lower burden of proof is required – prima facie – or bare bones case – when the alleged violation is the non-payment of fees or restitution]

When, in a revocation hearing, the alleged violation of a condition is the probationer’s failure to pay court-ordered compensation to appointed counsel, probation fees, court costs, restitution, or reparations, evidence of the failure to pay shall constitute prima facie evidence of a violation.

[HMS – The next provision addresses the preference for “trailing” a probation violation hearing when it is based on the alleged commission of a new crime.]

The court may, when it appears that the alleged violation of conditions of probation consists of an offense with which the probationer is charged in a criminal proceeding then pending, continue the probation revocation hearing until the termination of the criminal proceeding.

[HMS – This provision lifts the normal requirements of strict adherence to the Colorado Rules of Evidence – the impact of this means that ANY evidence – as a practical matter – is admitted.. Not good news to the probationer.]

Any evidence having probative value shall be received regardless of its admissibility under the exclusionary rules of evidence if the defendant is accorded a fair opportunity to rebut hearsay evidence.

[HMS – This provision sets short time limits – 14 days for those in custody – unless good cause is shown to continue a hearing past that deadline.]

(4) If the probationer is in custody, the hearing shall be held within fourteen days after the filing of the complaint, unless delay or continuance is granted by the court at the instance or request of the probationer or for other good cause found by the court justifying further delay.

[HMS – Finally the following provision requires a judge to impose a sentence within 7 days IF the Court finds a violation of probation and then permits the Court to impose ANY SENTENCE that “might originally have been imposed – in the absence of a plea agreement. This essentially means the Judge has free reign to do whatever he or she wants as long as it is within the range of possible sentences for the conviction at hand.]

(5) If the court determines that a violation of a condition of probation has been committed, it shall, within seven days after the said hearing, either revoke or continue the probation. If probation is revoked, the court may then impose any sentence or grant any probation pursuant to the provisions of this part 2 which might originally have been imposed or granted

Colorado’s Probation Violation Hearing Law

Probation violations in Colorado can quickly result in much more severe penalties than the original plea agreement for the criminal charge. This is the time to contact our law firm for a free and immediate phone consultation to discuss your situation…If you have questions about the subject of this article Colorado’s Probation Violation Hearing Law – please call me –  H. Michael Steinberg.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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