A Colorado Probation Violation Guide To Intelligently Defending Probation Violations -Colorado probation violation matters must be taken seriously. A sentence to probation is a kind of contract between you, the prosecutor and the Judge. When there is an alleged “breach” of that contract, you are “re-prosecuted” and exposed to some very dangerous situations – including prison and jail.
Some Basics About Colorado Probation Violation Cases – An Overview of Colorado’s Probation Violation Laws
Understanding the concept of a “violation of probation” can be confusing for many. Questions always arise such as – was this violation a “technical” violation or a “substantive or new crime” violation? Which term of probation was allegedly violated – how was it violated and why was it violated?
Also, questions arise as to whether there are legal defenses or mitigating circumstances that can explain how and why the violation occurred?
Probation violation hearings can be complex proceedings. Your lawyer must have had experience over many years to properly know how to create a compelling defense strategy that can will with stand close scrutiny in a Colorado Court of Law.
What IS A Colorado Probation Violation?
A probation violation occurs when a person who is serving a probation sentence – supervised OR unsupervised – allegedly commits an act contrary to their conditions of supervision.
When a person is placed on probation, they are presented a long list of “conditions” that must be met to successfully complete their supervision period. A violation of one or more of those conditions can be either a “technical” or a “substantive” violation.
What Are “Technical” Colorado Probation Violations?
By defining the term by what it is not – a “technical violation” NOT the commission of a new crime. Rather it is violating any one or more of the general or specific conditions of probation (see the list below). You could have a hot UA, fail to finish your public service hours, miss a scheduled meeting, fail to pay restitution or move without notifying your PO.
What Are “Substantive” Colorado Probation Violations?
The word “substantive” in this context – is analagous to “substantial”- something completely new. When it is alleged that you have committed a new crime while on probation – the motion to revoke is for a “substantive” violation. This is the most serious way to violate probation especially if the new crime is the same or similar to the old charge.
Note this – you cannot be prosecuted for a crime that was allegedly committed BEFORE you were placed on probation.
Examples Of Colorado General and Specific Terms And Conditions Of Probation
The best way to understand the conditions of probation is, like technical and substantive violations of probation, is also break them down into specific and general terms.
Another way to understand general and special conditions is this – at the time of the first visit to probation the probation officer will review the conditions of probation. General conditions apply to everyone who is placed on probation. Special conditions are order specifically in your case and are tailored to the charges and evidence in your criminal case.
Questions You Must Ask Yourself To Head Off A Violation Of Probation
Have you failed to report to any of the scheduled meeting with your probation officer?
Have you taken and passed all of your drug and/or alcohol tests?
Have you paid all of your court ordered fines, costs and restitution on the scheduled dates or by the scheduled time?
Have you perform all of your community service by the scheduled dates or by the scheduled deadline?
Have you made all of your scheduled Court Review appearances as scheduled?
Have you refrained from committing any new criminal offenses?
Have you completed all of your Court ordered – mandated rehabilitation treatment programs?
Have you moved from an approved residence to another residence without permission?
Have you changed employment without notifying your Probation Officer?
Have you left the state or the country without obtaining a travel pass and/or the permission from the Probation Officer and/or the Judge?
Initiation Of A Probation Violation Case – When The Colorado Probation Officer Decides To Pursue A Motion To Revoke Probation
When a probation officer determines that a serious probation violation occurs, he or she can proceed in one of two ways.
(1) Arrest Warrant – or Immediate Arrest – The PO can file a Motion To Revoke Probation and seek an arrest warrant – usually with “no bond” set on the warrant until the Defendant is brought before a Judge and advised. Additionally, the PO can arrest you at any time with or without a warrant if they have probable cause to arrest.
(2) Summons – The PO can file A Motion To Revoke Probation and request a summons be personally served on the Defendant – or the summons can be mailed to the Defendant – both methods will designate a courtroom location and a date and time to report.
In most probation violations, the probation officer submits the paperwork for the violation of probation to Colorado Judge who then typically signs the warrant which then issues for your arrest When an arrest warrant issues it can be one of the most frightening parts of any criminal proceeding including the probation violation proceeding.
Again as noted, a Colorado probation violation arrest warrant usually has a “no bond” provision which means you cannot bond out of jail right away. Today, the warrant is “e-filed “ which means it is digitally issued and entered into the Colorado warrants system much faster than in years past.
The Defendant, fearing an arrest at the next meeting with his or her probation officer may decide to stop reporting to their probation officer to avoid the arrest – and he or she may even “abscond” from the jurisdiction.
Why Absconding (Fleeing) Is The Wrong Decision
Absconding – A Bad Idea
When you flee to avoid being arrested on the Colorado Violation of – arrest warrant – or fail to report to your PO because you are afraid of being arrest – you usually are only making matters worse. By absconding you add additional violations of probation and the Judge will be less sympathetic to your case when you are sentenced.
Failing to report to your probation officer or absconding only makes the matter worse by causing additional grounds for the violation. Second chances are reserved for those who take responsibility and face their cases head on – choosing to try again at the successful completion of probation when you are eventually picked up on the warrant and brought before the judge.
“Surrendering” On The Warrant
There are times when a criminal defense lawyer can set up your surrender on an arrest warrant by adding the case the a Court docket on “docket day” and seek an immediate and reasonable bond on the case – perhaps even a release on personal recognizance (PR).
If the Colorado Judge will not agree to add the case to the Court docket, a Colorado criminal defense lawyer can arrange for you to turn yourself in on the warrant for violation of probation warrant at the jail, and then appear in court the very next morning to seek a reasonable bond and to set the matter for a probation revocation hearing.
The interim period of time to include the next court date – can be set far enough into a future docket that the Defendant may have the time to come into compliance with any outstanding probation violations before your next court date.
Finally, in a worst case scenarion – a criminal defense lawyer can try to get your probation revocation hearing set quickly – in a matter of days – to try to resolve the case with the best possible plea agreement and sentence (see below).
The Colorado Violation of Probation Hearing – How Does It Work?
Because I have written extensively on this subject before – I will include a shortened explanation of the Colorado Probation Violation Hearing in this article.
While often treated lightly by Defendants and some criminal defense lawyers, Colorado probation violation proceedings are critical since the Defendant often faces incarceration Even increased requirements added to the list of conditions to to complete probation – can often have a serious impact on life.
When the alleged violation is the commission of a new crime – a sentence in a probation violation matter can result in what is called a “stacked” sentence – a sentence which runs “consecutively“ to the sentence in the new case. This can be a very unfair result (see Sentencing Section below).
The basic rules that apply to Colorado Probation Violation are like the classic bad guy movei – there are practically NO RULES. These proceedings are very different than the rights that aply to trials for the original crime.
Some Of The MAJOR Differences Between Colorado Trials And Probation Violation Hearings
Hearsay Admissible – A big difference is “hearsay” (what people tell each other) IS admissible.
No Jury – There is no right to a jury trial – Colorado Probation Violation hearings are not trials at all – they are brief “hearings” usually before the orginal sentencing Judge.
The Quantum Of Proof To Convict – Rather than the very high burden of proof of “beyond a reasonable doubt,” unless the violation is based on the commission of a new crime, Colorado Probation Violation hearings require much less evidence to find the Defendant “guilty” of the alleged violations. The Judge only needs to find the evidence meets the “preponderance of the evidence.”
The Preponderance of the Evidence Standard Of Proof
A Preponderance of the Evidence means:
The greater weight of the evidence – The preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence.
Only one clearly knowledgeable witness, such as a probation officer who has read the file, is necessary to convict using this low standard.
Put another way, the Judge makes the decision to revoke based only upon a “preponderance of the evidence,” – which means a likelihood of only 50 percent that you are guilty.
The Reason Why Conducting A Probation Violation “Investigation” Is So Very Important
While it may be tempting to “roll over” in a probation violation case, the Colorado criminal defense lawyer should still conduct a thorough investigation to determine whether there are any legal, factual, or mitigating issues can be used at the hearing
Investigating the facts and circumstances surrounding the case means some, or all, of the following:
1. Researching and identifying potential legal defenses and all other, non-disclosed facts helpful to Defense. One example: did the Defendant make reasonable efforts to comply with the conditions of probation only to fail because of an incident beyond the Defendant’s control such as a medical emergency or mental illness.
2. Gathering any and all evidence to show an alleged probation violation term was defensible or otherwise “excusable.”
3. Obtaining all of the correct “original” documentation to make certain – to verify – the basis of the violation(s).preparation, including legal research and defense identification.
4. Interview – the Probation Officer and all other possibly harmful and helpful witnesses.
5. Obtain all of the “evaluation reports and review the Court’s file.
6. If relevant, subpoena and review the probation officer’s own file.
7. Finally, researching and locating sentencing alternatives to jail to present to the DA and to the Judge at sentencing.
How Can You Assist Your Colorado Criminal Lawyer In Defending The Colorado Probation Violation?
1. Detail a “rebuttal report” to each and every allegation of a violation of the conditions of your probation.
2. Put together a list of character witnesses who could testify for you and also ask for letters of your good character.
3. Diary of all significant events while on probation – all contacts and conversations with any of the players involved in your probation since sentencing in the case
Some Legal Issues And Reasoned Approaches In Colorado Probation Violation Cases – Some Ideas On Defending The Colorado Probation Violation
1. Was the Defendant informed – actually told about the term or condition at issue in the proceeding (never assume this)?
2. Was this a case of an “intervening – supervening” factor or act of another such as the loss of a job, an illness, unexpected car trouble or other circumstance out of the Defendant’s control?
3. Does this Court actually have jurisdiction to act in this case, or was there another Court or jurisdiction that has authority in the case? .
4. Did the Defendant receive proper notice of the alleged violation under Colorado law?
5. Did the alleged probation violation actually occur during the term or “period” of probation?
6. Has the original period of probation “run out” or was it unlawfully extended by probation? .
7. Was the term and condition of probation “reasonably related” to the Defendant’s case? ( a longshot!)
8. If restitution or non-payment of fines and costs is the alleged violation, was there a good faith attempt to pay and an inability to do so?
9. If a new criminal offense is the basis of the allegations, has the Defendant been convicted of that offense and did it actually occur DURING the period of probation in the case?
Sentencing Options In A Colorado Probation Violation Case
This article is intended to help the reader avoid the classic, unplanned, disorganized last minute approach to a Colorado Violation Of Probation Case. It is important to make clear at this point that if you are found to be in violation of your probation, irrespective if you “went to hearing” or entered an “admission,” the Colorado Judge can sentence you to any sentence that could have originally been imposed in your original case. This which means that you can receive the statutory maximum sentence for your particular criminal conviction or convictions.
If the evidence of a violation is impossible to defeat, and re-sentencing must occur, then the criminal defense lawyer should attempt to:
Help the Judge understand all of the “mitigating” information, and in serious cases, draft a Sentencing Memorandum for the Judge.
If there is the dreaded “suspended” jail or prison sentence situation, try to convince the Judge not to impose the whole or even a portion of that sentence.
Provide “alternative sentencing” ideas to the Judge and/or argue for additional or different conditions of probation to the Court to avoid jail or prison time.
Try to reach a “stip” (stipulation) or plea agreement with the District Attorney and the PO to present to the Judge for his or her approval.
Any sentence will answer these questions:
What was the seriousness of the probation violation? What are the aggravating and mitigating circumstances of the violation?
What was the exact nature of the violation?
Is there a “history” of previous probation and/or similar violations?
Is this a case involving the alleged commission of a new crime and was that new crime a misdemeanor or a felony?
What is the PO’s (probation officer’s) view of the violation and that person’s recommendation to the Court?
Did the alleged probation violation occur at the beginning, middle, or end of the probationary term, and has the Defendant performed well in all other respects?
If There Is No “Plea Agreement” In A Colorado Probation Violation Case
In the absence of any agreement with the prosecutor – a Colorado Judge, as noted, can modify your probation to order a punitive sentence such as jail or prison. The Judge can also lengthen the term of probation and/or to add provisions for a more intensive kind of probation, such as intensive supervision probation or ISP.
The Judge can also find that the allegations of this violation of probation are so minimal that revoking probation would be unjust and revoke but reinstate probation under the exact and original terms and conditions.
Finally, the Judge can find you in violation of your probation, extend the time of your probation, and impose additional “rehabilitative” conditions, such as additional community service, therapy, or classes, such as anger management or theft classes, to the orginal terms and conditions of probation.
Summary and Conclusion – A Colorado Probation Violation Guide To Intelligently Defending Probation Violations
It should be clear at this point that an experienced Colorado criminal defense lawyer can make a significant difference in a Colorado Violation of Probation case.
Because most, almost ALL Colorado Probation Violation cases are resolved through a negotiated plea agreement to avoid the broad authority of a Judge who finds a violation of probation and can sentence in the absence of an agreement to ANY sentence the law allows, a skilled defense attorney may be able to negotiate a much better result than can occur where there is an “open sentence.”
A Probation Violation Guide – To Intelligently Defending Colorado Probation Violations
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