I am frequently hired to represent people facing probation violations in both Kentucky and Ohio. This can be a very uncertain and scary time for both clients and their families and I do my best to limit the damage and guide them through the process (and hopefully prevent their probation from being revoked).
Unlike with a pending criminal case, the presumption of innocence doesn’t apply to probation violations. As a practical matter, that means that clients are not guaranteed a bond will be set or that if it is set, the bond amount will be reasonable. So many of my clients alleged to have violated probation remain incarcerated until their violation hearing. I have had cases where defendants picked up new charges, posted bonds on the new charges, but were not given bonds or were unable to post the bonds on the underlying probation violation. So the reality for many clients is that they must sit in jail until their probation violation hearing is held.
The first thing I look at when I receive an inquiry about a probation violation is the underlying offense for which the prospective client is on probation. The nature of the underlying offense tells me a lot. Was it an offense where most offenders get probation or was the client lucky to get probation in the first place? Were the facts of case particularly egregious in any way? Was there a victim involved in the case? Were there any special conditions imposed on them due to violation?
After reviewing the underlying charges, I review the new violation. How serious is the new violation? Did the client pick up a new charge? Did they fail to report as directed? Was it a substance abuse issue?
And after reviewing the underlying charges and new violation, I will review the history of violations. Is this the client’s first violation or do they have a history of violations? Is this new violation similar to past violations? Is this new violation more severe or less severe than previous violations?
Once I’ve reviewed the client’s history on probation, I’ll consider the judge and my past experience with them. One of the advantages I have in handling a lot of probation violations is seeing how different judges treat probation violations. Some judges are more permissive, some more strict, and some have particular bugaboos that they care about.
In Kentucky, in addition to the the standard conditions imposed by the Department of Probation and Parole, judges are explicitly permitted to enact many specific and stringent and additional conditions as outlined in KRS 533.030. This can include geographic limitations on where a defendant can be, work requirements, financial requirements, medical or psychiatric treatment, and enhanced reporting requirements. The Kentucky Department of Probation and Parole only supervises clients convicted of a felony so misdemeanor offenders do not have to worry about reporting supervision, making the differences between receiving a misdemeanor and felony incredibly stark. In fact, the term probation only refers to felony cases; defendants who have time over their head for misdemeanors are placed on ‘conditional discharge’. Conditional discharge violations usually only occur when a defendant picks up a new case because that’s how the court and prosecutors learn of the alleged violation.
The general outlines of community control (probation) in Ohio are similar to Kentucky. The biggest difference between the states is unlike in Kentucky, in Ohio supervised probation can occur for both felony and misdemeanor offenses. This means that probation for a misdemeanor offense can still be incredibly invasive. The length of probation varies depending on the seriousness of the offense but cannot exceed five years.
When a defendant is alleged to have violated probation, they are entitled to a hearing. Unlike a trial, the evidentiary burden is no longer beyond a reasonable doubt–a very high standard. Instead, the State or Commonwealth only has to prove that a violation occurred by a preponderance of evidence (more likely than not). And the rules of evidence do not apply so hearsay can be admitted at the hearing. So defendants can be found to have violated by a probation officer that knows nothing of the violations reading a violation report or police report into the record.
Just because the deck is stacked against a defendant, doesn’t mean all hope is lost. Defendants still have the right to contest the evidence against them. And often the most effective defense is mitigation–yes, there was a violation, but revocation isn’t necessary or appropriate.
If you or a loved one are facing a probation violation, please reach out to Levinson Law LLC. We would be happy to guide you through the process.