Violation of Probation
When you are placed on a period of probation by the court, there is a good chance that the court has demanded that you meet certain requirements as a condition of your probation. These can be things such as random mandatory urine testing, completing a court-ordered rehabilitation or counseling program, completing community service, meeting regularly with probation officers, or making restitution payments in your case. If you are accused of failing to meet one or more of these terms of probation, a judge can charge you with a violation of probation.
Statistics show that more inmates are incarcerated for violating probation than are incarcerated for the original offense for which they were convicted. When a probationer is arrested for a violation of probation, judges are punishing individuals for not being able or willing to meet the demands of the court rather than punishing them for actually breaking the law. Statistically, the penalties for violating probation are extremely harsh, at times being worse than the original sentence that was set aside in favor of probation. Typically probation violations result in arrests with no bond, even if the initial charge was eligible for bond.
The good news is that there have been recent changes in state law that allows for an “alternate sanctioning” program, which creates a cap on penalties for probation violators who have never been violated in the past or for being a low or moderate risk violator. Such a cap would not allow more than 90 days in jail for violations of such offenders, even if the original sentence mandates prison time for violations. The even better news is that this program actually calls for minor punishments for these violators, often calling for community service rather than jail time.
In order for a probation officer or judge to be able to legally violate a term of an individual’s probation, Florida law requires that the terms of probation be legal in regards to the offense committed. For example, if a probationer has been convicted of a crime such as driving without a license or petit theft, then such an individual may not be required to complete drug treatment as a condition of probation, as such a probation requirement is not legal and would be overturned by an appellate court as a condition. Also, a probationer may not be violated and arrested for failing to adhere to a condition of probation if such a condition is not legal.
At times, a court may impose a term of jail or prison as a condition of probation. However, if the length of the jail term exceeds a certain predetermined time frame, then such an imposition may be illegal. Under Florida Law, Section 948.03 subsection 2, it is clearly stated that if a court “imposes a period of incarceration as a condition of probation, the period shall not exceed 364 days”. There are two relevant cases in which the appellate courts have overturned such jail term conditions under the above statute. In the case of Filpuula v. State, 106 So.3d 45, a judge sentenced the defendant to two years in prison as a condition of probation on a charge of possession of a prescription drug without a prescription and possession of cannabis with intent to sell. On appeal, this condition of probation was overturned by the appellate court due to the violation of the statute. Clearly this is a problem for courts to get right because in yet another case, Williams v. State, 67 So.3d 249, the appellate court ruled that imposing a 48-month prison term as a condition of probation violated the state statute and was thus an illegal sentence. The condition was subsequently overturned.
Of all of the probation violations filed in the state of Florida each year, a large percentage of these are for “dirty urine” or positive drug tests. Previously these violations were much more difficult to prove because essentially a positive drug test requires scientific evidence to back it up as urine testing is considered a scientific test. Unfortunately, some rather intimidating new case law in the state is now allowing courts to admit scientific evidence without having to back it up with expert testimony. This means that the prosecution may now use this to sneak these positive drug tests into evidence, based solely on the testimony of probation officers, who are not expert scientists or even scientists at all. It should be obvious that if the state is unable to produce any witness to explain the positive drug test other than the probation officer, the evidence should not be admitted. However, the courts are making such proof an optional matter in these cases.
Diluted urine is an entirely different situation. In this case, the prosecution is essentially admitting that their testing was unable to find anything wrong with the defendant’s urine. In the US, a defendant is supposed to be innocent until proven guilty, right? Diluted urine simply means that the government was unable to find any drugs in the urine sample. Unfortunately, this hasn’t prevented Drug Courts and their programs from sanctioning and violating their participants for coming up diluted even though there is no evidence of any wrongdoing. If a defendant is violated for a diluted urine sample, this type of violation often will not stand up in court due to the fact that the prosecution has no proof of what caused the diluted result. If the lab report does not explain the reason that the urine was diluted, for example, the detection of the presence of some sort of masking chemical to hide drugs in the urine, there is no way for the state to prove that a violation occurred. Some probation officers have gotten wise to the diluted urine defense and have attempted to get around it by having defendants come in early in the morning for urine testing before they can have a chance to drink excessive amounts of fluids. However, the same defenses for diluted urine as outlined above still apply.
When a defendant is sentenced to probation, the judge will often set a common condition telling the defendant to “obey all laws” while serving the term of probation. Does this mean that if the probationer doesn’t obey a law that this will automatically result in a violation? Not necessarily because not all laws constitute a violation of probation. This condition only applies to criminal laws. For example, traffic laws are not subject to probation violations, meaning that if a probationer is cited for speeding or running a red light, then he or she would not be at risk of violating probation. If a violation were to be filed by the probation officer in such a case, the violation would not hold up in court and would be dismissed.
Violations that arise out of new arrests are fairly common. Most prosecutors believe that a new arrest is an instant victory at a VOP hearing but it isn’t that simple. In order to uphold a VOP on a new arrest, the probationer’s guilt on the new charge must be proven. A VOP is easier to prove when the probationer has entered a plea of guilty in the new case because the certified copy of the sentencing in the new arrest will satisfy the burden of proof for most judges. A VOP is significantly more difficult to prove when the case of the new arrest is still pending. Typically the court will continue the VOP hearing until the disposition of the new charge is entered. A good example of this is in the case of Prater v. State, 2014 WL 2968842, in which the probationer was arrested for driving while license suspended (DWLS). At the VOP hearing, the probation officer testified that Mr. Prater had admitted to the arrest, however, he had not admitted to actually committing the offense. At the hearing, the defendant’s criminal citation for DWLS was entered into evidence and the prosecutor attempted to get Mr. Prater to admit to the offense, however, he asserted his Fifth Amendment right to remain silent due to the fact that the charge was still pending. The judge granted the VOP, however, the conviction for VOP was overturned on appeal. This was because the appellate court upheld that the state had the burden to present evidence that Mr. Prater’s license was in fact suspended and that Mr. Prater was indeed driving at the time of the arrest, as a simple citation is not proof that he was actually driving. The state failed to produce evidence to satisfy this burden, therefore the VOP conviction was overturned.
Another key aspect of defending a VOP that is often overlooked involves forcing the court to provide proper credit for time served, especially in cases where jail time is served on new charges as well as a VOP. Often, jail credit may be granted but only if the probationer was actually arrested for the out of county VOP warrant. Sadly, the jail systems have become aware that probationers can obtain time served for warrants issued in multiple locations so to get around this, they have started to issue detainers for the out of county inmate to prevent jail credit on VOP warrants. A detainer is a fancy word for a hold. Logically it would make sense that this sort of behavior is the same as arresting the inmate on the out of county VOP warrant, however, the courts do not agree and have continued to allow this type of action. As a counterpoint to this view, it should be duly noted that when credit for time served is denied solely because the local jail delays the execution of the arrest warrant, then the probationer can be entitled to credit for time served from the point that the affidavit was served, or for a reasonable time after the warrant was signed. This issue is further complicated when the probationer has multiple charges, especially in the case of an arrest on a new charge. When a probationer is arrested on a new charge, some jails will simply wait to serve the violation warrant in order to prevent the probationer from obtaining credit for time served, however, this tactic is not necessarily legal.
In the case of violation of probation in felony cases, a new VOP will add points to the probationer’s score sheet. Sometimes a defendant may not have scored prison time when initially placed on probation, only to find that he or she is facing a mandatory prison term on the VOP due to the extra points added to the score sheet. Fortunately, however, not every defendant who scores prison must actually go to prison. There are plenty of ways to avoid prison on a VOP, the most common of these being a process known as “downward departure”. There are many factors that a judge considers when departing from mandatory prison time, so if your score sheet threatens to send you to prison, contact our office today to discuss your options.
Community control is another segment of the probation process that can be extremely complicated. Community control involves a control officer making random home visits to the home of the controlee when he or she is supposed to be home. If the control officer does not physically see the controlee then he or she can be charged with violation of community control. Where this becomes tricky is when the controlee lives with others, who may not be aware that the controlee is in fact at home, and tell the control officer that the controlee is not at the residence when they are commanded to be. Often community controlees are subject to curfews when they are not allowed out of their homes after a certain time, often meaning that the individual may be violated if he or she steps outside of his or her home for a breath of air.
A common issue that is faced in the case of community control is curfew violations. When a controllee is late for his or her curfew, the control officer may file a violation. However, the tardiness must be substantial for the court to uphold that a violation has occurred. So how late is too late? Violations for breaking curfew are difficult to prove because tardiness of a few minutes is not enough for a violation to be upheld. The definition of substantial tardiness in these VOP cases differs depending on the judge hearing the case. Some judges will issue a VOP warrant when the controllee is tardy for a curfew by merely 15 or 20 minutes while others may consider any tardiness under an hour to be insubstantial in terms of a VOP warrant. This is why it is critically important that controlees that are facing this type of VOP obtain advice from an attorney. If you find yourself at risk of a curfew VOP, contact our office today for help.
If you are placed on probation and are confronted with a warrant for violating any of the terms of your probation, immediately contact our office to discuss your options.