If you’re facing a probation violation in or near Middlesex County, you need to know what you’ll undergo at the probation court hearings, and how the judge decides whether or not you violated the conditions of your probation orders.
Article Overview: A probation violation is handled in a 3 part process in Massachusetts. If the probationer was arrested, the process could be shortened to two parts. This process and the chances of getting probation reinstated are discussed, along with what happens when your probation is revoked.
Massachusetts probation laws require a Notice of Surrender be served upon a probationer whenever an alleged violation has occurred. After receiving this Notice, the first thing you’ll want to know is what happens at a probation revocation hearing.
Probation Hearing and Sentencing
Probation is a sentence sanction whereby the offender is placed into the community under strict supervision of the probation department, instead of undergoing jail or prison sentences.
This essentially takes you out of the criminal justice system for the probation term, during which time your probation officer oversees rehabilitation efforts and enforces the court-ordered conditions of probation.
If an action causes your probation officer to believe you’ve violated those conditions, he or she will write up a Notice of Surrender and submit it to the court. This Notice hands you back (surrenders) to the criminal court system for a judicial determination.
The Initial Violation Hearing
The Notice of Surrender identifies your probation case information and details what violation/s you’re accused of. It also gives the date and time of your Initial Hearing whereupon you must show. The initial violation hearing is usually scheduled within 14 days of the issue date on the Notice of Surrender.
You’ll be allowed to request a preliminary hearing at this initial hearing. NOTE: If your attorney does not request a preliminary hearing to determine probable cause, the judge can remand you into custody until your final hearing without due process!
Matters processed at an Initial Probation Violation Hearing include: verifying receipt of the Notice of Surrender; Probable Cause determination OR Preliminary Hearing request; Discretionary detention; Detention until final hearing OR release on bail or personal promise; and setting the date for the Final Hearing.
If your probation officer issued a probation revocation warrant, or if other law enforcement had you arrested, service of the Notice of Surrender can be given at your first appearance after arrest.
If you are charged or indicted on a new offense, it constitutes probable cause of a probation violation and you won’t get a preliminary hearing.
- G.L. Chap.276A §6 -What happens when pretrial probation is violated.
- Reasons you might be found in violation of probation orders.
- Failure To Appear warrants in Massachusetts.
If you do not already have an experienced defense lawyer, you should get one as soon as possible.
Violation Probable Cause Hearing
Unless you were arrested for a new crime, you should proceed with a probable cause hearing through the probation court. These are evidentiary hearings and you have the right to be represented by an attorney.
It’s crucial to know that who you get to fight for you at these hearings can make or break your chances for a dismissal. Your probation officer will be presenting evidence to the judge, and can even bring in a prosecutor from the D.A.’s office to help make their case for probable cause of a violation.
After the judge hears from probation, you and your defense attorney will be heard. This is your chance to argue against finding reasons to support the likelihood that your actions were in violation.
If probable cause is found, a Final Violation Hearing will be scheduled, typically within 30 days.
What Happens When Your Probation is Revoked?
At the Final Violation Hearing, the probation officer has the burden of proving you violated your orders. Again, this is an evidentiary proceeding and your probation defense lawyer will prepare arguments and evidence in your favor, and can cross-examine any witnesses that testified against you.
If you do not prevail at the Final Hearing, your defense lawyer can file an immediate appeal to stay the Revocation Sentence.
At this stage, the probation judge can: restore the original terms of your probation; terminate the probation and discharge you; extend and/or modify the terms of probation; or revoke the probation and execute the suspended sentence immediately.
If your probation is revoked and you are to be remanded, your lawyer can move to request time to handle personal affairs before your incarceration begins.
Top Reasons to Hire a Probation Defense Attorney
- You are sure that you are wrongfully accused of having violated;
- To avoid incarceration;
- To protect your rights during the probation revocation hearing process;
- To file an appeal on your behalf should revocation be ordered.
This is a critical time to hire a criminal defense lawyer who knows the probation court system. Your freedom is at risk. You are encouraged to hire an experienced lawyer early on, as some time is needed to prepare for the hearings.
If there has been a violation of a random urine sample, for example, your defense attorney can investigate whether a doctor prescribed a drug that could cause a “Positive” reading. If this is the case, you’re still technically in violation; but it can be properly presented to the judge as good cause.
You should work with a Massachusetts probation defense attorney who knows probation rules and understands how to advocate for reinstating your probation in the hearings.
If you had a court-appointed lawyer, he or she ceased representing you at the time you were pleaded out. Call us instead at (978) 452-1116 so we can explore your options to defend against probation revocation.
Gregory Oberhauser has successfully filed motions to modify conditions of probation for his clients in Massachusetts. He’s also filed numerous appeals from unfavorable decisions in Superior and District Courts around the Commonwealth. Get him on your side today.