You have met with your attorney on your drug case. It is your fifth time in court on this case. Your lawyer tells you that the next date is for trial. She explains that she may be able to talk the court and the prosecutor into giving you probation instead of jail.
“What?”, you say. “No jail? Count me in!”
You figure you are home free.
You are wrong.
Attorney Sam’s Take On The Risks Of Probation
Don’t get me wrong…being on probation is better than being in prison. However, there are some things you have to keep in mind because this may not be the gift from Heaven that you assume it is.
1. Do not mistake this for a dismissal. Some people figure that if they did not have to go to trial or jail then the case simply vanished. In other words, it got dismissed. In this scenario, it did not get dismissed. You pleaded guilty. You are convicted just as if you went to trial and a jury found you guilty. You were simply placed under the supervision of the Department of Probation. You do have a criminal record.
2. Do not believe that being placed on probation means that they can never incarcerate you on the underlying case. All you have to do is to be found in “violation” of your probation conditions to be thrown in jail. What happens is there is a Probation Surrender Hearing . The court needs only probable cause that you violated probation to throw you into custody.
3. You do not have the same Constitutional safeguards in a probation surrender that you do in a regular criminal case. In a probation surrender, there is an initial court date and then the final surrender hearing. It will not be pending for the approximate year it would have taken to go to trial. The Commonwealth also does not have to work so hard for a finding against you. There is no longer a necessity to prove you guilty beyond a reasonable doubt. The Commonwealth may not even have to call witnesses to testify against you. This means that if the Commonwealth calls no witnesses, your attorney has no witnesses to cross-examine (except for the probation officer). Hearsay is admissible at these hearings.
4. Probation conditions are precisely what they say they are. For example, it is a violation of probation to be accused of a new crime. This does mean that getting the accusation made against you is basically enough. In most cases, you will be found in violation long before any new case goes to trial or is otherwise resolved. That’s right, you can be thrown back in prison on the violation of being arrested even while you are presumed innocent on that new allegation.
5. When your probation officer tells you to do something, he is not asking. No, he is telling. When the probation officer wants to have you do something, even something which you feel is none of his business, you are mandated to do it. In some cases, you can challenge it by bringing it before a judge. However, if the demand is not outright unreasonable, the court is probably going to back the probation officer. Then your choice is to do it or go to prison…and you have angered your probation officer.
6. You have limited rights while you are on probation. The probation officer is the arm of the court. She is law enforcement. While the police, under ordinary circumstances, cannot control who you associate with or where you go, your probation officer can. In fact, the probation officer can show up at your doorstep demanding to come in at any time. No warrant. No probable cause. You are on probation. That is enough.
The bottom line here is not to tell you to refuse going on probation. It is that you must take that probation contract that you sign when going on probation very seriously.
Because the court certainly does.