Violation of Probation
VOP|Violation of Probation|Community Control Lawyer
If you have been placed on probation, chances are, the court has asked you to do a few things. You may have to attend educational sessions, complete community service, maintain contact with probation officers, or attend drug and alcohol counseling. If you fail to meet any of these conditions or fail to appear at a probation office, you are violating the conditions of your probation.
For details on early termination of probation requests, click here.
Start With the Basics: Understanding Which Conditions are "Legal"
Every now and then, I get a call from someone on probation for driving on a suspended license, wondering why he is being drug tested when his charge had nothing to do with drugs. Unfortunately, the law permits random drug tests of all probationers, but many other conditions are simply not legal. It may not be legal to order drug treatment when the underlying charge is petit theft. Random drug testing? Legal. Drug treatment? Not always legal.
Not every 'condition' imposed by a judge is legal, and some judge's are quite creative in their laundry lists of conditions. A condition of probation must have some rational nexus to the crime committed. For more details on how a judge imposed probation condition can be struck down, check out my article "Just Because a Judge Says So....Doesn't Make It So". Also for your reading pleasure, click on this link to view some of the "standard conditions of probation". The standard conditions of probation need not be mentioned by the judge at sentencing in order for them to be legal. And, sometimes a judge or probation officer may sneak in an extra condition after sentencing. In one case, a judge later added a curfew which, of course, the appeals court struck down this added condition later. For more info, click on my article "Illegal Conditions of Probation Can't Support a VOP".
A violation of a standard condition of probation can be difficult to prove. For example, take the condition that a probationer must "not associate with a person engaged in unlawful activities". Do we always know whether or not our friends are doing something unlawful? Did Bernie Madoff's friends know what he was up to? Yet, somehow, this is a standard condition of probation. In one Florida case, a passenger was riding along with a friend, and the friend was pulled over for a traffic citation. [See my article "Hanging with the Wrong Crowd Can Cause a VOP"] The officer discovered that the driver's license had been suspended, so he arrested the driver for driving on a suspended license. And, of course, when it rains it pours. The passenger--who was on probation--was violated for associating with a person engaged in an unlawful activity (driving on a suspended license). Yes, this is kind of ridiculous, but it shouldn't surprise anyone with some connection to the criminal justice system. So, the appeals court eventually overturned the violation of probation in this case, but still, that's not much comfort to the probationer that had to sit in jail on the vop warrant.
At sentencing, you'll often hear a judge say that a condition of probation is that the defendant "obey all laws." So, if the probationer doesn't obey a law, will that trigger a violation of probation? No, not necessarily. Not all laws constitute a violation of probation, only criminal laws. Traffic laws are a perfect example. If a probationer gets caught speeding, that's not a violation of probation. If a probationer is cited for running a red light, that would not trigger a violation of probation. For more details on this, see "A Violation of Probation for a Traffic Citation -- Is This Legal?"
Sometimes, a court imposes jail or prison as a condition of probation. Depending upon the length of the jail term imposed, such a condition of probation may be illegal. In Filppula v. State, 106 So.3d 45 (Fla. 2nd DCA 2013), a judge sentenced Filppula to two years prison as a condition of probation for possession of a prescription drug without a prescription and possession of cannabis with intent to sell. Thankfully, the condition of probation imposing a two year prison sentence was overturned by the appeals court. The reason for this is simple: Section 948.03(2) of the Florida Statutes clearly states that if the court "imposes a period of incarceration as a condition of probation, the period shall not exceed 364 days." Sounds pretty clear, right? It is, yet several courts have had problems getting this right (See Williams v. State, where the appeals court held that a 48 month prison sentence as a condition of probation violated section 948.03(2), and was thus an illegal sentence, 67 So.3d 249 (Fla. 2nd DCA 2010)).
If you have been arrested for a probation violation, you could be facing serious consequences, including jail time. The government only has to prove by a preponderance of the evidence, a lower standard than that of a normal criminal trial, that you violated your probation. It is important that you have a lawyer with experience defending clients in these cases.
Positive Drug Test, Dirty Urine, Diluted Urine
Dirty urine, or positive drug test violations make up a large percentage of all violations filed, so I've devoted an entire page to it, which you can find by clicking here. In the past, these violations were difficult to prove because, in essence, a positive drug test is a scientific test requiring scientific evidence. Under some pretty scary new case law, it is sad to say that our courts now permit the prosecution to admit scientific evidence without ever having to back it up via proper expert testimony. Laughably, the prosecution may now sneak positive drug test results into evidence through their probation officer--and probation officers are usually not expert chemists! Obviously, if the state cannot produce a witness to explain the positive drug test (other than the probation officer), this evidence should not be admitted. To get a better understanding of how ridiculous this is, please check out my article entitled "Violation Based Upon Dirty Urine, Proof Is Now Optional".
Diluted urine results may be the most difficult of all tests to get into evidence. If your violation is the result of a diluted urine lab report, this violation often will not stand up in court, as the prosecution cannot prove what caused the diluted urine result. Was it voluntarily done by the probationer, or was it the result of something "not willful"? For example, athletes that stay well hydrated may consistently test "diluted", but such a lab result is nothing more than the person's body reacting to physical activity. To prove "dilute" urine, the prosecution must take that extra step of showing that the probationer ingested a substance that intended to mask the presence of drugs. This is extremely difficult to prove, and it takes an expert's testimony to explain such. Often, even the lab results themselves will not indicate "why" the urine was diluted. If the lab result doesn't explain why the urine was diluted (for example, the presence of some masking chemical sold at your local head shop), there is no way the state can prove the violation. Without an expert on the state's witness list, this allegation cannot be proven.
Community control violations
Community control officers perform routine checks of people on probation. They often will stop by your house at a time when you are supposed to be there. You may not even know if an officer drove past your house. Even if you were home and the control officer failed to see you, they will report it as a violation. If you have mistakenly been arrested for violating the terms of your probation, contact our law firm immediately.
As you roam around this website, check out some of the pages devoted to the most common types of probation violations, like positive drug test violations and failure to pay violations. Another common violation is that founded on a new criminal arrest. Most folks just assume that, because they've been arrested on a new charge, they will be found guilty of violating probation. Not so. This is not the law in Florida. As is often cited by our courts, "a mere arrest is obviously insufficient to establish a violation." Person v. State, 83 So.3d 940 (Fla. 3rd DCA 2012). And, of course, you can find an article on this very subject appropriately titled "A New Arrest, By Itself, Is Not Enough to Violate Probation".
Curfew, Out of Area Violations
Of course, there are plenty of cases where people placed on probation do violate the terms of their probation but have a justification for doing so. Thus, the VOP should be dismissed. For example, on community control, if you are scheduled to arrive home at 6:00, but arrive at 6:20, the community control officer may file a violation. The question is, is being 20 minutes late on a curfew a "substantial violation?" If the violation is not substantial, the violation will be dismissed. For more info on violations based upon missed appointments, check out my article "Missing a Probation Visit Not Enough to Support a VOP".
How late is "too late" for a curfew violation? Yes, curfew issues are not just for community control clients, some sex offender probationers have curfews as well. Curfew violations are often difficult to prove, not because probation will have a hard time showing that the person arrived late beyond curfew--but because the violation must be "substantial". Many courts have found that a violation based simply upon a few minutes here or there is not "substantial" enough to warrant a violation. For a deeper analysis of a violation that was overturned because the court found that 30 minutes beyond curfew was not "substantial", read my article "VOP Judge Abuses Discretion".
Sometimes, the problem involves the nature of the proof the probation officer intends to offer. A common scenario involves a probation officer stopping by the probationer's home after curfew. If the probationer isn't there, a VOP is filed. So, how does the probation officer really know the probationer wasn't at home? Chances are, the probation officer simply knocked on the front door, asked whoever answered if the person was home--and when the officer is told that the defendant is not home--the violation process begins. The problem is, this is not really proof. This is hearsay. If the probationer claims he was sleeping when the officer arrived at the home and the person answering the door wasn't aware of this fact, the judge would be forced to dismiss the VOP based upon the fact that the probation officer's evidence is only what he was told. It was hearsay, and a violation cannot be based solely upon hearsay. Now, if the probation officer actually searched the home, that would be a different story.
To see how this works in real life, let's look at the case of White v. State, 170 So. 3d 144 (Fla. 1st DCA 2015). White was arrested for violating his probation after his officer went to his home to visit. As you know, plenty of violations begin with the dreaded home visit. Anyway, the probation officer was told by a family member that he went up to the store (a curfew violation). Another family member thought he may have been in the shower. Either way, the only evidence the probation officer presented was what she was told. It was all hearsay. Somehow, the judge ignored the law and convicted White of violating his probation, but the appellate court overturned the violation because the violation was based entirely upon hearsay. The court cited another court's opinion that "a probation officer's testimony was insufficient to support probation revocation where the probation officer did not search the probationer's home and instead relied on a statement by the probationer's mother that he was not home" id, citing C.B.H. v. State, 117 So. 3d 450 (Fla. 2d DCA 2013).
New Law Violations (new arrest)
Violations arising out of new arrests are fairly common. Now, most prosecutors think that a new law violation is instantaneous victory at a VOP hearing, but it's not that simple. A new law violation is easy to prove if the probationer has entered a plea on the new charge, because a certified copy of the sentencing document on the new arrest will satisfy most judges as to the violation.
The VOP is more difficult to prove when the new case is still pending. Typically, a VOP case will get continued to determine the outcome of the new charge. To some folks surprise, proving a new law violation can be a difficult thing to do. Here's a prime example. In Prater v. State, Prater was found guilty of violating his probation based upon a new arrest for driving while license suspended (DWLS). 2014 WL 2968842 (5th DCA 2014) Sure, this can be a simple charge to prove, so, do you think the prosecutors were up to the task? At Prater's violation hearing, the probation officer testified that Prater admitted to a new arrest (but never admitted to committing the offense). At the hearing, the probation officer admitted into evidence a copy of Prater's criminal citation for DWLS. Also, the prosecutor tried to get Prater to confess to driving, but Prater asserted his Fifth Amendment right to remain silent because his DWLS charge was still pending.
At the end of the hearing, the judge found Prater guilty of violating his probation, but the appellate court overturned the conviction. Why? In order to prove DWLS, the prosecutor should have presented evidence that Prater's license was suspended. They did not provide such evidence. And, the State should have presented evidence that Prater was driving--but once again--there was no evidence containing proof of driving (a citation isn't proof). As you can see from this case, probation officers cannot simply show up at a VOP hearing with proof of an arrest, and an arrest report. That's not enough. For more information on new arrest violations, please click on my article discussing this, called "A New Arrest Does Not Prove a VOP".
Credit Time Served on VOP Cases
Another important, but often overlooked aspect of defending a Violation of Probation involves forcing the court to grant the proper credit for time served, especially in cases where jail time is spent on new charges and a VOP. Often times, jail credit may be granted, but only if the probationer was actually arrested for the out of county vop warrant. Unfortunately, the jail systems have become aware of the fact that probationers can obtain credit time served from multiple locations when they served the vop warrant on the inmate--so to get around this, the jail system now issues "detainers" for the out of county inmate. A detainer is simply a fancy word for "hold". Logic would dictate that this sort of behavior has pretty much the same effect as arresting an inmate on the out of county vop warrant--but the courts have not agreed. To counter this view, I would note that when credit time served is denied merely because the local jail delays the execution of the arrest warrant, a probationer can then be entitled to credit time served from the moment the affidavit was served (or, from a reasonable time after warrant was signed). For more information on credit time served issues on VOP charges, check out my article "Orlando Court Forced to Give VOP Credit Time Served". The problem of time served is further complicated by multiple charges (especially a new charge arrest). When arrested on new charges, some jails will simply wait to serve the violation warrant--but that's not necessarily legal. To see the layout of a multiple new charge & vop time served situation, click on my article "Some Judges Don't Give Enough Credit".
Of course, a violation of probation adds points to a defendant's score sheet (on felony cases only). Sometimes, a citizen may not have scored prison when placed on probation, only to be facing mandatory prison time on a violation due to the additional points added. Fortunately, not everyone who scores prison must go to prison. There are plenty of ways to avoid prison, and one of the most common is known as a "downward departure". There are many factors a judge considers when departing from mandatory prison time. For a detailed analysis of a VOP downward departure, check out my article "Good Judges Make the World a Better Place".
Failure to Complete Treatment Violations
A common reason for violating probation is the failure to complete recommended treatment. Treatment comes in many forms--drug treatment, sex offender treatment, domestic violence treatment, anger management, and the list goes on and on. But what happens when your sex offender treatment provider requires that you admit to being a sex offender--and you're not one--what do you do? If you say "I've never done that", you're not fully participating in treatment and you'll be terminated from treatment and thrown in jail on a violation. It's a tough decision, and I address this issue in my article "Lie, or You're Going to Violate Probation". Check it out.
The failure to pay restitution seems to be a recurring theme on VOP's, and it can be a bit more complicated than you would think. So, I've written a whole separate page detailing the analysis of violations on restitution issues. You may access it by clicking here.
Sex Offender Probation Violations
Well, a whole book could be written on how poorly the Department of Corrections treats sex offenders on probation. Sex offenders have many rules that come standard, and all of this can be found in Florida Statute 948.30. Suffice it to say that, the more conditions there are, the more chances an offender has to violate. Sex offenders on probation have curfews from 10 p.m. to 6 a.m. They cannot live within a 1,000 feet of a school, park, playground (etc.). The condition that most probation officers do not understand is the prohibition against possessing pornography that relates to the offender's criminal conduct.
The way these violations go down is as follows. The sex offender shows up to the probation office, and the probation officer confiscates the offender's phone and searches the phone for pornography. If pornography is found, probation will usually issue a violation. Naturally, such a violation is illegal, because Florida law permits sex offenders on probation to view pornography. The only pornography that is illegal for sex offenders to view is porn that is related to the "deviant behavior". [To read about some details on this issue, check out my article "Sex Offenders, Probation, and Pornography"]
So, how can the state prove that the porn is "related to the deviant behavior?" Well, it's not easy. There are two sides to this proof equation.
First, the prosecutor must prove up the initial deviant behavior. In Brown v. State, the appellate court overturned Brown's violation of probation conviction because the state failed to present evidence as to the nature of the underlying offense or the defendant's deviant behavior pattern. 117 So. 3d 484 (Fla. 2d DCA 2013). In other words, the prosecutors testimony as to what the probation is on probation for does not qualify as "evidence".
The second part of the equation is a bit more involved. The prosecutor must present proof that the pornography is "relevant to the charges for which he was placed on probation." Sellers v. State, 16 So. 3d 225, 227 (Fla. 5th DCA 2009). This requires the judge to place on the record an analysis that describes "the nature of the material, its content, and how it was related or relevant to Appellant's deviant behavior pattern." Smith v. State, 49 So. 3d 833, 834 (Fla. 1st DCA 2010). A statement like "I find this material relevant" will not do.
The court in Sellers gives us some guidance on this issue, noting that "Sellers contends that because he was convicted of possession of child pornography, only materials that actually depict children in a sexually explicit manner will meet the Kasischke test. We disagree. Material that does not actually depict a child could still be relevant to deviant proclivities involving children if the material was sexually explicit and contained a puerile or adolescent theme." Sellers, footnote 2.
In other words, if you're on probation for molesting your step child, you can't watch pornography depicting a father & step-daughter situation. Yes, this sort of pornography exists, typically involving 50 year old men pretending to be the father of a 25 year old woman. Again, perfectly legal, but not for a sex offender. That being said, even watching a Woody Allen movie would not be a violation of the father step-daughter situation so long as there are no scenes containing Woody and his wife Soon-Yi (for the record, I like Woody Allen, but with these crazy probation officers, you never can be too careful).
If you have been arrested for violating the terms of your probation, contact the law offices of John P. Guidry II, for a free initial consultation. We can be reached by telephone, fax, or by filling out the client intake form on this Web site.E-mail: email@example.com
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