What Happens When There’s a Failure to Communicate

Cool Hand Luke is probably one of my favorite movies. Let’s talk generally about what happens when there’s a failure to communicate between a you and “the man” (your judge or probation officer.)

In California, a probation violation may happen when someone fails to follow the conditions set by the court while on probation. There are all sorts of conditions and under the Lent test (I believe) they have to be reasonably related to the crime - or there needs to be a nexus between the condition and the crime and preventing future criminality. Boring. The consequences of a PV can vary depending on the type of probation (formal or informal), the seriousness of the violation, and the individual’s prior performance on probation.

Here’s a breakdown of how probation violations work:

Violating the Terms of Your Probation

Some probation violations have to do with breaking probation rules without committing a new crime. Below are a few examples. Depending on the circumstances and your prior performance on probation, if one of these violations is found true in court, you may face very serious consequences.

• Missing a court date or check-in with a probation officer

• Failing a drug test

• Not completing required programs or community service

• Violating curfew or travel restrictions

• Getting arrested or convicted of a new offense while on probation

What can happen when your probation officer or the court believes that you’ve violated probation terms? A few things:

If your probation officer or the court believes you violated probation:

1. Probation Violation Report: Filed by the probation officer and sent to the judge.

2. Court Hearing: Known as a probation revocation hearing or PV hearing.

   • You do not have the same rights as in a regular trial. Most notably the right to trial by jury. Other rights include a statutory right to a speedy trial in a prescribed period of time - I believe you are due the hearing “within a reasonable amount of time.” Would need to look it up to see if that has changed.

   • The judge decides guilt based on a "preponderance of the evidence" (lower standard than “beyond a reasonable doubt”).

3. Possible Outcomes:

   • Reinstatement of probation with the same or modified terms

   • Extension of the probation term

   • Additional penalties (e.g., more community service, counseling)

   • Revocation of probation and imposition of jail or prison time.

Possible Defenses

Here are some examples of defenses at PV hearings: Lack of willful violation (e.g., missed appointment due to medical emergency); completed conditions late but before hearing; no new violation occurred; mistaken identity or incorrect reporting. Never seen this last one but having an alibi usually helps, right? I read an CA opinion a while back about a fellow who was sent to prison for a probation violation - I believe it was for a double digit number of years, too. The PV alleged? He missed a court date and immediately placed himself back on calendar the next day - and I believe he presented evidence excusing his absence. Want to say it was documented that he contacted the clerk and notified them. He might have even MADE it to the courthouse but arrived like, 15 minutes late. I seriously think it was that. Something that seemed totally excusable. I don’t remember the facts exactly as they were written! In any event I believe the CA affirmed the judgment which sent the probationer to the joint for many years. Basically said he violated the terms and the judge has a lot of discretion when it comes to these things. That’s what I’m talking about when I say that the man is one rough old boy.