Possession of Cocaine

Question by Darrell: Can they violate probation before a trail?
Can they have a violation of probation hearing before a trial on a new charge?
Some backround info
If a person is on formal probation that was banked and paid and;
1). Had gone over two years of the (3 yr) probation period without any incident
2). Was stopped simply because the acquaintance next to him was a known criminal
3). Went through two hours of being made to stand and be searched in front the lights of the police car for hours like someone who had just robbed the store while 4 or 5 police officers all took turns searching the people and a vehicle which yielded nothing illegal, which was then followed by a house search.
4). The house search yielded 2 prescription pills without a prescription
5). The defendant then is hauled away to jail for 5 days not being told what the charges were,
6). Then released because he wasn’t arraigned in time,
7). Then 7 months go by and the charges were re-filed followed by a surprise re-arrest followed by another 5 days of jail until finally the charges were here during an arraignment

The charges can be beat by a jury trial if only given a chance for a jury to hear…..

But the problem being faced with is this

A decision is being forced to be made to either;
plead guilty and accept prop 36 and then starting a new 3 years of formal probation, or

Take it to trial but go to a probation violation hearing without a jury before the trial period in which a judge can violate the probation and sentence the defendant to 2 years even before his trial on the new charges are heard.
What should the person do?

Best answer:

Answer by Casey
Regularly happens.
They are picked up and kept in jail until the hearing where both charges – breach of probation, will be dealt with.

The person needs a lawyer for that very purpose of sorting out what to do. See a lawyer or see the Public Defender.

Answer by frusthubby
You don’t get a trial for a probation violation. You only get a hearing from a judge. Also, the standard to convict on a violation is far lower than for a new offense. For a probation violation the standard is “more likely than not” that you commited the violation whereas a new crime is judged by “beyond a reasonable doubt”. Quite frankly, this guy is dead in the water regarding a probation violation. I can guarantee he has a term that says he can be in the presence of a known criminal and I am sure he has a drug term. What is going to happen is the probation officer is going to file a violation and they submit a one page report. He will simply say that the guy was given his terms and the PO will list the violations. The judge will look at it and say, “yep, he is in violations” and revoke probation. No jury trial, no witnesses, and it wont matter how close he is to finishing probation…I have known POs that violate the probationer on the day before probation runs out.
My best advice…take a plea that is offered by the DA. If the defendant is dead to right and knows he is in violation, then tries to fight the case on some technicality, the judge is going to throw the book at him. If he is being offered Prob 36, take it…it keeps him on probation with the agreement that he gets drug treatment. Plus Prob 36 is a pretty good deal consdering he doesn’t continue to screw up and exhausts his three chances…then its to the pen 🙂
In regards to there being two pending matters…the probation violation and the new case, they will be dealt with seperately and the DA should file in a way that does not interfere with double jeopardy. For example…the PO will file on him being around another criminal since that is a probation violation, but not necessarily against the law. The DA will file on the possession of the perscription drugs as a new charge, but it wont be a violations of probation even though it can be charged as such…it carries more teeth as a new charge (but it can not be used as both…it’s double dipping). What he may be able to do it plea bargain that he will admit to the probation violation in exchange of the new case being dropped…it happens all of the time.

Portsmouth Man Arrested on Drug Charges, Probation Violation
PORTSMOUTH, Ohio (WSAZ) — A Portsmouth man was arrested on drug charges and for violating his probation, according to a news release from the Scioto County Sheriff's Office. Charles Peter George, 40, was charged with possession of drugs and …
Read more on WSAZ-TV

Police Blotter – Dec. 5 edition
30 and charged with possession of opium or a derivative, resisting an officer, property damage, possession of marijuana, drug possession, possession of drug equipment, possession of a weapon, a probation violation, fleeing/eluding police and a moving …
Read more on Seminole Chronicle

Probation, parole sweep in Grand Rapids leads to seven arrests
Officers checked 40 residences and arrested people for violations such as possession of a firearm, drug possession and absconding probation. Several other violations for people who are not yet in custody will be processed, police said. The sweep was …
Read more on The Grand Rapids Press – MLive.com

One Response to “Can They Violate Probation Before a Trail?”