Probation Violation

We represent people who are accused of violating their probation. After a criminal conviction, a defendant may have some (or all) of his or her sentence suspended and be placed on probation in lieu of incarceration. Many criminal cases in Massachusetts are resolved by placing an individual on probation. Defendants who are sentenced to terms of incarceration may also be placed on probation upon their release. Probation generally comes with a range of conditions that vary depending upon the circumstances of the particular case. Conditions may include drug testing, refraining from the use of alcohol, community service, and payment of certain fines or fees. The Criminal Justice Reform Act, passed in 2018, includes a carveout to ensure that people on probation are not found in violation of their probation for having or using medications legally prescribed by a health professional, or for legally having or using medical marijuana. In general, probation also comes with some degree of supervision, and a probation officer will be assigned to monitor a defendant during his or her time on probation.

When a defendant is alleged to have violated a condition of probation, their probation officer may file a “surrender notice” with the court compelling their appearance. In certain situations, a probation officer has discretion over whether to file the surrender notice or not, though the issuance of a notice is mandatory in the event of new criminal charges.

It is important to be aware of the rights that a probationer has at a probation surrender hearing. Because the probationer has a liberty interest in the proceeding, certain requirements of due process apply even though the violation proceeding is not a new criminal prosecution. For instance, probationers are entitled to notice of the alleged violations and a two-stage hearing at which a neutral magistrate must decide whether there has been a violation, and, if so, whether revocation of probation is warranted. At that hearing, the probationer has the right to be heard, present evidence and witnesses, and to cross-examine and confront the witnesses against him. However other rules that apply in criminal proceedings, like the prohibition on hearsay evidence, do not apply in probation revocation hearings. The state’s highest court has held that “reliable” hearsay can be used in these proceedings.

Even if a violation is proven, the court may decide to keep the individual on probation with no additional adverse consequences. The court may also opt to extend the term of probation, modify the conditions of probation, or impose an incarcerative sentence.

Violations of probation should be taken very seriously, because the court ultimately has the option to impose the full sentence that was previously suspended in favor of probation. Violations of probation may also result in defendants whose cases were previously “continued without a finding” (“CWOF”) having the CWOF revoked and the guilty finding imposed – putting the criminal conviction on the defendant’s record for life.

If you are on probation and are facing an alleged violation, please contact our attorneys at (617) 742-6020.

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