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.

Justia Lawyer Rating
Super Lawyers
Martindale-Hubbell - AV Preeminent - Peer Rated For Highest Level Of Professional Excellence 2020
Recognized by Best Lawyers
Best Lawyers - Best Law Firms
Client Reviews
I hired Mr. Duncan to deal with a very sensitive issue that my daughter had. Since the first contact, I had a very good impression of him. He transmitted confidence and appeared to know exactly what to do. I called and emailed him many times, he was polite and comprehensible with the anxiety of a father and appeared to know every step to solve the case. I strongly recommend Mr. Duncan. Flavio Lajoia
If you are reading this review, it means either you or a family member is in trouble and needs immediate legal counsel. Please know your search can end right now because Zalkind, Duncan & Bernstein is the law firm to hire. They are honest, responsive, compassionate and have the experience and expertise to bring... Client
I contacted Zalkind Duncan & Bernstein to assist with a Title IX case. From our initial conversation, Naomi Shatz had a strong understanding of Title IX policies and conducted each step of the process with professionalism, honesty and a responsiveness that did not disappoint. Ms. Shatz displayed confidence and just as important, compassion when needed. Client
I worked with Emma Quinn-Judge and Monica Shah. And from my first contact on the phone, on to my first meeting in their office and during the trial, I found them and the firm's entire team to be a group of consummate legal professionals who are very knowledgeable, patient, dedicated, fair, honest and caring... Chantal C.
I am forever grateful to all the staff at this firm, but in particular, Ms. Shah, Mr. Zalkind and Mr. Silverglate. They represented my son who was being sought for extradition to Scotland. The case took years to fight, covering new legal ground, setting precedence. But each one of these legal eagles went above and beyond the duty of office... Suzanne D.