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PROBATION REVOCATION

If someone you care about was placed on felony or gross misdemeanor probation in Las Vegas, and is now in Clark County Detention Center awaiting a revocation hearing for alleged violations of the terms of his or her probation, you should consider hiring a criminal defense attorney. A probation revocation can and often does leads to incarceration or other harsh consequences, so read below to learn about what happens when your loved one is accused of violating probation, and how a defense lawyer may be able to help.

WHAT IS A PROBATION VIOLATION?

Pursuant to NRS 176A.100, if you are convicted of a gross misdemeanor or felony charge after pleading guilty or being found guilty after a trial, the court may suspend a prison or jail sentence and place you on probation. Probation is a period of supervision by the Nevada Department of Public Safety's Parole and Probation division. The Department of Parole and Probation (or "P&P") is located at 215 East Bonanza Road in Downtown Las Vegas. P&P supervises the defendant (called a "probationer") for a specified or indeterminate period of time, as set by the court at sentencing, and is responsible for enforcing the various conditions imposed by the court. These conditions typically include the following:

  • Obtain and maintain legal employment and provide proof to P&P;
  • Perform community service during any period of unemployment;
  • Obtain a high school degree or complete adult education;
  • Abide by a curfew as set by P&P;
  • Have no contact with co-defendants, if any;
  • Do not associate with known felons or other probationers;
  • Do not use or possess alcohol or controlled substances;
  • Submit to random drug and/or alcohol testing;
  • Complete drug counseling, parenting classes, or other programs as directed by P&P;
  • Pay for all probation costs, restitution, fines, or any other costs ordered by the court;
  • "Stay out of trouble" and don't get arrested for any new criminal offense;
  • Stay in contact with your probation officer;
  • Don't leave the state without prior authorization from P&P.

This is not an exhaustive list of probation conditions imposed by the courts. This is just a list of some of the more common conditions. Keep in mind, failure to comply with any of these conditions can result in the probationer being "violated" by his or her probation officer, and subsequently "revoked" and sent to jail or prison by the judge.

WHAT HAPPENS AFTER AN ALLEGED VIOLATION

If the probation officer (or "PO") believes that conditions of probation have been violated, then the PO has the authority under NRS 176A.500(3) to arrest the probationer. An arrest by a PO places a 45 day hold on the probationer. This is because pursuant to NRS 176A.100(5), P&P has 45 days after an alleged violation to prepare a "violation report" which details the alleged probation violations. This violation report will be distributed to the judge, the prosecutor, and your defense attorney. Several weeks later, a probation revocation hearing will be held in front of the sentencing judge. Read below about what happens on the day of the violation.

THE PROBATIONER'S OPTIONS AT A REVOCATION HEARING

At a revocation hearing, the probationer has three basic options: go forward with the revocation hearing, waive the hearing and stipulate to the truth of the allegations and argue for reinstatement, or negotiate some outcome with the prosecutor and PO. Read below about what happens if the hearing goes forward, why a probationer might choose to stipulate to the allegations in the violation report, and what types of negotiated outcomes are available.

If the probation revocation hearing goes forward, the prosecutor will present evidence, usually consisting of the PO's testimony. The PO and the prosecutor will attempt to establish that the probation violations occurred as described in the violation report. The defense attorney has an opportunity to cross examine the PO and any other witnesses the prosecutor calls, and also has an opportunity to call his own witnesses, which may include the probationer. When each side has had an opportunity to present evidence and argue the facts, the judge will determine whether the allegations in the violation report are true. If the judge determines that the allegations are not true, then the probationer is reinstated and released from custody. If the judge finds that the allegations are true, then the judge has several options. Read more about those options in the next section.

As stated above, in some circumstances it may make sense to waive the revocation hearing and stipulate to the allegations in the violation report. Why would someone want to do this? In many instances, the allegations may be essentially true, but are written from a limited or biased perspective. Stipulating to the violation report allows the probationer the opportunity to take some measure of responsibility for the allegations in the report and also offer the complete story to the judge. It also avoids drawing out the process and prevents the PO from testifying extensively about the alleged probation violations. Additionally, the probationer will have an opportunity to present any evidence he likes related to the postivie things he has done while on probation, like obtaining employment or doing community service. Keep in mind, stipulating to the report doesn't mean the probationer is stipulating to be revoked and sent to jail or prison. On the contrary, the vast majority of the time, the probationer is asking for reinstatement. In many instances, the probationer will be reinstated, although that depends heavily upon the seriousness of the violations and the tendencies of the judge presiding over the case.

Finally, the defense attorney, the PO, and the prosecutor can negotiate a particular resolution and recommend that the judge order that outcome. Keep in mind, this requires the probationer to stipulate to the violation report as described above, and technically, the judge doesn't have to follow the parties' recommendation (although the vast majority of the time, the judge follows the joint recommendation). Keep in mind, however, that the prosecutor and PO are not always willing to negotiate and come to a mutually agreeable resolution. In many instances, the PO is not willing to accept anything other than revocation, and the probationer only has the two preceding options.

Whichever of the above paths the probationer takes, there are several potential outcomes, ranging from straight revocation and imposition of the suspended sentence to full reinstatement with no added conditions. The final outcome is always determined by the judge. Read about the possible outcomes below.

POSSIBLE OUTCOMES OF A REVOCATION HEARING

Whether the hearing goes forward, the probationer stipulates and argues for reinstatement, or the case is negotiated, the judge ultimately decides the outcome. There are several possible outcomes. Here they are, listed from least favorable to most favorable.

  • Revocation and imposition of the full suspended sentence.
  • Revocation and imposition of a lesser, amended sentence.
  • Reinstatement with added conditions. Added conditions might include placing the probationer on "intensive supervision" (a more strict level of supervision), completion of a drug treatment program (inpatient or outpatient), or spending some time in jail.
  • Reinstatement with no added conditions.
  • Discharge from probation with a "dishonorable discharge." While it doesn't look good for any future criminal cases to have a "dishonorable discharge" on your record, it still means you are off probation. Often, however, the judge will only grant a dishonorable discharge with the condition that the probationer serve a certain period of incarceration in Clark County Detention Center.

HOW A CRIMINAL DEFENSE ATTORNEY CAN HELP

If someone you care about is facing probation revocation, you may want to seek the help of a criminal defense attorney. If I represented a criminal defendant at sentencing in District Court, I will represent him or her at the revocation hearing. I also represent individuals at revocation hearings who had other attorneys at sentencing but are currently without a lawyer. Call me to discuss your loved one's upcoming revocation hearing and I'll give you my opinion on the likelihood of revocation versus reinstatement.

By Michael Pandullo

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