Georgia’s new law for probation, SB 105, went into effect in May 2021. Many heralded the law as a major step forward that almost completely redid community supervision in Georgia. Others claim S.B. 105 was a “throw the poor doggie a bone” measure calculated to silence voices on the left clamoring for reform.
As outlined below, the new law for probation in Georgia changed some things and didn’t change other things. More importantly for our purposes, the new law didn’t change the way a Marietta criminal defense lawyer approaches probation revocations and motion for early probation discharge, the two most common post-conviction matters in Georgia. Quite simply, attorneys plan their work and work their plans. This simple and straightforward approach usually produces results that exceed expectations.
What the New Law for Probation Changes
When lawmakers began debating S.B. 105, Georgia’s staggeringly high probation population was heavy on their minds. Georgia’s probation population, the highest in the country, is three times the national average. The high population strains the state’s scarce resources.
A one-two punch of reducing probation lengths and streamlining the early discharge process seemed like the natural answer to this problem.
Under S.B. 105, judges must include a Behavioral Incentive Date (BID), which, in most cases, must be less than three years from the judgment date, in all sentences of probation. Within sixty days of the BID, the judge may terminate probation if:
- Restitution Paid: The judge must end probation if the probationer has paid all restitution. Note that there’s a difference between restitution and fines, court costs, administrative costs, past-due supervision fees, or any other money owed.
- Good Record: BID termination is available if the defendant’s probation hasn’t been revoked in the past twenty-four months. Note that there’s a difference between the filing of a motion to revoke and an official revocation. Frequently, a Marietta criminal defense lawyer intervenes after the filing of a motion and settles the matter out of court without any finding of revocation.
- No Legal Trouble: BID termination is unavailable if the defendant has been arrested for (as opposed to charged with or convicted of) any criminal infraction above a “non-serious” traffic ticket, a category that usually excludes reckless driving, ABC (assault by contact), and other enhanced traffic tickets.
If the defendant meets the minimum qualifications, “the court shall take whatever action it determines would be for the best interest of justice and the welfare of society.” That action could be terminating probation, extending probation, or anything in between.
BID termination is usually unavailable in Cobb County if the probationer has a prior felony arrest record.
S.B. 105 doesn’t cap the length of probation, but it does limit supervised probation to two years, unless:
- The court, after notice and hearing, determines there’s good cause, such as a poor probation record or a threat to the community, for continued supervision,
- Restitution is unpaid,
- The probationer was a member of a street gang, or
- The probationer committed a sex offense.
Additionally, a Marietta criminal defense lawyer can file a motion to terminate or modify probation at any time. The judge must grant that motion if “the court determines that probation is no longer necessary or appropriate for the ends of justice, the protection of society, and the rehabilitation of the defendant.” Additionally, crime victims, if any, must agree to the petition, or at least agree not to fight it.
What the New Law for Probation Doesn’t Change
S.B. 105 does not touch the underlying conditions of probation, possible revocation scenarios, or the need for a Marietta criminal defense lawyer in these areas.
The general conditions of probation are far too numerous to list in this blog. So, we’ll touch on a few highlights (or lowlights, depending on your perspective).
- New Offense: This rule is similar to the BID eligibility rule. Any arrest for any offense against the state of Georgia is a substantive probation violation. Municipalities and counties often have concurrent jurisdiction over enhanced traffic tickets. So, the filing entity determines whether the defendant violated probation.
- Substance Abuse: Nationwide, about 80 percent of criminal offenders abuse alcohol and/or drugs. Therefore, nearly all probation rules include testing and evaluation requirements. These requirements are especially acute in DUI, drug possession, and other such cases.
- DNA Sample: Probationers have investigative targets on their backs. When a crime occurs in the area, investigators immediately assume probationers were involved in it or knew something about it. DNA collection, usually at probation intake, is part of this process. What happens to these DNA samples when probation ends? Your guess is as good as ours.
- Reporting: Monthly, bimonthly, or even weekly reporting is a standard condition in all probation orders. These reporting dates aren’t dental appointments which are scheduled and rescheduled at the convenience of the defendant. Most probationers must also provide documents, such as pay stubs and report cards, at these meetings.
Honorable mention (or dishonorable mention) includes geographic restrictions, financial obligations, and regular employment. Sex and gang offenders must often avoid certain places, all probationers must pay fines, court costs, supervision fees, and other items, and all probationers must work and support their dependents.
In Georgia, a new offense usually means automatic probation revocation. Do not pass Go and do not collect $200.
Other infractions are second-chance infractions. Missing a meeting is a good example. If a probationer fails to appear at a supervision meeting, a Marietta criminal defense lawyer can usually sweet-talk the probation officer into giving the defendant another chance.
Still other infractions, such as a failure to pay, are minor infractions. Since debtors’ prisons are illegal in the United States, many Cobb County judges won’t revoke probation for a failure to pay money. However, that failure stains a probation record and, as outlined above, could affect early discharge petitions.
Under the new law for probation in Georgia, some things changed, and some things stayed the same. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.
