Georgia’s probation law is a bit like Georgia’s traffic code. Most people cannot drive more than two or three miles without violating at least one traffic law. Fortunately for them, a police officer usually isn’t present to witness the infraction. Even if a police officer witnesses a violation, s/he’s likely to issue a warning rather than a citation.
Likewise, most probationers cannot serve more than two or three months without violating at least one condition of probation. Unfortunately for them, bureaucrats constantly monitor defendants. They know who’s been naughty or nice. We examine some common Cobb County probation violations below.
Defendants must be fully aware of all conditions of probation. Knowledge is power. But this power only goes so far. When violations inevitably arise, a Marietta criminal defense lawyer works hard to obtain the best possible result under the circumstances.
What Does Probation Mean?
Before we get to the violations, we should address a more fundamental matter. Especially in Georgia, probation usually means extended and oppressive court supervision.
Georgia, unlike other states, doesn’t cap the length of probation according to the possible jail sentence (e.g. a possible year in jail means a maximum one year of probation). Furthermore, Georgia’s conservative lawmakers routinely burden probationers with restrictive conditions, and Georgia’s conservative judges often rubber-stamp them in court.
Defendants can avoid these maladies if a Marietta criminal defense lawyer aggressively challenges the state’s case at trial or effectively uses post-trial remedies.
Most criminal cases have procedural, substantive, and/or affirmative defenses. The state has the burden of proof and the burden of persuasion at trial. Prosecutors must establish all elements of the offense and convince jurors these defenses don’t apply.
Relevant post-trial remedies include modification and early discharge. Technically, a Georgia judge can convert restrictive probation into unsupervised probation at any time. As for early discharge, a recent legal change made it easier to obtain this remedy.
Status Violations
Status offenses, like being a drug addict, are mostly illegal in adult criminal courts. But status violations are very common in juvenile courts.
These violations, which are usually included in the terms of probation, include running away from home, truancy, and curfew violations. A status violation is usually a substantive probation violation. More on that below.
Technical Violations
When (not if) defendants commit technical violations, a Marietta criminal defense lawyer usually convinces the probation officer to give the defendant a second chance. Probation officers prefer that people remain in the system. A high probationer population means job security.
Furthermore, even if the probation officer asks prosecutors to file a motion to revoke, the judge probably won’t grant it, unless prosecutors establish a pattern of technical violations.
A failed drug test is a good example. Unless the defendant drives while under the influence of a substance (which is DUI), a one-time failed drug test probably won’t hold up in court. As mentioned, status offenses, like using drugs, are illegal among adults.
Other technical violations include not working and/or attending school full time, falling behind on child support payments, missing an anger management or other class, failing to complete community service hours, and not paying fines, costs, restitution, or other money.
Failing to pay money is another very common technical violation. Most people live hand to mouth, and when payday comes, the Cobb County criminal courts are usually at the end of the line.
Many Cobb County judges won’t revoke probation for monetary violations alone. Such an outcome basically transforms the jail into an illegal debtors’ prison.
Substantive Violations
These infractions are different. Usually, second chances are unavailable. Instead, a Marietta criminal defense lawyer must usually go into damage control mode. That’s especially true since the burden of proof in these matters is only a preponderance of the evidence (more likely than not). So, the defendant caught a new case or s/he didn’t. No ifs, ands, or buts.
Missing a Meeting
We mentioned that missing something like a community service workday is a technical violation. Missing a supervision meeting, however, is a substantive violation. Furthermore, an incomplete meeting (e.g. Paul shows up but doesn’t bring a paystub or other required document) could count as a missed meeting.
Damage control in a probation violation matter usually means a plea that includes a brief jail sentence as a condition of reinstatement. Alternatively, the judge could tack on more time and/or conditions. Marietta criminal defenses lawyers often avoid that outcome at all costs. Burdening a defendant with additional restrictions makes the situation worse, not better.
Catching a New Case
Usually, any offense against the state of Georgia is a new case. Traffic tickets in the state don’t count. An arrest alone is sufficient. If the cops arrest Paul, it’s more likely than not that he committed the offense.
Because of the burden of proof, a motion to revoke could go through even if a Marietta criminal defense lawyer gets that charges dismissed. It’s still more likely than not that Paul committed the crime.
Possessing Contraband
Owner consent is an exception to the search warrant requirement, and most probationers must consent, in advance, to searches. That search could be a pat-down at the probation office or a search of the defendant’s dwelling.
At trial, possession offenses are difficult to prove. The state must establish three elements beyond a reasonable doubt:
- Close proximity,
- Exclusive possession, and
- Actual knowledge.
However, because of the lower burden of proof in probation revocation matters, the state must usually only prove the first element. If Paul was close to an illegal weapon (perhaps in his roommate’s bedroom), the judge may presume he knew about and controlled the item.
Probation violations are serious matters in Cobb County. For a free consultation with an experienced criminal defense attorney in Marietta, contact the Phillips Law Firm, LLC. Convenient payment plans are available.
