Almost all defendants get probation in Georgia. The Peachtree State has the highest misdemeanor and felony probation population in the country. Nationwide, one in fifty people are under community supervision. In Georgia, that ratio is one in twenty-five people.
All of these people break at least one rule at least once. That’s especially true since probation terms are so long in Georgia. Because state law doesn’t cap probation periods, many felony probations last ten years or more. Some break the rules and don’t get caught. Others get caught, but a Marietta criminal defense lawyer reduces or eliminates the negative consequences of a probation violation.
A motion for early discharge cuts these violations off at the pass. Defendants cannot violate probation if they’re no longer on probation. Generally, if the defendant has served at least a third of the probation, hasn’t committed any new offenses, has paid all fines and restitution, and has a clean probation record, the judge could terminate probation, if such termination is in the best interests of society and the defendant.
If a probationer violates Georgia law, there’s not much a Marietta criminal defense lawyer can do, beyond damage control. A perfect record doesn’t help. Supervision officers have little or no discretion in these matters. Usually, if the probationer gets arrested, it’s go to jail, go directly to jail, and do not collect $200.
Damage control often means a plea bargain arrangement that includes a little jail time as a condition of reinstatement. Alternatively, if the judge deferred disposition in the original case, the judge might proceed to judgement and put the defendant back on probation.
This deal usually happens prior to arraignment, which typically happens about seventy-two hours after arrest. So, a Marietta criminal defense attorney must act quickly. Furthermore, bail is usually unavailable in probation violation cases. So, if a lawyer puts off the hearing because s/he needs more time to prepare, the defendant goes back to his/her cell, at least in most cases.
All other violations, including this one, are technical violations. A Marietta criminal defense lawyer can intervene early or late, preferably early, to stop bad things from happening.
Most probationers must meet with a supervision officer once or twice a month. Unless the probationer must provide a chemical sample, these meetings are pretty pointless. Therefore, it’s easy to see why probationers don’t appear at them.
Often, a Marietta criminal defense attorney reaches out to a supervision officer immediately after a missed meeting. If the probationer has a good excuse, the supervision officer is usually willing to call the dogs off. “I forgot” isn’t a good excuse. “I didn’t have a ride” isn’t much better. Something like “A family emergency came up” usually suffices.
Sometimes, authorities arrest the probationer before an attorney has a chance to make that contact. If that happens, an attorney usually uses the probationer’s good record to obtain a favorable result at the hearing.
Failed Drug/Alcohol Test
Hair tests and blood tests are much more accurate alcohol tests than breath tests. But supervision officers must refer probationers to a clinic and wait weeks for the results. Furthermore, hair tests are costly and blood tests require search warrants.
So, most supervision officers administer in-office Breathalyzer tests. These tests are notoriously unreliable. Improper calibration is the biggest issue. In 2021, these issues prompted Massachusetts prosecutors to stop using breath tests. The roots of this problem go back to 2017, when a judge ruled that Draeger Alcotest 9510 machines produced unreliable results
Drug tests prove there were drugs in the defendant’s system. But these tests don’t prove these drugs were illegal. Many prescription drugs, especially prescription painkillers, contain controlled substances. Additionally, medical marijuana is legal in Georgia for many purposes.
Speaking of Breathalyzers, a portable Breathalyzer requirement is a common condition of DUI probation. A mechanic connects an IID (ignition interlock device) to a vehicle’s ignition. Prosecutors usually cannot revoke probation for substantive or technical IID violations.
IIDs normally register “fail” at a .04 BAC level. That’s well below the legal limit, even for commercial operators. So, in most cases, a failed IID test isn’t evidence of DUI. In fact, it’s evidence that the probationer was not driving under the influence. Things are different if the probation agreement includes an abstinence clause.
We should stop right here and point out that almost every clause in a supervision agreement is negotiable. Frequently, defendants sign on the dotted line without even reading these lengthy documents. An attorney should always review this document and negotiate certain provisions before the defendant commits to anything.
Technical IID violations often involve a failure to pay maintenance, monitoring, or installation fees. Arguably, it’s illegal to incarcerate defendants for failure to pay a debt, especially if a private company is the creditor. More on that below.
Domestic assault probation usually includes a keep-away order. If the victim and defendant work and/or live in the same area, these orders are almost impossible to follow. Generally, a stitch in time saves nine. Negotiating more favorable terms at the outset is usually easier than justifying violations when authorities try to revoke probation.
Failure to Pay Fines/Restitution
One reason the probation population is so high is that the fees are so high. The state loses money when it sends people to jail and makes money, or at least doesn’t spend as much money, when courts place people on probation.
Supervision and other fees average between $71 and $121 per month. Defendants must also pay fines, court costs, and restitution, in addition to fees. That’s a lot of money for people who barely make ends meet. As a result, probationers often fall behind on payments. Two or three months of missed payments could accumulate into a $500 or $600 bill.
Failure-to-pay motions to revoke probation are common. They’re easy to prove. The probationer paid or s/he didn’t pay.
Many Cobb County judges won’t incarcerate people, even probationers, simply because they don’t pay money. That action would turn the county jail into a debtors’ prison, which are illegal in the United States.
Probation violations don’t necessarily mean jail time. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.