In Georgia and most other jurisdictions, almost all offenders, including most violent, repeat offenders, receive probation. The reason is mostly economic. Georgia spends almost a billion dollars a year maintaining its prisons. The probation (community supervision) system, on the other hand, is at least partially self-sufficient. Supervision fees, court costs, and other probation fees make up a significant portion of the Cobb County Probation Office’s budget.
Additionally, from a statistical standpoint, most probationers successfully complete the program. A significant number of the failures are absconders. These individuals never make any attempt to comply with the terms and conditions of probation.
So, the work of a Marietta criminal defense lawyer does not end once the judge’s gavel falls. As outlined below, probation usually includes a long list of conditions. Violating any one of them could lead to a probation revocation action. These infractions are rather easy to establish in court, either because the proof is straightforward, or the burden of evidence is low. Probationers either attended a meeting or they didn’t. Most judges don’t accept any excuses. Furthermore, the burden of proof in a probation revocation matter is usually a preponderance of the evidence. That’s much lower than the burden of proof in regular criminal court.
Fortunately, there are several ways to resolve these matters in a relatively painless way. Frequently, these resolutions involve a brief jail term as a condition of reinstatement. Typically, these violators have already served several days in jail by the time they see judges. So, a jail term is usually time served. Alternatively, if the defendant received deferred adjudication probation, the judge often finds the defendant guilty. So, a conviction appears on the person’s permanent record, but the probation terms don’t change.
Typically, community supervision includes some boilerplate conditions which apply to everyone, as well as some offense-specific and even case-specific requirements in some cases.
General conditions are designed to balance supervision with freedom. The idea is that probationers should be able to live their lives, but they should be firmly under the court’s thumb. Some common conditions include:
- Commit No Further Offense: Usually, committing an offense means being convicted of one. In some extreme cases, such as murder, a mere arrest might satisfy this requirement. If probationers violate this condition, the violation is difficult to successfully resolve. There’s basically a presumption that this person shouldn’t have been placed on probation in the first place.
- Report Regularly: This condition is probably the second most important one. The biggest difference is that probationers must typically miss at least two or three weekly, bi-weekly, monthly, or other meeting before the case goes to prosecutors. A no-call, no-show at a counseling session, community service appointment, or other such event usually counts as a missed report.
Most jurisdictions have very clear rules about these two conditions. Once probationers violate them, the case automatically goes to prosecutors.
Many other boilerplate conditions are more technical violations. Sometimes, especially if the violation involves paying money, the infraction might not even support a probation revocation case. That’s because, to many judges, Common technical conditions include:
- Paying fines, court costs, and supervision fees,
- Performing community service,
- Avoiding “injurious habits,” a rather vague phrase which usually means no substance abuse,
- Working and/or attending school full time, and
- Agreeing to random searches.
That last bullet needs some explanation. Usually, police officers need probable cause to obtain search warrants. Blanket consent is a common probation and parole condition, especially if the defendant was convicted of a possession offense, like drug possession or pornography possession.
Finally, we come to offense-specific conditions. These conditions are particularly common in DUI and domestic battery cases.
DUI conditions often include an ignition interlock device and alcohol counseling. IIDs are essentially portable Breathalyzers which are attached to a vehicle’s ignition. To start the car, the driver must provide a breath sample. If the sample is above a certain level, usually .04, the vehicle won’t start.
For people who use their personal vehicles for work, such as salespeople, an IID could violate the Eighth Amendment’s cruel and unusual punishment clause. An IID is almost like putting these people in the stocks. A Marietta criminal defense lawyer can use this same argument to increase the BAC cutoff to something closer to .08.
Alcohol counseling could be an issue as well, especially for first-time offenders. Many of these defendants just had one too many and got caught. They don’t have substance abuse issues. Sometimes, if probationers say they don’t have a problem, the substance abuse counselor claims they are in denial, and refuses to certify them. A Marietta criminal defense lawyer must ensure that probationers only go to counselors who are more open-minded.
Domestic battery conditions often involve no-contact orders. Occasionally, alleged victims have already obtained protective orders, so this condition is moot.
Truthfully, most probationers don’t have a problem staying away from alleged victims. But they do have a problem with the collateral consequences of a no-contact order. These consequences include problems in family court proceedings and other family-related matters.
A domestic battery conviction, even one that is a number of years old, often torpedoes custody and other such cases. To avoid such problems, a Marietta criminal defense lawyer might convince a prosecutor to drop the “domestic violence” portion if the defendant agrees to a more stringent or permanent no-contact order.
Additionally, some people need to talk to their ex-partners about material possessions, their children, and so on. It’s usually best for a Marietta criminal defense attorney to handle these interactions. This approach greatly reduces the possibility of a he-said, she-said probation revocation matter.
Probation is usually a part of criminal cases, but probation violations don’t have to be part of one. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.