The Pitfalls of Probation

It’s a common scene: a defense attorney sitting with a pile of paperwork balanced on his lap, his client next to him. The attorney takes each page in turn and reviews it with the client: the judgment, the stipulation of evidence, the waiver of the client’s constitutional right to have a full trial.

This is the plea process, the way the majority of criminal cases end – with the defense attorney making sure his or her client truly understands what he is pleading to and understands what it all means.

Often the most time-consuming and complicated part of the plea paperwork is explaining the terms of a client’s probation. It seems simple enough at first glance – just a list of things you have to do, and a list of things you can’t do. Pay some fees. Go see your probation officer. Don’t use controlled substances. What’s the big deal?

Well, even the simplest misdemeanor probation can be a big deal. Newbies to the probation process often don’t appreciate that the conditions of probation aren’t guidelines, they are strictly-enforced rules. Even something that seems minor, like paying your fees a day later, or being 30 minutes late to a probation office meeting, or having a month where you do 1 or 2 hours less community service than you’re supposed to (or even turning in your community service time sheet late) can result in you getting adjudicated or revoked and sent to jail.

When you walk out of the courthouse with your probation paperwork in hand, you often feel relieved, as if you finally got the case over with. In reality your case has just begun. After shepherding countless clients through this process, I’ve learned a thing or two (mostly from my clients’ good and not-so-good decisions!). So for all you newbie probationers out there, here are some guidelines to consider.

  1. Get it done early – community service hours, fees, anger management classes, victim impact panels, drug awareness classes. Figure out any and every hoop you have to jump through and then get it over with as soon as possible. If you are eligible to early terminate your probation or deferred adjudication, having all your fees paid up or completely paid off and your community service over and done with will make it easier for the court to agree to sign the early termination order.
  2. Make your attorney aware of logistical problems BEFORE you formally enter your plea – practical considerations like transferring your probation to a different county, work-related out-of-State travel, and work/school scheduling conflicts are much easier to handle during the plea process rather than three weeks into your probation. There will be a judge right there ready to hear any issues and make a ruling on them, which will give the probation officer guidance on whether you can get an exemption or exception to the normal rules. By bringing these issues to the court’s attention early on, I’ve been able to successfully get GPS monitoring devices removed, community service waived, sex offender living restrictions modified, and curfews lifted on weeknights.
  3. Be nice to your PO – whether your probation officer deserves it or not, treat them with respect, get to your meetings early, and promptly respond to any phone call, email, or text they send you. Ignoring or stonewalling your PO will never work out in your favor, even if they are the ones making a mistake.
  4. Don’t use drugs . . . OR ALCOHOL. Yes, it will be obvious from your probation paperwork that you are not allowed to use controlled substances or drink alcohol. But many probationers mistakenly ignore this section, especially the prohibition on drinking. It’s probably unrealistic to think that you’ll abstain from alcohol for the whole duration of your probation, but be careful. Many counties, including Montgomery County, now require all probationers to call in every day to see if they have to submit to a random urinalysis, so you could get caught even if you drink only on rare occasions. ¬†Additionally, I’ve had clients get reported for drinking alcohol by citizens in the community. So remember, a dirty UA isn’t the only way you could get caught.
  5. If you don’t have reliable transportation, don’t plea to probation. It’s that simple: without a car, you’ll get adjudicated or revoked. That parent or friend who promises to bring you to your PO meeting will inevitably bail on you. If you have to rely on other people to physically get to where probation wants you to go, you’re going to get burned. Do everything you can to get your own source of transportation before agreeing to any probation term.
  6. Watch out for additional conditions – finally, be aware of the fine print on your probation contract. Many conditions of your probation will still be unknown at the time you enter your guilty plea. Depending on the outcome of various court-ordered screening tests (for drug or alcohol abuse, etc.), the probation office may direct you into substance abuse classes or counseling that you had not anticipated taking. Because your probation contract directs you to attend any classes recommended by the office’s screening tests, your attendance will be considered mandatory.

I hope this list helps those of you wanting to know a little more about the potential pitfalls of probation. Remember, please consult your attorney if you have specific legal questions about your case — this article is for general information purposes only, and should not be considered legal advice.


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