Westwood / Dedham, Massachusetts, Criminal Defense Attorney
Your failure to comply with the conditions of your probation will oftentimes result in a Probation Surrender Hearing. Even a probationer who is merely charged with a new crime, but not yet actually convicted, will likely face a probation surrender under Massachusetts law. Depending upon your prior criminal record and other circumstances, such as the crime and sentence for which the original probation was imposed and the nature of the alleged new probation violation, it may also result in a probation detention hearing. A probation detention hearing is a device employed by the probation department to “detain” a probationer without bail until the final probation surrender hearing occurs.
Contact a Dedham/Westwood lawyer at the Law Office of Philip L. Arnel.
The principal goals of probation are rehabilitation and public protection. In addition, punishment, deterrence and retribution are also secondary objectives of probation. Judges have the right to modify conditions of probation but, in order to do so there must be a material change in circumstances. A probation officer does not have the discretion to alter or modify conditions of probation.
If you are being “surrendered,” you must first receive written notice from the probation department which must inform you of the alleged violations. The probation surrender hearing is not to be held less than seven days after the notice is given, unless waived by you, and should not be held later than 30 days, although this rule is oftentimes ignored. There is a right to counsel at the probation surrender hearing and counsel should be given a reasonable opportunity to prepare and present a defense.
A preliminary hearing is required only when a liberty interest is at stake, meaning a probationer is taken into custody because of an alleged violation. If a probationer is incarcerated on other matters at the time of the violation proceeding, there is no right to a preliminary hearing. While the standard of proof for evidence at the preliminary hearing is probable cause to believe the defendant has violated the probation, the standard at the final hearing is preponderance of the evidence.
Strict rules of evidence do not apply to probation violation hearings. Hearsay is admissible if it is reliable and there is good cause to deny confrontation. Illegally obtained evidence, such as statements obtained in violation of Miranda rights and unlawfully seized evidence, is admissible. The district attorney may represent the probation department at a probation surrender hearing.
A judge, after finding a probation violation, must determine whether to revoke the probation and sentence the defendant or, if appropriate, modify the terms and conditions of probation. A judge may also simply continue probation. Possible dispositions upon revocation of probation include:
- Continue on same terms and conditions originally imposed
- Impose guilty or juvenile delinquency finding (if on a CWOF)
- Impose suspended incarceration sentence or commitment to DYS
- Incarceration or commitment to DYS
- Extend term of probation
- Modify conditions of probation
- Increase level of supervision
- Electronic bracelet monitoring
- House arrest
- Alcohol testing and drug screens
- Community service
- Terminate probation
How Can An Experienced Massachusetts Criminal Defense Attorney Help?
- Prevent a conviction from entering upon your permanent criminal record
- Avoid collateral consequences such as loss of driver’s license, employment, financial aid, subsidized housing, government assistance, benefits, etc.
- Prevent the imposition of overly restrictive conditions
- Advocate in unfavorable situations for reasonable conditions of probation, such as electronic monitoring, stay away orders, curfews, surrender of passports or licenses (motor vehicle or firearms), etc.
- Avoid drug and alcohol testing, counseling and community service
- Eliminate, stay or reduce the term of your probation
- Prevent incarceration or juvenile commitment to DYS
- Save you money in court fees, fines and monthly probation fees
You do not have to face these proceedings alone. Contact experienced criminal defense attorney Philip L. Arnel today to schedule a free initial consultation.