By: William C. Head, Georgia Criminal Defense Attorney and Book Author
In Georgia, once a criminal case is resolved by a negotiated plea or by a verdict at trial, and the judge in the criminal court sentences the offender, the presiding judge decides on the appropriate jail or prison time. Depending upon the statutory mandatory minimum jail time, most judicial sentences for criminal charges DO have some time in jail.
Beyond jail time, the court’s sentence includes time that the offender will have to serve on probation, in addition to the GA jail sentence.
This article discusses what occurs after a violation of probation rules is discovered by law enforcement, and the probation department worker seeks a bench warrant for arrest of the probationer. He or she will contact the judge, and swear out an affidavit to the known facts of some transgression (i.e., failing a probation drug test or alcohol ETG test) that will prove violating probation, and justify issuing an arrest warrant, due to an egregious violation of probation rules.
What is Probation in Georgia?
Probation is the suspension (lifting) of all or part of a jail or prison sentence, so that the convicted violator conditionally can go back to his or her community instead of languishing in a jail cell. The probated part of a sentence occurs after the release of an offender from any court-ordered jail time, conditioned upon that convicted citizen agreeing to be under supervision of a state or private contractor probation officer, while performing other conditions of the sentence, which include periodic reporting to the probation officer.
With misdemeanor probation, the rules of compliance are usually more relaxed, except in a DUI Court or Drug Court, where intensive probation or “supervised probation” are implemented.
Special Defense Techniques and Strategies
Alternatively, in some jurisdictions, the criminal justice attorney (who is defending the person charged with violating probation) can go directly to the District Attorney or Solicitor-General, before any hearing. The objective is to seek to negotiate (between defense attorney and prosecutor) a consent order about resolving the disputed issues, for presentation of a structured agreement to the Judge.
In past situations, for some counties or municipal courts, an Atlanta criminal defense attorney from our criminal law firm, has been able to secure an order for immediate release of the client from jail, using this strategy. So, when a probation violation arrest has occurred, or where arrest is imminent, such emergencies require a criminal justice lawyer to drop or reschedule other criminal defense matters, to address this emergency situation for an incarcerated client.
How & Why to Hire a Lawyer for Probation Violation
Once the VOP (violation of probation) occurs, either the probationer or his or her family seek legal advice on how to clear a warrant without going to jail, and then they hire a lawyer in GA to take immediate action. Not all criminal defense lawyers accept either a misdemeanor probation violation or violation of probation felony case.
A completely different set of criminal law skills must be utilized by a criminal attorney seeking to resolve a probation violation problem, since no trial remains to decide guilt and innocence. Experienced criminal lawyers refer to revocations as requiring “kneepad law,” since very little leverage exists to exact a “win” through litigation, since the case is in a post-conviction status.
Our law office’s long-term reputation for aggressive criminal defense, and personal relationships developed from decades of similar criminal law matters may enable us to be able to attack the probation violation case in such a fashion.
Why Probation Revocations Are Usually Emergencies
Many hours of a criminal attorney’s legal time can be consumed, because the criminal defense lawyer from our Atlanta lawyer office will want to confer with the detained person, and invoke attorney-client privilege (usually at the jail).
Only then can our Atlanta attorneys come up with a plan of attack, for the revocation of probation. Call one of our criminal defense attorneys, 24 hours a day, at 404-567-5515, for IMMEDIATE FREE legal advice, on a probation violation.
It is important to note that the detained offender (once in custody) cannot just post bail and get out of jail, absent consent of the judge. This “jail release” issue can only be resolved, typically, after a full revocation hearing, which can be scheduled a week or more in the future.
Conditions of Probation and a 4th Amendment Waiver
Depending upon the crime (misdemeanor or felony), the conditions of probation in Georgia can be quite extensive, invasive and time-consuming. Moreover, to receive probation, the probationer typically must sign a 4th Amendment waiver, through which he or she agrees to allow police (while probation is in place) to conduct a warrantless search the person’s residence, or come to the workplace or to conduct a full search when the probationer is in any motor vehicle.
So, for the person under a probated sentence, he or she is without the usual Fourth Amendment protections of regular citizens, who are protected by the US Constitution. The person from the probation department need not have reasonable suspicion (articulable suspicion) for the search, either. Plus, no legal necessity for a known crime being committed is needed, for law enforcement to get a judicial warrant.
After a Violation of Probation Warrant, What Happens?
Being allowed the privilege of getting out of jail, going home and submitting to oversight by a probation department, is done at the Judge’s discretion. The person “serving a sentence” on probation has agreed to perform certain rehabilitative steps, to not reoffend, and to not incur any new criminal charges, as the core conditions of being on a probated sentence.
Being on probation (for the person serving a sentence for a felony or misdemeanor) is a matter of “judicial grace,” and is subject to being taken away by the sentencing judge, for any probation violation. Various types of defaults or new crimes can lead to issuance of a probation warrant, and not only for new criminal law violations.
How to Get a Warrant Lifted, At or Before a “Show Cause” Hearing
Depending on the nature and type of the VOP, either an arrest warrant will be issued by the Judge, or (on the probation officer’s request) a hearing to ”show cause” (why to NOT put you in jail or prison) will be scheduled to present facts relevant to why the probation violation warrant was issued. At this court date, the person serving on probation (or his or her criminal defense attorney) must then answer to the judge, and explain extenuating circumstances as to how and why the probationer has not following all directives of the court’s probation order.
For “technical violations” (such as not making payments on time, or failure to meet a deadline for completing a rehabilitation course) the probation officer may simply notify the probationer of a court date for the VOP. A hearing date will be set, and the judge will decide how to deal with the technical default or failure to timely comply.
On more serious issues like skipping out, getting arrested, or the probation officer finding you in a place that the conditions of probation prohibit, the probation department official goes before the judge to get a probation violation warrant. This is how to clear up a warrant without going to jail, and you need a criminal law specialist to have your best chance for a favorable outcome.