Probation Violations

Probation comes from the Latin word “Probare.” It means to test or to prove.

That’s as good of a term as any, as probation most certainly is a type of test where one must prove themselves.

Probation and probationary terms are part-and-parcel of the NC Criminal Laws, particularly those involving sentencing as part of an entry of a Judgment and Commitment (sentencing).

While the specific terms and conditions of probation may vary between felony vs misdemeanor charges, there are some basic aspects that are important to understand.

North Carolina General Statute § 15A-1343 - Conditions of probation sets forth the general purpose of probation, that is:

“To insure that the defendant will lead a law-abiding life or to assist him to do so”

With that mandate, coupled with the threat of being sent to jail or prison for willfully violating probation, the Court can impose a strict set of rules.

In the past, some people on probation decided, “I’ll just do the active time and be done with probation.”

Defense lawyers would “withdraw consent” to being on probation and ask for the “time to be activated.”

That too has changed, where the terms of probation may be modified, including an imposition of some jail time only to be followed with an extended period of probation.

Upon being found guilty after a bench-trial or trial by jury, or upon a plea of guilty, Judges in North Carolina impose a “sentence.”

That is formally referred to as a Judgment and Commitment in North Carolina.

Depending on the type of charge (felony vs misdemeanor), there are different judgments (sentences) that may be imposed.

As such, felony criminal charges in North Carolina are sentencing according to the NC Felony Punishment Chart.

Misdemeanor criminal charges are subject to the misdemeanor punishment chart.

While there are certain similarities, there are also important differences between the way felonies and misdemeanors are handled in court.

One commonality is the calculation of a “PRL” or Prior Record Level of the person convicted of criminal charges.

That is done pursuant to a points system of sorts, where evidence of convictions, and the number of convictions for prior criminal charges, are presented to the Court as evidence during the sentencing hearing.

The State (the prosecutor) bears the Burden of Proof to prove the existence of prior criminal convictions.

As such, the Assistant District Attorney or “ADA” must present evidence Beyond a Reasonable Doubt of prior convictions.

In North Carolina, certain out-of-state and federal convictions may be considered as part of sentencing.

The Court is given three general options for sentencing:

1. C – Community Punishment(s)
2. I – Intermediate Punishment (s)
3. A – Active Punishment (prison / jail)

In imposing a sentence, the Court (the judge) may “suspend” an active term of imprisonment, when legally and factually appropriate, placing the convicted defendant on probation.

The length of time on probation, including the conditions of probation, are subject to a tremendous amount of discretion by the sentencing Judge.

There are different types of probation in North Carolina, including:

1. Supervised Probation
2. Unsupervised Probation
3. Intensive Supervision

Unsupervised probation is generally considered the minimum level or type of probation. It requires little, if any formal reporting to a probation officer.

In fact, a probation officer is not formally assigned as part of unsupervised probation in North Carolina.

The Court may require you to “remain of good behavior and not violate any laws of the State.”

Unsupervised probation in Charlotte may also involve keeping representatives of the “post judgment center” apprised of Court Ordered compliance with things such as Community Service, Alcohol/Drug Screening and Treatment, and payment of Court Costs and Fines.

Failure to comply with the terms and conditions of the Court, even when sentenced to unsupervised probation, can result in the revocation of the suspended portion of the sentence and activation of the suspended sentence (jail/prison).

If you don’t do what the Judge Orders as part of unsupervised probation, you can be arrested and the active jail or prison term may be imposed in the appropriate legal circumstances.

Regular supervised probation requires reporting to and visiting a “PO” (probation officer) on a regular basis.

With supervised probation, the probation officer confirms compliance with the Court’s Order, requiring proof of:

1. Maintaining employment and/or actively looking for a job
2. School attendance
3. Random drug testing “dropping urine”
4. Alcohol Treatment / Drug Treatment
5. Payment of restitution, fines, and court costs
6. Performance of Community Service Hours
7. Travel Permits – Out of State / Out of County Travel (as directed)

Probation Officers wear weapons, carry a badge, and have “arrest authority” in North Carolina.

As part of a suspended term, and a common condition of supervised probation, a Search Warrant may not be required to search you, your house, and/or your car.

Probation Officers in Charlotte (and throughout NC) are employees of the North Carolina Department of Public Safety, Division of Adult Correction and Juvenile Justice.

Intensive probation is an alternative to a straight active term of imprisonment and may include house arrest, electronic monitoring, and daily interaction with your probation officer, together with the other Regular Conditions of Probation such as:

1. No future criminal charges or convictions – A pending charge, even without a conviction, may serve as a basis for a Probation Revocation
2. Unless granted written permission, stay within the jurisdiction of the Court
3. Report as Directed by the PO for visits, at reasonable places and times, in the discretion of the Probation Officer
4. Not willfully avoid supervision or “abscond”
5. Make your whereabouts known
6. Pay Child Support
7. Do not possess firearms, deadly weapons, or explosive devices
8. Pay Probation Supervision Fee
9. Remain suitably and gainfully employed
10. “Faithfully” pursue studies, training, etc., for suitable employment
11. Payment of Fines, Community Service Fees, Probation Supervision Fees, Restitution, and Costs of Court
12. Pay the costs of Public Defender (appointed legal counsel)
13. Not use or possess illegal drugs or substances without a prescription
14. Submit to searches (warrantless searches)
15. Waive Extradition Proceedings (all rights regarding extradition proceedings)
16. Submit to finger printing, photographs, and DNA sampling as directed

Common violations of probation include things like:

1. Picking up new criminal charges
   1. A criminal charge may be enough to serve as a basis for a Probation Violation. A criminal conviction is not necessarily required. That’s true for felony or misdemeanor charges.
2. Missing appointments with your probation officer
   1. Absconding and not keeping in regular touch with your PO, changing addresses without providing information and the new address, and missing appointments without good reason are common bases for revocation of probation in Charlotte.
3. Failing to attend court, Failure to Appear (FTA) and Orders for Arrest (OFA)
   1. Missing court and failure to attend mandatory court appearances, even for minor criminal charges and some traffic tickets, can result in a probation revocation
4. Failing to Pay Court Costs, Fines, and Fees
   1. Ability to pay is a considered by the Court
5. Failing a Drug Test (subject to the Court’s Order) / Positive Drug Screens
   1. Some leeway may be given at the beginning of probation, especially after the consumption of marijuana, where there may be trace amounts of THC remaining in your system. Each case is different and such “leeway” is by no means guaranteed in every instance.
6. Associating with people prohibited by the Court
   1. The Court may impose territorial bans and prohibit co-defendants from associating with one-another
7. Leaving the jurisdiction
8. Traveling without permission
9. Leaving the State
10. Failing to submit to a Warrantless Search
11. Failing to maintain employment

Willfully violating probation is taken seriously by Charlotte criminal defense lawyers.

That’s because, generally speaking, Judges, prosecutors, law enforcement, and probation officers view probation as a “second chance.”

“Failure to comply with the Court’s Order (judgment) is supposed to result in a swift response, which may main mean getting served with a Probation Violation and getting ‘locked-up’.”

– Bill Powers, Charlotte Criminal Defense Attorney

If found in Willful Violation of Probation, after a Probation Violation Hearing, the Court may impose addition conditions such as:

1. Modification of Probation, Ordering compliance with the additional requirements of probation
2. Extend the period of supervision / Extend Probation for a period up to five (5) years
3. Terminate Probation
4. Revoke Probation – activation of suspended sentence or term of incarceration or imprisonment
5. Continue probation under the same terms and conditions, imposing additional conditions of probation and/or extending the period/length of probation