Cambridge Probation Violation Lawyer
For the past 18 years, the Mahoney Criminal Defense Group has been successfully defending those accused of violating their probation, persuading Massachusetts District Court and Superior Court judges not to find the probationer in violation of his probationary terms, or to modify the terms of probation, rather than incarcerate the probationer. In more than a few instances, we have persuaded a judge to terminate probation altogether, even after the court found the probationer to have violated his probation. If you are being accused of violating your probation, call us at 617-492-0055 to arrange a free consultation with us.
Conditions of Probation
A Massachusetts court, as part of a continuance without a finding, guilty plea, or guilty finding, may impose a period of probation to be “served” following a defendant’s completion of his sentence or in lieu of incarceration.
In Massachusetts, probation may be unsupervised or supervised by a probation officer. If supervised, it usually includes conditions that the probationer must abide by to complete his supervision. Conditions may include:
- Reporting to the probation officer.
- “Stay away” orders, either from a place or from the victim.
- Notifying the court of any change in residence.
- Paying restitution.
- Paying court imposed statutory fees, “court costs,” or probation supervision fees.
- Community service.
- Abstaining from alcohol or illegal drugs.
- Submitting to random drug and alcohol testing.
- Participating in AA or NA or completing alcohol or drug counseling.
- Maintaining employment or making reasonable efforts to secure employment.
- Making reasonable efforts to pay child support.
- Not leaving the Commonwealth without the permission of the court.
- Abiding by restraining orders.
- Abiding by all state and federal laws.
Most Massachusetts probation officers require probationers to sign a contract listing the probation conditions. This contract is designed to provide the probationer with adequate notice of the conditions of probation and to prevent the probationer from claiming he was unaware of the conditions of probation if he fails to complete them.
Violations of Probation
A probationer may find himself facing a probation revocation or surrender hearing if he is accused, either by his probation officer or the police, of violating the terms of his probation. A probationer may be considered in violation if a court issues a restraining order against him.
Before a probationer is “violated,” he is entitled to written notice of the probation officer’s intent to ask the court to find him in violation of the terms of his probation. This notice must identify the violation, as well as the date, time and place of the hearing. The probationer is entitled to seven days notice and the hearing is usually scheduled within 30 days of the alleged violation. At this initial hearing, the court formally notifies the probationer of the alleged violation, makes a preliminary determination of the necessity of holding a full hearing on the alleged violation, and, if it deems a surrender hearing necessary, decides whether or not to jail the probationer pending the outcome of the surrender hearing. Other than the final determination on the violation itself, the court’s decision on whether or not to hold the probationer until the final surrender hearing may prove critical to defending the probationer for the following reasons:
- Once a court incarcerates a probationer, it is far more likely to find him in violation of probation and to sentence him to a term of incarceration;
- If the probationer is not held, he may be able to mitigate the violation by, for example, paying overdue fees or restitution, attending AA, or completing other outstanding conditions; and,
- A probationer will be able to provide greater assistance to his lawyer, and therefore to himself, if he is free, rather than incarcerated.
At the final hearing on the probation surrender, the court determines whether the probationer has violated the terms of his probation and, should the court find such a violation, choose whether to:
- Simply note the violation and allow the probationer the opportunity to complete the original terms of probation;
- Modify the terms of probation by either adding conditions or extending the term of probation;
- Terminate probation altogether, especially if the probationer is found to be in substantial compliance with the majority of its terms;
- Declare the probationer in violation of probation, revoke probation, and impose a suspended sentence or a period of incarceration authorized by the statute that the probationer had been convicted of violating.