Defenses to Violations of Probation

For the court to find that probation has been violated, it must find that the violation was both willful and substantial. So, defenses may include demonstrating that the violation was not willful or that there were legitimate reasons for the non-compliance.

Other defenses to violations of probation:

• Inability to Pay:  Failure to comply with financial obligations, alone, cannot be the basis of a violation of probation.  The court must first determine whether the probationer had the ability to pay and if their failure to pay was intentional.

  
  

• Valid Explanation for Non-Compliance: If there are valid reasons for not being able to comply with the terms of probation, such as a medical emergency or other unforeseen circumstances, this may present a defense to the violation.

  
  

• Unaware of Special Condition: A probationer is presumed to know the standard conditions of probation and must be informed of any special conditions of their probation. However, if a judge or probation officer never informs the probation officer of a special condition, the probationer cannot be found in violation of the condition.

  
  

• Proof of Compliance:  Many violations occur because of a lack of communication between the probationer and their probation officer.  Oftentimes, a probationer simply fails to submit proof that they have completed certain conditions.  If the probation officer does not have proof of completion, it is their job to submit a violation of probation affidavit.

  
  

• Constructive Possession: Oftentimes, it is alleged that a probationer is in possession of either something illegal or something they are not allowed to possess while on probation.  If that item is not found in the probationer’s exclusive possession, the state must prove both elements of constructive possession in order to sustain the violation of probation.  There must be independent evidence showing that the probationer had knowledge of the presence of the item and the ability to exercise dominion and control over the item.

  
  

If you or someone you know has questions about defenses to a probation violation, contact Howeller Law P.L.L.C. today. Consultations are always free.