Will getting my new case dismissed make my probation violation go away?

Published on April 3, 2013

written by Mark A. Gallagher

Will getting my new case dismissed make my probation violation go away?

California Criminal Law

I practice criminal defense in Los Angeles, Orange County, and everywhere else in Southern California. Like a true Sureno, I handle everything south of Bako. A question that comes up quite is bit deals with clients facing a probation violation in connection with a new case. The most common scenario involves a situation where the new case is a small issue such as a petty theft, driving on a suspended license, hit and run, etc. The client will be facing minor penalties such as fines, or community service on the new case, but the BIG issue is the probation violation. If you are on probation for any crime in California, you have jail or prison time hanging over your head. If you comply with all of your terms and conditions of probation, you stay out of custody, but if you violate, you could face the time. And it’s very common in California criminal courts to sign “deals with the devil” (aka joint suspended or execution of sentence suspended) where there is a very large prison term of say 5 to 10 years hanging over your head.

So in this situation, the penalties for the new case aren’t the problem, the probation violation is the problem. And the question becomes, “how do we avoid the violation?” The natural progression is to focus on making the new case go away. This could be done through a civil compromise, other corrective measures, creative plea deals, a not guilty verdict at trial, diversion programs, motions for illegal search and seizure, the list is endless. But the question remains, if my new case goes away, does the probation violation go away too?

The answer is “it depends”

Getting the new case that is the basis for the violation dismissed in whatever fashion does not guarantee the probation violation goes away. The court or prosecutor could still proceed on the violation independently of the new case and if the standard is met the violation stands. This is because the basis for the violation, presumably “violate no law” does not need to be proven by the same standard as the new case. Client is entitled to proof beyond a reasonable doubt and a jury trial on the new criminal charge. Client only gets preponderance of the evidence and a bench trial for the probation violation hearing. Another issue is the relaxed evidentiary standards at probation violation hearings regarding hearsay and other issues.

Now in reality, getting the new case dumped will often make the probation violation go away too. So get the civil compromise, or win the Serna motion, get an infraction, or whatever you can on the new case to make it go away and most times the probation violation just disappears and the court finds no violation. But if you get an overachieving Judge, DA, or probation officer, they may elect to proceed anyway on the violation. At that point you can proceed with Probation Violation hearing to see if violation can be proven by standard above-bench trial, preponderance, relaxed evidence standards for hearsay, etc.