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On Behalf of | Jan 23, 2018 | General Defense Info

By James J. White, Directing Attorney at Smith & White, PLLC.

It can be bad enough you did not realize you were on probation. But many cases do have a “stealth” probation. You do not have a probation officer, you do not need to do anything affirmative for the court, yet you are still on probation. You maybe did not know or totally forgot and then something unexpected happens.

Say you got pulled over for that Reckless Driving or Driving with a Suspended License (another stealth charge I might add but that’s for another article) which are things most people think are tickets but are actually crimes. Or, maybe a little worse, you actually are arrested on a new crime allegation like the mandatory arrest law for domestic violence accusations.

You bail out or appear in court and walk out only to learn you are being transported, arrested or summoned on an old court case. Yes, many old court cases have a stealth requirement of No New Law Violations, Law Abiding Behavior and/or No Similar Incidents. That means the new arrest or charge is potentially a violation of that condition on the old case and you can go back to jail on the old case.

To make matters worse, many of those old cases are now imposing a “probable cause” finding basis for violation. What that means is that a Judge merely needs to find “probable cause” on the new allegation and you can go back to jail on the old case. Probable cause is just that if everything that were claimed is true would the accusation be an actual crime. There is No Showing, No Determination and No Fact-Finding that you actually committed the new offense. But you can go to jail anyway on the old case.

That means that even though it turns out you were not Reckless because even though the Officer caught you weaving through traffic you were doing so at a slow speed (an actual case) or Department of License had their records incorrect and your license actually was valid (many actual cases) or your drunk girlfriend who was upset about something else when she claimed you grabbed her admits the truth (many actual cases), you can go to jail anyway on the old case.

The good news is that the “probable cause” standard for a probation law violation is likely illegal without the proper advisement. It is a recent trend that Courts, especially Municipal Courts, are switching over to this standard. However, most are not adding in in the proper advisements to make this switch legal. Case law, In RE Blackburn among many other cases, set Minimal Due Process requirements for finding a probation violation. By using this probable cause standard, Courts are having you waive important Minimal Due Process Rights without telling you. That’s not legal.

Why is this happening you ask? It seems many prosecutors and defense attorneys are not properly explaining the law to the Judges. Before you go to jail because your Rights were violated, reach out to the criminal defense attorneys of Smith & White, PLLC.