If you live in New Jersey, you may occasionally hear people quote Hamilton, the Musical, “Everything's legal in New Jersey.” But if you come up against the criminal justice system here, you know that's not true. However, those of us in New Jersey are lucky to have a criminal justice system that provides rehabilitation opportunities rather than automatic incarceration if you break the law. You won't even have to fight a duel. Probation is a form of rehabilitation that allows the judge to sentence you for a period of time with no prison time as long as you can meet certain release conditions.
If you go through the Pretrial Intervention Program or New Jersey's drug court, the judge may also sentence you to probation rather than time in jail or prison. Probation typically requires close supervision by a parole officer, as well as other conditions on your behavior imposed by the court. If you don't meet those conditions, you violate your probation. If you violate your probation, the judge can revoke it and issue a warrant for your arrest. The judge can then resentence you according to the New Jersey statutory guidelines for your original crime.
What is Probation?
Probation is an alternative to prison or jail if the court determines that you are at lower risk of committing additional crimes. With respect to probation, the New Jersey Revised Statutes states:
Period of Suspension or Probation; Modification of Conditions; Discharge of Defendant
a. When the court has suspended imposition of sentence or has sentenced a defendant to be placed on probation, the period of the suspension shall be fixed by the court at not to exceed the maximum term which could have been imposed or more than 5 years whichever is lesser. The period of probation shall be fixed by the court at not less than 1 year nor more than 5 years. The court, on application of a probation officer or of the defendant, or on its own motion, may discharge the defendant at any time.
b. During the period of the suspension or probation, the court, on application of a probation officer or of the defendant, or on its own motion, may (1) modify the requirements imposed on the defendants; or (2) add further requirements authorized by N.J.S.2C:45-1. The court shall eliminate any requirement that imposes an unreasonable burden on the defendant.
c. Upon the termination of the period of suspension or probation or the earlier discharge of the defendant, the defendant shall be relieved of any obligations imposed by the order of the court and shall have satisfied his sentence for the offense unless the defendant has failed:
(1) to fulfill conditions imposed pursuant to paragraph b. (11) of N.J.S.2C:45-1, in which event the court may order that the probationary period be extended for an additional period not to exceed that authorized by subsection a. of this section; or
(2) to fulfill the conditions imposed pursuant to subsection c. of N.J.S.2C:45-1, in which event the court shall order that the probationary period be extended for an additional period not to exceed that authorized by subsection a. of this section.
The extension may be entered by the court without the defendant's personal appearance if the defendant agrees to the extension.
Notwithstanding any provision in this section to the contrary, any order of the court prohibiting contact with a victim imposed on a defendant convicted of a sex offense shall continue in effect following the termination of probation supervision until further order of the court.
How is Probation Different from Parole?
While probation is an alternative to jail or prison, parole is a conditional release from prison offered to inmates who have exhibited good behavior during their prison stay. Those offered parole have already served a portion of their sentence in jail or prison. Parole often comes with many of the same conditions that probation does, including supervision by a parole officer, drug and alcohol treatment, monthly payments, curfews, random drug testing, electronic monitoring, education or employment, and community service. A parole violation can also result in a court revoking parole, imposing stricter requirements, or more jail time.
A court may also sentence someone to prison for up to one year, followed by a term of probation. This type of sentence is called a “split sentence” and still includes probation conditions imposed by the court and close supervision from a probation officer. If you violate probation after serving a split sentence, and a judge sends you back to jail, you will receive credit for time served in jail or prison.
What is a Probation Violation?
A parole violation happens if you break one of the conditions the court set for your probation. The judge in your case can set a variety of conditions on your probation, including requiring you to:
- Have regular meetings with a probation officer,
- Wear a monitoring device,
- Have random drug testing,
- Attend alcohol or drug counseling,
- Attend anger management counseling,
- Not commit any additional crimes,
- Not get arrested,
- Not own or possess a firearm,
- Stay away from certain people or groups of people,
- Stay in a specific geographic area, like the state or even a city.
New Jersey allows additional probation conditions as well. The statute states:
Conditions of Suspension or Probation.
a. When the court suspends the imposition of sentence on a person who has been convicted of an offense or sentences him to be placed on probation, it shall attach such reasonable conditions, authorized by this section, as it deems necessary to ensure that he will lead a law-abiding life or is likely to assist him in doing so. These conditions may be set forth in a set of standardized conditions promulgated by the county probation department and approved by the court.
b. The court, as a condition of its order, may require the defendant:
(1) To support his dependents and meet his family responsibilities;
(2) To find and continue in gainful employment;
(3) To undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose;
(4) To pursue a prescribed secular course of study or vocational training;
(5) To attend or reside in a facility established for the instruction, recreation, or residence of persons on probation;
(6) To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons;
(7) Not to have in his possession any firearm or other dangerous weapon unless granted written permission;
(8) (Deleted by amendment)
(9) To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his address or his employment;
(10) To report as directed to the court or the probation officer, to permit the officer to visit his home, and to answer all reasonable inquiries by the probation officer;
(11) To pay a fine;
(12) To satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience;
(13) To require the performance of community-related service; and
(14) To be subject to Internet access conditions pursuant to paragraph (2) of subsection d. of this section.
In addition to any condition of probation, the court may enter an order prohibiting a defendant who is convicted of a sex offense from having any contact with the victim including, but not limited to, entering the victim's residence, place of employment or business, or school, and from harassing or stalking the victim or victim's relatives in any way, and may order other protective relief […].
N.J. Rev. Stat. 2C:45-1 (2013).
The court can also require that you pay $25 a month as a condition of your probation. But the court can't revoke your probation or place you in jail if you fail to pay it.
How Do Most People Violate Probation?
While the terms of probation differ for every sentence, there are some common ways that people violate probation, including:
- Failing a drug or alcohol test,
- Not showing up for your counseling or anger management classes,
- Getting arrested for a new crime,
- Failing to pay your fines,
- Not completing alcohol or drug treatment programs,
- Falling behind on your victim restitution payments,
- Failing to tell a probation officer about your change in address,
- Failing to tell a probation officer about your change in employment status or employer,
- Not showing up for a meeting with your probation officer,
- Leaving the state without prior approval,
- Violating a restraining or protective order,
- Illegally possessing weapons, and
- Illegally possessing narcotics or prescriptions.
What is the Difference Between Supervised and Unsupervised Probation and is a Violation Different?
In New Jersey, unsupervised probation isn't really unsupervised, but it doesn't typically involve a probation officer. Probation violations typically occur in the same way, whether your probation is supervised or you are part of a diversionary program.
- Supervised Probation
Supervised probation involves regular supervision, of course. You will have a probation officer who will meet with you regularly, usually weekly or monthly. Your probation officer will ensure that you comply with your probation terms and may require that you provide documentation of your participation in school, work, and counseling. They may also drop in periodically at school, your workplace, or your home to ensure compliance.
- Unsupervised Probation
The judge will usually reserve unsupervised probation disorderly persons convictions, which is similar to a misdemeanor. The judge may also assign unsupervised probation if you enter a pre-trial intervention program or a diversionary program through drug court. While we call it “unsupervised probation,” it's not really unsupervised. The court will set check-in dates for you to appear in court. During these check-ins, the court will determine whether you are in compliance with the terms of your probation or diversion program. In some rare cases, the court may allow you to mail in probation progress reports. But in most cases, you will need to appear in court regularly.
Whether your probation is supervised or unsupervised, probation violations occur in much the same way. If you are part of a diversionary program, your supervisor in that program, rather than a probation officer, will report your probation violation.
What Happens if My Probation Officer Thinks I've Violated parole?
If your probation officer thinks you've violated your probation, they will file a probation complaint with the court that sentenced you. The probation complaint will indicate what specific probation conditions the probation officer believes you violated. The court has two options and may send you a summons or issue a warrant for your arrest. Sometimes the same judge you had for your trial and sentencing will hear your probation violation case.
However, it's important to know that a probation officer with “reasonable cause” to believe you violated a condition of your probation can arrest you without a warrant. If a probation officer has reasonable cause to believe that you committed another crime, they can also arrest you without a warrant, and the police can hold you without bail. You may then have to face a hearing for a “violation of probation” or VOP. If you're facing a VOP hearing, you need to speak with a New Jersey criminal defense attorney right away.
What is a Violation of Probation Hearing?
If you violate your probation terms in any way, you will have to appear for a violation of probation hearing or trial (VOP), where the judge can order you incarcerated. The statute states:
Summons or arrest of defendant under suspended sentence or on probation; commitment without bail; revocation and resentence
a. At any time before the discharge of the defendant or the termination of the period of suspension or probation:
(1) The court may summon the defendant to appear before it or may issue a warrant for his arrest;
(2) A probation officer or peace officer, upon request of the chief probation officer or otherwise having probable cause to believe that the defendant has failed to comply with a requirement imposed as a condition of the order or that he has committed another offense, may arrest him without a warrant;
(3) The court, if there is probable cause to believe that the defendant has committed another offense or if he has been held to answer therefor, may commit him without bail, pending a determination of the charge by the court having jurisdiction thereof;
(4) The court, if satisfied that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or if he has been convicted of another offense, may revoke the suspension or probation and sentence or resentence the defendant, as provided in this section. No revocation of suspension or probation shall be based on failure to pay a fine or make restitution, unless the failure was willful.
b. When the court revokes a suspension or probation, it may impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted.
c. The commencement of a probation revocation proceeding shall toll the probationary period until termination of such proceedings. In the event that the court does not find a violation of probation, this subsection shall not operate to toll the probationary period.
What Happens in a Violation of Probation Hearing?
Your VOP trial will typically happen in two phases. First, the judge needs to determine whether or not you violated your probation. If the judge determines you did violate the terms of your probation, they will determine your sentence for your original offense.
First, the judge will determine whether you violated probation in one of two ways. If you plead guilty, admitting that you violated your probation terms, the judge will immediately move to your sentencing for the original offense. If not, the court can conduct a VOP trial.
At the VOP trial, the county prosecutor will represent the state of New Jersey, but your probation officer will undoubtedly testify. The law permits you to have an attorney at both your VOP trial and sentencing. Both the prosecutor and your attorney can introduce witnesses and evidence. Both parties can also cross-examine witnesses, including you, if you choose to testify. You won't be entitled to a jury; rather, the judge will be the finder of fact at your trial.
A VOP trial is somewhat similar to a regular criminal trial, but the burden of proof is much lower. During a VOP trial, the evidentiary burden is not “beyond a reasonable doubt” but by a preponderance of the evidence. This standard means that the prosecutor must only show that you violated your probation terms by a “preponderance of the evidence” or that it is more likely than not that you did so.
During a VOP trial, unlike a standard trial, hearsay is admissible. Hearsay is a statement by a witness as to something someone else said. In a typical criminal trial, the judge will only admit hearsay if it meets one of seven legally-established exceptions to the hearsay rule.
What Sentence Can I Get if the Judge Says I Violated Probation?
If the judge determines that you did violate your probation during the POV trial, they will typically proceed immediately to the sentencing phase. You will have the chance to address the judge and explain any extenuating or mitigating circumstances and give context to your probation violation.
Then, the judge will sentence you. The judge has several options, including:
- Terminating your probation,
- Continuing your probation,
- Extending the period of your probation,
- Imposing new or additional probation conditions, or
- Resentencing you completely under New Jersey's statutory guidelines.
Your probation officer will usually make a recommendation to the judge for the sentence for violating probation. But the judge will also consider your previous criminal record, the severity of the original charges, and whether your probation violation justifies revoking your probation.
If the judge decides to resentence you, the court isn't bound by the terms of a plea deal your attorney made with the prosecutor during your original trial. If you receive a new sentence, it may include jail or prison time, and you will not receive any “time served” credit for the time you spent on probation.
What Sentence Can I Face in a Violation of Probation Hearing?
If the judge decides to resentence you completely, your sentence will depend on your original offense. New Jersey law classifies indictable offenses, which are New Jersey's version of felonies, as first, second, third, fourth-degree offenses.
- First-Degree Indictable Offense: A first-degree indictable offense has a potential penalty of ten to 20 years in prison.
- Second-Degree Indictable Offense: A second-degree indictable offense has a penalty of five to ten years in prison.
- Third-Degree Indictable Offense: A third-degree indictable offense has a potential penalty of three to five years in prison.
- Fourth-Degree Indictable Offence: A fourth-degree indictable offense has a penalty of up to 18 months in prison.
For first and second-degree offenses, there is a presumptive term of incarceration. That means the judge will sentence you to time in prison unless there are extenuating circumstances. For third and fourth-degree offenses, there is a presumption of a non-custodial sentence. However, your judge can sentence you to jail time at the recommendation of the prosecutor.
Disorderly persons offenses, which are similar to misdemeanors, have lighter penalties and no presumption of jail time.
- Disorderly Persons Offenses: A disorderly persons offense has a maximum penalty of up to six months in jail.
- Petty Disorderly Persons Offenses: A petty disorderly persons offense has a maximum penalty of up to 30 days in jail.
If the court finds you guilty of a probation violation, the judge can sentence you to any term they might have imposed for your original crime. However, the sentence the judge imposes at your POV trial can't be longer than the statutory guidelines for your original crime. For example, if the maximum sentence for your crime was six years in prison and the judge initially sentenced you to four years of probation, they can now sentence you to six years. You won't receive any credit for “time served” for your probationary period.
What if I Don't Agree with the Judge's Decision in the POV?
If you disagree with the judge's determination that you violated your probation, the resulting sentence, or both, you can appeal the decision. You have 45 days to file a Notice of Appeal after your sentencing. However, you should be able to point to some mistake of fact or law that the judge made during your POV trial. Your attorney can help you with this appeal and help you decide if an appeal is necessary.
How Can I Avoid Having my Probation Revoked?
The best way to avoid having a court revoke your probation is to make sure that you know and understand all of your probation conditions. Then make sure that you do your best to comply with those terms. It's also a good idea to establish a good relationship with your probation officer. If you miss an appointment to check-in or accidentally violate your probation, your probation officer is the person who will decide whether or not to report your violation to the court. Having a good relationship with your probation officer might give you a little leeway.
What if my Probation Violation was a Mistake?
We all make mistakes. But the possibility of making an inadvertent error is why it can be so helpful to have a good relationship with your probation officer. Your probation officer may decide to let a minor violation slide. But it's also a good idea to know all of the terms of your probation well. You'll be less likely to accidentally violate the conditions of probation if you know them well.
If your probation officer reports your probation violation, you'll have the opportunity to explain what happened and why during your POV hearing or trial. However, you should never plead guilty to a probation violation without first speaking with your attorney. The judge may choose to continue your probation, overlooking the violation, and giving you a warning. The judge may also decide to increase your probation length or add additional conditions to your probation. However, you can be sure that repeated probation violations, whether mistaken or minor, can land you in prison.
Do I Have Any Rights if Accused of a Probation Violation?
You don't have all of the same rights for the accusation of a probation violation that you did when first accused of a crime. If your probation officer has “reasonable cause” that you violated your probation conditions, they can arrest you without a warrant. “Reasonable cause” means there are enough facts that a reasonably intelligent and prudent person would believe you violated your probation terms.
Moreover, if your probation officer has reasonable cause to believe that you committed another crime, they can also arrest you without a warrant, and the police can hold you without bail. You may then have to face a hearing and trial for a “violation of probation” or VOP. However, you will have a right to an attorney just as you would in a typical criminal trial.
In a VOP trial, you don't have the right to a jury as you would in a criminal trial. Rather, the judge will be the decider in your case. In some cases, you may even have the same judge that presided over your original trial. At trial, you will have the right to introduce evidence and cross-examine witnesses, but both parties can introduce hearsay evidence. The court only permits hearsay evidence if it falls under one of seven legally-allowable exceptions in a trial.
Finally, the burden of proof in a POV trial is much lower than that of a trial. The prosecutor in your POV trial need only prove you violated probation by a “preponderance of the evidence,” meaning it's more likely than not that you violated probation. In a trial, the prosecution must prove each element of their case “beyond a reasonable doubt.”
What if I Violate Special Probation for a Drug Offense?
In New Jersey, some crimes have a mandatory minimum incarceration period, and the law does not permit parole during that period. But under New Jersey law, the court can still sentence a defendant convicted of one of these crimes to special probation upon the motion of an attorney if the defendant needs drug or alcohol treatment. See N.J.S.A. 2C:35-14(a) (2013).
For some specific drug offenses in New Jersey, the law also creates a presumption of a sentence of “special probation” even without a motion or request. If you commit a drug offense in New Jersey and the court believes you need treatment, the judge can sentence you to special probation. The judge can sentence you to special probation even if your crime is a first or second-degree indictable offense that carries a presumption of incarceration.
As part of your special probation, you have mandatory probation conditions, including:
- Entering a treatment facility,
- Completing the program,
- Submitting to random drug testing,
- Contributing to the cost of your treatment,
- Paying all the applicable fines, fees, and restitution, and
- Complying with any additional terms of your probation.
See N.J.S.A. 2C:35-14.
If a court decides that you violated your special probation, the court can revoke it, just as it can for any probation violation. However, the law in New Jersey mandates that the court must revoke your special probation after a second or subsequent “violation of probation” unless the judge finds you are highly likely to complete your treatment program. You and your attorney will also have to convince the judge that you don't pose a danger to the community. The court will also consider the nature and seriousness of your probation violation.
The applicable statute states:
Upon a second or subsequent violation of any term or condition of the special probation authorized by this section or of any requirements of the course of treatment, the court shall, subject only to the provisions of subsection g. of this section, permanently revoke the person's special probation unless the court finds on the record that there is a substantial likelihood that the person will successfully complete the treatment program if permitted to continue on special probation, and the court is clearly convinced, considering the nature and seriousness of the violations, that no danger to the community will result from permitting the person to continue on special probation pursuant to this section. The court's determination to permit the person to continue on special probation following a second or subsequent violation pursuant to this paragraph may be appealed by the prosecution.
N.J.S.A. 2C:35-14(f)(2) (2013)(emphasis added). If the judge decides to continue your special probation after a second or subsequent violation, the prosecutor can and probably will appeal the decision. It's very difficult to convince a judge to continue special probation after multiple probation violations.
How Can a Criminal Defense Attorney Help in a Probation Violation Case?
If the police or your probation officer arrest you for a probation violation, you should immediately call an experienced criminal defense attorney. The police will want to question you, just as they would for any arrest. Moreover, your probation officer may question you as well, playing on your existing relationship to try to get you to admit to something you didn't do or something you did. Just with any arrest, what you say will be used against you. But you are also entitled to remain silent, even if your arrest is for a probation violation and not necessarily a new crime. You are also entitled to consult with an attorney.
An experienced criminal lawyer can:
- Act as an Intermediary
When you talk to your attorney, the conversation is confidential. Your attorney can listen to your story and act as an intermediary, discussing your options with the police and a prosecutor without putting you in jeopardy. If there was a misunderstanding, your attorney can work to clear that up, discussing what happened with your probation officer and the police.
- Gather Evidence
The prosecutor and police aren't going to look for evidence that you're innocent of a probation violation. Your attorney can continue to investigate while you're in jail.
- Represent you in court
It can be difficult to handle a violation of probation hearing and trial on your own. While the court will allow hearsay evidence, that does not mean that a POV trial is something you can wing on your own. An experienced criminal defense attorney will have the litigation experience and court know-how to more effectively represent you in court.
New Jersey Probation Violation Attorney
If you face a hearing or trial for an alleged probation violation, you need an experienced criminal defense attorney immediately. Judges are typically not lenient with those accused of violating probation terms, and you need someone who will fight for your side. Attorney Joseph D. Lento is an experienced criminal defense attorney who has represented people accused of probation violations for many years. Contact the Lento Law Firm today at (888) 535-3686 for a consultation.