The Harsh Realities of Being on Probation

When a person is convicted of either a gross misdemeanor or misdemeanor in Washington State he is generally put on probation with the court. The probationary period can be up to two – five years depending on the type of crime alleged. For example, a conviction for theft usually carries with it a two year probationary period; a conviction for driving under the influence usually carries with it a five year probationary period. Often the court will suspend (or defer) a period of the jail sentence and a portion of the fine, and if any “condition of probation” is not followed, the court will revoke a portion (if not all) of the jail time and fine. In essence, the court uses the “carrot and stick” approach. That is to say, if the person does what the court has mandated over the course of probation (usually what the prosecutor and the person’s Seattle criminal lawyer have recommended to the court), then he will not have to do any more jail time or pay any more of a fine than that which was initially imposed by the court. Conversely, if the person fails to follow the court’s mandates, that person can (and often will) be ordered to do more jail time, and in certain circumstances pay more of the fine, up to the maximum that can be imposed by the court (for gross misdemeanors that is 365 days in jail and a $5K fine; for misdemeanors that is 90 days in jail and a $1K fine).

When a person is alleged to have violated conditions of probation, the court overseeing the case will set a review hearing to determine if the person either admits or denies the allegations. If the allegations are denied, the court will set a revocation hearing. Before a court can revoke jail time and/or impose a fine, it is obligated to follow due process procedures. In other words, a person must be given an opportunity to contest the allegations being brought against him. The standard of proof at such a hearing is a “preponderance of the evidence”; this standard is much lower than that of “beyond a reasonable doubt”.

Under Washington State law, a person that is under a conditional suspended sentence has a very limited liberty interest; that person is only entitled to minimal due process rights. Morrissey v. Brewer, 92 S.Ct. 2593 (1972); Gagnon V. Scarpelli, 93 S.Ct. 1756 (1973). The hearing process is permitted to be flexible enough for the trial court to consider evidence that would not otherwise meet the usual evidentiary requirements that apply to criminal trials and proceedings; in fact, at a revocation hearing the right to confront and/or cross examine witnesses is not absolute, and is not required to be afforded in every instance. Because of this, Washington State courts can often lawfully limit a person’s right to confront evidence and witnesses being brought against him by admitting hearsay (written, non-certified) evidence in probation revocation proceedings in lieu of live testimony. State v. Smith, 13 Wash.App. 859 (1975). So long as the hearsay evidence can be shown to be “demonstrably/ clearly” reliable, and it would be expensive and difficult to procure witnesses, the right to confront witnesses can be lawfully denied by the court. This in turn may make it significantly easier for the prosecutor to prove its allegations that a person has violated conditions of probation, and to have the court revoke (impose) jail and/or fine beyond that originally imposed by the court.

Once a person has been put on a conditional suspended sentence, he must be vigilant in his efforts to comport with the court’s mandates. More jail time and/or more costs can be imposed for failure to comply with probationary conditions; the standard of proof in establishing a violation is much lower than the standard of proof required to prove that an actual crime was committed. If you or a loved one is facing an allegation of a probation violation in Western Washington, it is imperative that a Seattle criminal attorney be retained as soon as possible to ensure all personal, professional and financial interests are protected. Seattle criminal defense lawyers Greg Schwesinger and Saad Qadri of SQ Attorneys represent those individuals criminally charged in Western Washington. The Seattle criminal attorneys of SQ Attorneys are experienced and proven negotiators that make a world of difference for those accused of committing a crime. SQ Attorneys is a team of seasoned Seattle criminal lawyers that work tireless to achieve the best possible outcome for each and every client they have the honor of representing. Arrested for committing a crime in Western Washington? Facing a probation violation allegation in Western Washington? Call The Criminal Defense Team of SQ Attorneys at (206) 441-0900 or (425) 998-8384 for an initial free consultation.

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10.0Gregory Wayne Schwesinger
10.0Saad Qamer Qadri