If you are accused of violating your probation, then your liberty is at stake. An attorney can help you be heard before the court at the probation revocation hearing to show that you did not willfully violate the conditions of your probation. If you did violate the terms of your probation, then your attorney can help you show that the circumstances of the violation require the termination of probation without further punishment.
In many of these cases, your attorney can help you come into compliance with any remaining terms of the probation before the violation of probation or revocaiton hearing occurs. Any criminal defense attorney in Las Vegas, NV, will tell you that coming into compliance late is much better than not coming into compliance at all.
If you believe that probation revocation proceedings will be commenced against you, then contact an experienced criminal defense attorney at Gallo Law Office to discuss your case today. James C. Gallo represents clients in felony and misdemeanor violation of probation hearings throughout Clark County including Municipal Courts of Las Vegas, North Las Vegas, Henderson or Boulder City, the Henderson Justice Court or the Clark County Courts include the Las Vegas Township Justice Court or Eighth Judicial District Court.
James C. Gallo is also experienced in helping clients modify the terms of their probation or obtain an early termination of probation. Call (702) 385-3131 today for a free consultation to discuss your case either over the phone or during a office consultation.
Definition of "Probation" in Nevada
Probation is a court ordered sanction that allows a person to remain in the community under the supervision of a probation officer. The conditions that can be imposed by the court as a condition of probation can vary but might include the payment of fines, restitution, community service, classes or educational programs, counseling, drug testing and other sanctions.
The court can impose probation in misdemeanor cases, juvenile cases and felony cases. Generally, if the probationer violates the terms of probation then the court can them impose any sentence that it could have originally sentences which might include incarceration.
Different Ways of Violating Probation in Nevada
Because the conditions of probation are numerous, Nevada law provides for many different ways in which probation can be violated. Generally, probation violations fall into one of two different categories - technical violations and substantive violations.
Technical violations generally occur when the probation does not complete one of the conditions of probation such as and of the following:
- failing to report to probation as required by the probation officer (also called "absconding");
- failing to submit to counseling or evaluation;
- failing to successfully complete counseling or follow up treatment;
- failing to submit to a random urine drug test;
- having a chemical or controlled substance found as a result of urine testing;
- violating the terms of house arrest or electronic monitoring; or
- failing to pay fines, costs, restitution or other financial requirements.
Substantive violations of probation in Nevada generally include committing a criminal offense or being subjected to a new arrest on either misdemeanor or felony charges.
Nevada Statutes on Probation and Probation Revocation Proceedings
NRS 176A.400(1) permits the district court to “fix the terms and conditions” of probation, including those identified in the statute, “without limitation.” Pursuant to NRS 176A.450(1) “the court may impose, and may at any time modify, any conditions of probation.”
When the court grants probation, the sentence is not imposed. See NRS 176A.100(l)(b) (providing that “the court shall suspend the execution of the sentence imposed and grant probation”).
If the terms of probation are violated, then under NRS 176A.630(4), the court may then “[c]ause the sentence imposed to be executed”).
Probation Revocation Hearing in Las Vegas, Clark County, NV
In many criminal cases, the person accused of the crime will enter a plea in exchange for a sentence that involves probation. When you agree to probation you must carefully complete each condition and comply with all technical requirements. If you do not comply then the probation officer can accuse you of violation probation and start the process for a probation revocation hearing.
At the hearing, you are entitled to have an attorney representing you. The attorney will often help you come into compliance with any outstanding conditions before the hearing, if possible. The attorney will help you decide whether to "deny" the allegation of violating your probation or "admit" to the violation. If you deny the allegation then a revocation probation hearing will be scheduled. If you admit the violation, then your attorney is allowed to present any mitigating factors that should be taken into consideration at a sentencing hearing.
In a misdemeanor or gross misdemeanor case, the court can generally impose probation that can last for up to three years. For a felony case, the court can impose probation for up to five years. For certain types of crimes, the court is not permitted to impose probation. Those crimes include murder, first-degree kidnapping, lewdness with a child, attempted sexual assault of a child under 16 or sexual assault.
After the violation occurs, your probation officer can start the process by requesting that the court issues a bench warrant for your arrest or a summons that requires you to appear in court at a certain time or place. On many of the arrest warrants issued for violation of probation you are not able to post bail or bond and must remain in custody until the case is decided. In some cases, your attorney can file a motion to quash the warrant so that you do not have to go into custody if the court decides to set aside the warrant.
At a probation revocation hearing, the issues are decided by the judge and you are not entitled to a jury. The court also uses a lower standard of deciding whether the violation occurred. At a probation revocation hearing, the standard is "by a preponderance of the evidence" instead of the higher standard of "beyond all reasonable doubt." At the probation revocation hearing you have a right to testify, present witnesses and other evidence, and be heard on why the violation did not occur.
If the court finds that you violated probation then the court can impose any sentence that it could have originally imposed up to the statuary maximum. In fashioning the sentence, the court will consider the number of prior violations, any prior criminal record, whether any conditions of probation were satisfied, and the recommendations of the probation officer and the Nevada Department of Parole and Probation.
Revocation of Probation for Inability to Pay
The Court should not violate and revoke probation if the only violation results from an inability to pay a fine or restitution. In Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), the criminal defendant had been convicted of and fined for certain traffic violations. Because of his indigency, however, he was unable to pay the fines and was therefore incarcerated under provisions of state law. The U. S. Supreme Court, in finding such imprisonment to be violative of equal protection, stated that “ ‘. . . the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.' ” Id. at 398, 91 S.Ct. at 671, quoting Morris v. Schoonfield, 399 U.S. 508, 509, 90 S.Ct. 2232, 26 L.Ed.2d 773 (1970) (White, J., concurring).
This rule applies to both fines and restitution in violation of probation cases in Nevada. It also applies not just at the time of the underlying sentence but also at the time of any revocation of probation proceeding if imprisonment results from the defendant's indigency.
“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). The Court can, however, constitutionally imprison “a defendant with the means to pay a fine who refuses or neglects to do so.” Tate v. Short, supra 401 U.S. at 400, 91 S.Ct. at 672.
The State of Nevada generally has the power, should it choose to exercise it, to promote its “interest in deterring unlawful conduct and in enforcing its penal laws through fines as well as jail sentences . . . ,” Morris v. Schoonfield, supra, 399 U.S. at 509, 90 S.Ct. at 2233 (White, J., concurring), by incarcerating a criminal defendant who has the ability to pay a fine or restitution as a condition while on probation but chooses to spend his money elsewhere. See Burke v. State, 96 Nev. 449, 451-52, 611 P.2d 203, 204-05 (1980).
Additional Resources on Violation of Probation in Las Vegas, NV
Chapter 176A - Probation and Suspension of Sentence in Nevada - Visit the website of the Nevada Legislature to learn more about Chapter 176A for probation and suspension of the sentence including the definitions, authority of the court and limitations, procedures, residential confinement after violation, and residential centers for supervision of probationers.
Probation in the State of Nevada - Visit the website for the division of parole and probation of the Nevada Department of Public Safety to learn more about how the court services division conducts Pre-Sentence Investigations to assist District Courts in making informed sentencing decisions. The department also prepares violation reports to address of conduct of probationers.
Nevada Probation OfficeGoogle+ page for the Nevada Probation Office
300 S Las Vegas Blvd #1200
Las Vegas, NV
(702) 527-7300
Probation for Juveniles in Clark County - Visit the website for Clark County to learn more about the Juvenile Justice Services department and the probation intake unit. The Juvenile Justice Services division supervises juveniles while serving probation in Clark County, Nevada.
Finding an Aggressive and Affordable Attorney for Probation Revocation Hearings in Las Vegas, NV
If you suspect that your probation officer will allege that you violated your misdemeanor or felony probation, then contact an experienced criminal defense attorney in Las Vegas, Clark County, Nevada, as soon as possible. Our office can help you come into compliance with any outstanding technical terms or conditions. We can find information about any bench warrant or summons issued by the court.
Don't just wait to be arrested on a warrant for violation of probation, instead, contact an attorney who can help you resolve your case under the best possible terms. James C. Gallo is experienced in representing clients throughout all of Clark County, including the cities of Las Vegas, North Las Vegas, Henderson, Boulder City and Mesquite, Nevada. Call him today at (702) 385-3131.