WHAT IS PROBATION?
Probation is an alternative to active jail time. It allows the judge to “suspend” the active portion of a sentence and place the defendant on probation for a number of months instead. Unless the defendant’s probation gets revoked during that time, (s)he will never have to serve the active portion of his or her sentence.
HOW DOES PROBATION WORK?
(The nuts & bolts of probation)
If you are facing a possible probationary sentence, you may be curious as to how probation works. Below is a broad overview of the different types of probation and the requirements for each.
COMMON ELEMENTS
There are two elements which are common to all types of probation: (1) a probationary period and (2) a suspended sentence. The probationary period is exactly what it sounds like: the judge will place you on probation for a certain amount of time. For North Carolina misdemeanors, the probationary period is typically 12 to 18 months. For felonies, it is typically 24 to 36 months.
A suspended sentence is active jail time that you have to serve if your probation gets revoked. You don’t have to serve your suspended sentence unless your probation gets revoked during the probationary period. I sometimes tell clients to imagine a piano hanging by ropes above a sidewalk, waiting to come crashing down on an unsuspecting pedestrian. That piano is like your suspended sentence: if your probation gets revoked, your suspended sentence comes crashing down on you. If you complete your probationary period without having your probation revoked, your probation “expires,” and your suspended sentence evaporates into thin air.
HOW CAN YOUR PROBATION BE REVOKED?
In North Carolina, there are three ways your probation can get revoked: (1) a new criminal conviction during the probationary period, (2) repeated technical violations, or (3) absconding. By “a new criminal conviction,” I mean a new misdemeanor or felony conviction. Infractions, like speeding tickets, will not cause your probation to be revoked. Further, your probation also cannot be revoked solely for a class 3 misdemeanor conviction. If you pick up two class 3 misdemeanor convictions, you’re in a legal grey area. Class 2 misdemeanors and above may cause revocation if you are charged with the new offense and your probation officer files a violation before your probation expires.
Consider the following scenario: John Doe is convicted of DWI on June 1, 2018 and is placed on 12 months of supervised probation with a 30-day suspended sentence. Below are a few examples of what might happen if John is convicted of another crime.
Scenario
John is charged with possession of 1 ounce of marijuana on June 5, 2019. He is found guilty on August 8, 2019.
John is charged with possession of ½ ounce of marijuana on April 5, 2019. He is found guilty on May 5, 2019.
John is charged with possession of 1 ounce of marijuana on April 5, 2019. He is found guilty on August 8, 2019.
Outcome and Reason
John’s probation will not be revoked because it expired (June 1, 2019) prior to the date of offense in the marijuana case (June 5, 2019).
John’s probation will not be revoked because possession of ½ ounce of marijuana is a class 3 misdemeanor.
John’s probation will be revoked (provided his probation officer filed a violation) because he was convicted of a class 1 misdemeanor that occurred during his probationary period. This is so even though he was convicted after the date on which his probation was set to expire because the date of offense (April 5) was during his probationary period. He will likely have to do 30 days in jail in addition to whatever punishment is imposed in his possession of marijuana case.
“Absconding,” in layman’s terms, essentially means “going off the grid.” According to Merriam Webster, it means “to evade the legal process of a court by hiding within or secretly leaving its jurisdiction.” In cases where supervised probation is imposed, you are required to keep in contact with your probation officer at all times. If you do not keep in touch with your probation officer, your probation officer may try to find you. If (s)he is unable to do so, (s)he may file a violation for absconding.
Technical violations are any violations other than those for picking up a new criminal offense or absconding. Typically, in response to technical violations, we see “quick dips” (2-3 day jail sentences) in misdemeanor cases and CRVs (“Confinement in Response to Violation” – like a quick dip, but up to 90 days) in felony cases. So, for example, if John Doe submits a urine sample to his misdemeanor probation officer which tests positive for cocaine, his probation officer may ask the judge to impose a quick dip. If John submits two or more additional dirty urine samples to his probation officer, his probation officer may ask the judge to revoke John’s probation. It is fairly uncommon to see probation revocation for repeated technical violations, but it can happen.
WHAT ARE THE DIFFERENT TYPES OF PROBATION?
There are two broad categories of probation: supervised and unsupervised. In the case of unsupervised probation, you do not have a probation officer. From a practical perspective, because you do not have a probation officer, it is unlikely that you would face a violation for absconding. Essentially, you just have to stay out of trouble for the probationary period.
Supervised probation is much more involved. You will be required to attend monthly office visits with your probation officer. Your probation officer may require you to submit a urine sample or submit to a warrantless search of your home at any time and without notice. You will have to pay monthly supervision fees. You cannot leave the state.
There is a subset of supervised probation called “special probation.” In addition to the regular elements of probation (a probationary period and a suspended sentence), there is a “split sentence.” The split is a number of days you have to do in jail, regardless of whether your probation is revoked, in order to complete your probationary period. If you have not served your split by the end of your probationary period, your probation will likely be extended until you finish the split. The split is served at the discretion of your probation officer. In practice, your probation officer will typically work with your schedule to find jail days that work for you. They are typically served in chunks of at least 2 days, and most people opt to serve their splits on weekends.
Consider the following scenario: John Doe is convicted of DWI on June 1, 2018 and is placed on 12 months of special probation with a 30-day suspended sentence and an 8-day split. This means that John will be on supervised probation for 12 months. During those 12 months, John will have to serve 8 days in jail. Most people in John’s situation would opt to serve those 8 days over the course of 4 jail weekends, but depending on John’s life circumstances, he and his probation officer may opt to schedule John’s split in a different way (such as 8 days straight through or two 4-day chunks). If June 1, 2019 rolls around and John has only completed 6 of his 8 days, his probation will likely be extended until he completes the other two.
PARTING THOUGHTS
While probation may seem like an attractive option compared to an active sentence, a short active sentence is a better option for many of my clients facing the possibility of probation, particularly in cases where a split sentence is going to be imposed. The benefit of a short active sentence is that when you’re done, you get out “clean” (i.e. you don’t have a suspended sentence hanging over your head). Personally, if my options were between, for example, (1) 12 months of supervised probation with a 30 day suspended sentence and a 7 day split; and (2) a 12 day active sentence, I would choose the latter. If you find yourself facing charges that could result in probation, I recommend consulting with an experienced criminal defense lawyer about the specifics of your case.
