A.R.S. § 13-901: Probation

As an alternative to jail or prison time, judges in Arizona can sentence individuals to serve probation time. Like all other aspects of the criminal justice system, the Covid-19 pandemic has affected the way probation violations are handled in Arizona.

Basics of Probation

Terms of probation will be determined on a case-by-case basis and various factors will affect the time and conditions. The nature of the offense, the criminal history of the individual, and the charges against are the most important factors in determining probation. Certain crimes, such as crimes defined as violent and dangerous crimes against children, are not eligible for probation. In most cases, probation will be eligible and as long as the person abides by the terms of probation, the sentence will be much shorter.

There are three types of probation: unsupervised, supervised, and intensive probation. Unsupervised probation is the least burdensome and mainly just requires the individual to remain law-abiding during the probation term. Generally, there are not any check-ins or required visits. Supervised probation is the most common form given and requires the individual to check-in with a probation officer and will usually require additional drug or alcohol testing and a form of counseling as well. Intensive probation, the heaviest penalty, requires “a program established pursuant to this chapter of highly structured and closely supervised probation which emphasizes the payment of restitution” per Arizona Statute § 13-913.

How to Violate Probation

Intensive probation requires constant monitoring and checking in between the individual and the probation officer. Supervised Probation will not be as intense but will require the individual to check in with the probation officer and keep them updated on work or schooling status. Most terms will be specific to each case and criminal charge and will vary between different individuals. However, failure to comply with any term of probation can result in a probation violation.

Most probation violations occur when a person on probation commits a new crime, fails a drug or alcohol test or fails to complete the test, fails to contact the probation officer at the designated times, fails to make any payments towards the fines and fees or restitution, or does not comply with any other term of probation set by the court. Any violation of any term can result in revocation of probation.

What Happens After a Probation Violation?

Once an individual has violated a term of probation, the probation officer or the State can file what is called a “Petition to Revoke Probation.” The Arizona Rules of Criminal Procedure lay out the process for probation violations. Rule 27.6 states:

The probation officer or the State may petition the court to revoke probation if there is reasonable cause to believe that a probationer has violated a written condition or regulation of probation. After a petition to revoke is filed, the court may issue a summons directing the probationer to appear on a specified date for a revocation hearing, or it may issue a warrant for the probationer's arrest.

So, any probation violation can lead to the arrest of the individual. The revocation arraignment becomes its own mini trial for the violation and the State or probation officer will present evidence to show the individual violated probation. However, in a revocation arraignment the State can use hearsay against the person and will only need to prove the violation with the preponderance of the evidence and not with the beyond reasonable doubt standard. This makes it easier to find the individual guilty of violating probation.

If the court finds no violation, the individual will continue on the same probation terms. However, if found guilty, the court will decide to revoke, modify, or continue the person’s probation. If the court revokes probation the individual will most likely be remanded to serve jail or prison time. A modification will result in additional terms of probation and continuing probation will reinstate the individual to the same terms as before. The type of violation will most likely affect the disposition the court gives to the individual.

How to Violate Probation

 Intensive probation requires constant monitoring and checking in between the individual and the probation officer. Supervised Probation will not be as intense but will require the individual to check in with the probation officer and keep them updated on work or schooling status. Most terms will be specific to each case and criminal charge and will vary between different individuals. However, failure to comply with any term of probation can result in a probation violation.

Most probation violations occur when a person on probation commits a new crime, fails a drug or alcohol test or fails to complete the test, fails to contact the probation officer at the designated times, fails to make any payments towards the fines and fees or restitution, or does not comply with any other term of probation set by the court. Any violation of any term can result in revocation of probation.

How Has Covid-19 Affected Probation Violations?

While each county may differ, it appears the general consensus is that probation violations are not among the most important hearings for a court to hold at this time. Because courts have been closed for some time, it is likely that courts will hold resources and court for those matters most important, such as court hearings and trial dates. Maricopa County Superior Court released a statement stating in-custody probation hearings will continue but all out-of-custody hearings will be continued. So, if an individual is not arrested because of a probation violation there hearing will have been continued to a later date.

Nationally and locally, different groups have argued for reducing jail populations during the coronavirus pandemic. A Prison Policy Initiative article details the efforts across the nation different agencies are making to reduce the prison population. AZ Family reported that Maricopa County reduced its jail numbers from 7,500 inmates to 5,306 inmates since the coronavirus outbreak. The Maricopa County Attorney’s Office also reported a decrease in the number cases that were charged an efforts to not hold offenders that are not dangerous. Given the County’s reaction to current inmates, it is unlikely that any probation violation that did not rise from a new crime will result in any jail time. Technical violations such as missing a drug test, failing to communicate with the probation officer, or other like offenses will most likely result in the offender being continued on probation. However, the probationer should do all that is possible to ensure no violation as the court still has the power to revoke probation should it choose to do so.

Recent outcry has occurred after a man in Navajo County has been imprisoned for more than a year over a probation violation that occurred in 2009. AZ Central reported that Neko Wilson has hypertension and asthma and is at a higher risk of contracting the coronavirus. Proponents for Mr. Wilson argue that being held in jail with his health risks for a probation violation is inhumane and should be released. AZ Central also reported that a federal law suit has been filed in the District Court against Maricopa County for treatment of inmates during Covid-19. One of those inmates included in the suit is a person that was being held for a probation violation.

Most counties agree that probation violations that do not come from a new criminal charge are not the most dangerous and will not seek imprisonment. Because of the potential consequences for a probation violation, it is still important to have an experience attorney to help through the process. At Mesa Dui Lawyer, a team of dedicated and experienced lawyers can help fight any petition to revoke probation and represent you in the probation hearings – call today.