Orange County Criminal Defense Lawyer Blog
So you find yourself on probation after working out a plea bargain with the District Attorney. Your lawyer and you have entered into a deal where you will spend 3 years on formal supervised probation. What does this really mean to you though?
Being on probation is when you are conditionally released back into the community instead of going to jail or prison for the maximum term possible for whatever crime you committed. Let’s say you plead guilty to a crime that has a maximum possible sentence of 3 years in custody. Instead of serving those 3 years in custody and being done with your obligations, you are put on put on probation. You are released into the community but the possibility of doing the 3 years in custody hangs over you if you don’t meet all the obligations of being on probation.
One common requirement of someone on probation is that the probationer not possess firearms or illegal drugs. This seems pretty clear. If you are on probation you shouldn’t have in your possession guns or illegal drugs. However, recently in the case of People v Hall (2017 D.A.R. 1235 February 9, 2017) the question was does the probationer have to be in knowing possession.
For example, what happens when someone is on probation, and is driving his car with buddies in the backseat along with their backpacks and inside one of the backpacks there are guns and illegal drugs? Is the probationer liable for that? After all, the probationer has guns and drugs in his car. He’s in possession of those items isn’t he? What if the guns and drugs were in the trunk?
The test for being in violation of probation for possession of guns and illegal drugs is that the probationer has to be in knowing possession. He has to know that the guns and drugs are in the backpacks or in the trunk. Just because the illegal items are in a probationer’s technical possession by being in his car it doesn’t mean he knew they were there. Of course, many times it will be obvious when the possession is knowing. If the guns and drugs are in plain view of everyone in car or on the probationer’s person it is very difficult to argue that he wasn’t aware of their presence.
Clearly, the standards are much higher for someone on probation. Care and caution have to be exercised to not allow others to put the probationer in a bad situation. The standard of proof is low, preponderance of the evidence (more than 50%) and the judge, not a jury, decides if the violation of probation occurred.
Probation violations can be contested and when violations occur there are good reasons to hire a criminal defense lawyer to assist. Sentences can be harsh after violations of probation and an attorney can lessen the punishment doled out as well as contest whether a violation occurred at all. Don’t go into the probation violation court without one!