Probation violations comprise about a quarter of all criminal cases in Tennessee state courts. This is certainly true in Nashville. These cases begin with a probation officer swearing out a warrant and taking it to the judge for a signature. The warrant may be served on the defendant by the probation officer or any peace officer of the county in which the probationer is found.
The defendant is entitled to bond. The bond amount is usually inscribed on the warrant but some warrants specify “open court” bonds. This means the defendant will be locked up until he appears in court before the judge. Your lawyer may be able to short circuit this process by getting an agreement with the assistant district attorney and asking the judge to approve the bond amount. For this reason it is best to retain a criminal defense lawyer to assist in the surrendering process.
Grounds for Probation Violation:
Probation violation allegations generally fall into three categories. New criminal charges, positive drug screens or absconding. Absconding is not reporting to the probation officer. In the case of new criminal charges action is often held in abeyance until the seriousness of the new charges is determined.
In the case of a dirty drug screen the State may provide a written affidavit by the certifying laboratory technician attesting to the regularity of the testing procedure. See Tenn. Code Ann. s 40-35-311(c)(1)(A) through (G). The prosecution must provide the defense with a copy of the report five days prior to any hearing. The defense attorney may still object to the report and seek live testimony from the technician at the probation violation hearing.
The judge may not revoke probation of the basis of one instance of a “technical violation.” A “technical violation” is an act that violates the terms or conditions of probation but does NOT constitute a new felony or class A misdemeanor, or zero tolerance violation as defined by the Department of Corrections, or lastly, absconding.
If, after an evidentiary hearing, the judge finds, by a preponderance of the evidence that the defendant engaged in a second or subsequent technical violation, the judge may temporarily revoke probation and impose a term of incarceration not to exceed:
(i) 15 days for a first revocation
(ii) 30 days for a second revocation
(iii) 90 days for a third revocation
(iv) The remainder of the sentence for a fourth or subsequent revocation; or
Resentence the defendant for the remainder of the unexpired term to a sentence of probation that includes the condition of participating a community-based alternative to incarceration as provided in Tenn. Code Ann. s 40-35-104(c), such as drug treatment or a day reporting center.
Revocation after finding New Felony or Class A Misdemeanor:
If the judge finds by a preponderance of the evidence that the defendant has committed a new felony or class A misdemeanor, the judge may revoke the probation and place the original sentence into effect. Note: the judge MAY reduce the time by crediting the defendant with the time the defendant successfully served on probation. The defendant has a right to appeal a trial court judge’s decision to revoke. An expedited appeal may be necessary.