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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
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Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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my husband violated his probation in montgomery county texas

Customer Question

my husband violated his probation in montgomery county texas by driving while his license is suspended. he was not taken to jail, only ticketed. he has a probation visit tomorrow and does not know if he should say something. the suspension is a condition of his probation so obviously this will be a violation. this is the first and only offense agaist his probation. he is on misdemeanor probation for 2 consecutive dwi's for 18 months and has completed 4 months. What should we expect? Can he be taken into custody tomorrow when he goes to his probation officer? Can he be revoked for his first violation? What action should we take?
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 3 years ago.
Hello JACUSTOMER,

While it's always difficult to second guess probation and while this will certainly make his probation officer unhappy, this is usually not the kind of offense that would lead to an outright revocation of probation. It is also unlikely that if this just happened he will be taken in when he visits his PO. First of all, he hasn't pled guilty yet. Secondly, the police officer did not pull him in but left him at liberty despite his being on probation. And finally, it takes time to process the violation. It has to be written up and approved by supervisors, etc. It's also possible that his probation officer has not gotten the news of this yet.

As your husband certainly knows, he is required to tell his PO about any new contact with the law. If he fails to disclose it, that in and of itself will be a violation of his probation when they find out, which they invariably will. Nobody completes probation without getting their raps run to make sure there were no new arrests and POs also make random checks. Also prosecutors frequently reach out and notify probation when the case is assigned and they spot the issue.

There are many sanctions which probation can impose for a violation. They have a whole arsenal of them at their disposal, ranging from a wrist slap (more intensive supervision, more reporting requirements) on the one extreme to revoking probation outright on the other. What they will do in your husband's case will depend on many factors, such as the reason for the violation in the first place, how he gets along with his probation officer, whether he's been in good over all compliance with the terms of his probation before the violation or whether he's given them trouble, the history and background of both the underlying case and the new one and how much time he still owes the department of probation. These aren't all of the measuring sticks that will help probation to decide how to handle him, but you get the picture..

If probation decides to wash their hands of him and revoke probation altogether, they usually will make a recommendation to the judge about how much time they want him to do. The potential time he could face on the new matter if he's convicted might influence their decision, along with the strength of the state's case against him (from the state point of view) and how much time he still owes to probation. Although the judge generally gives probation's opinion a great deal of deference, because they have worked with a defendant far more closely than a judge, the judge is not bound by probation's decision. If probation is revoked, the judge has the power to resentence the defendant to an appropriate jail alternative defined by the state's sentencing law for the crime he originally pled to.

So there are too many variables for an expert here to guess at. Your husband should have a lawyer on the new case when he comes before the judge and may have a lawyer still on his case on the old one. Either one could actually speak to probation and get an idea of what their recommendation is likely to be.

Good luck.

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