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CrimDefense, CriminalDefenseAtty
Category: Criminal Law
Satisfied Customers: 23465
Experience:  9+ years defending Misdemeanor and Felony cases.
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What is a surrender hearing My wife was convicted of drug

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What is a surrender hearing? My wife was convicted of drug possession last summer, given probation for 2 years, but has failed many random urine tests since. So the judge ordered a stay in detox, but she left in 2 days. Then in May she overdosed and when EMS and the police responded a 51A child abuse case was filed against her by our state agency. She managed to keep this from her PO until last week. Last Monday, as the father I filed and won a restraining order as well as a 6 month custody of our 8 month old baby (no visitation grated at all to the mother). Now it's all coming crashing down and she has a 'surrender hearing' for this Monday with I guess just the judge and her probation may even be the same judge. Whats going to happen now (jail time, long term rehab) and what is a surrender hearing?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  CrimDefense replied 5 years ago.

Hi and Welcome to Just Answer. I will be the expert that will be helping you today. I look forward to helping you solve your problem.

"Probation surrender" refers to a violation of probation. The state "surrenders" a probationer in violation of the terms of his or her probation, in a series of legal proceedings and hearings.

Probation may be violated by: getting arrested, failing to update personal information, failing to check in with the probation officer, failing to pass a drug or alcohol test, failing to pay the probation fee, skipping out on rehabilitation programs, and, in short, getting into any kind of trouble.

The first step in the probation surrender process is receiving a letter from the probation department clarifying the alleged violations and scheduling the probation surrender hearing. The hearing should be scheduled within a reasonable time after the notice is served. In addition, a preliminary probation detention hearing may be scheduled to place a dangerous probationer in jail until the final probation surrender hearing takes place.

During the probation surrender hearing, the probationer has the right to a defense lawyer. The prosecutor must show within a "preponderance of the evidence," which is a "more likely than not" standard unusually low for a criminal proceeding, that the probation was violated. The probation detention hearing has an even lower standard of proof: mere "probable cause" to believe that probation was violated.

Also, the rules of evidence are very light in probation surrender hearings. For example, prosecutors representing the probation department may bring in "hearsay" evidence and unlawfully seized evidence. Sentencing during a probation surrender hearing may include: incarceration, longer probation, electronic monitoring, house arrest, additional community service, loss of drivers' license, additional fines, and anything that the judge believes will be effective and reasonable in deterring future criminal behavior.

Customer: replied 5 years ago.
Thanks.. I need clarification as you mentioned a "probation detention hearing".. does that happen before or after the surrender hearing? Is there anything that will follow this, or is this hearing where sentencing happens?
And I am not sure what you are getting at by saying "the rules of evidence are very light".. does that mean these hearings favor the prosecution or the defense? Can anyone attend these or are they closed to the public?
Expert:  CrimDefense replied 5 years ago.
The hearing is open to the public, anyone can attend. The issue could be resolved at the hearing and the court could impose sentence. However, if she wants to fight this instead of resolving it, there could be another hearing.
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