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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 26838
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I am in a custody battle my wife was on probation for being

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I am in a custody battle my wife was on probation for being arrested 2/14/2013 domestic violence against me, dropped to disorderly conduct, she was not allowed to drink but did, so she violated whats the best and worst sentence she could receive?


Thanks for requesting me.

When someone violates probation, the worst case scenario would be that probation wishes to wash its hands of her and recommend an incarceratory sentence. Then, the judge would be allowed to resentence her to any amount of time that the statute would allow for the plea that she took.

In this case, the maximum possible penalty for a disorderly conduct is 90 days in jail and a $500 fine. So that's the worst that could possibly happen to her.

As for the best, XXXXX XXXXX may face a technical violation. That is, what she did was not against the law but she broke one of probation's rules. If they violate your wife, probation holds all of the cards, and they can be very difficult to second guess. They have a whole arsenal of possible sanctions available to them, ranging from a wrist slap (more intensive supervision, more reporting requirements, which is quite possible on a technical violation such as this one) on the one extreme to house arrest or revoking probation outright on the other.

What they will do in this case will depend on many factors, such as your wife's background and history and the facts and circumstances of the underlying case, how well she's been getting along with his probation officer, whether she's been in good over all compliance with the terms of his probation before the violation or whether she's given them trouble before (and how much of it). These aren't all of the measuring sticks that will help probation to decide how to handle her, but you get the picture. It will all come down to whether probation is still willing to work with your wife or whether they are just plain tired of her not getting the message.

If probation decides to wash their hands of her and revoke probation altogether, they will usually make a recommendation to the judge about how much time they want her to do. Although the judge generally gives probation's opinion a great deal of deference, because probation has worked with a defendant far more closely than a judge, the judge is not bound by probation's decision. The judge has the power to resentence a defendant to any appropriate jail alternative up to the maximum 90 days the law allows. But they also have the power to restore her to probation even over probation's objection.

So there a lot of variables which presently I can only guess at. But she'll be entitled to a hearing, so if she already has a lawyer on his underlying case she needs to contact him so that she has representation. That way if probation and the DA are asking for jail, someone can make a good argument for house arrest.

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Customer: replied 3 years ago.

i want her to go to jail or house arrest she has 2 prior dui on record and this case where she violated do i have any say?

Hi Brian,

You can report her to the department of probation and let them know that your wife is still drinking and make your feelings known to them. From there, however, it's probation's call as to whether or not they will want her incarcerated.

If she has a hearing on the violation, you could contact the prosecutor and tell him or her how you feel and ask that your feelings about this be conveyed to the judge. And, of course, if you're in the process of divorce/custody litigation, you may get more mileage out of this offense by bringing it to the attention of the Family Court judge than you may get from probation.

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