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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 30393
Experience:  Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
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My son is on probation,has done good but one thing happened.

Customer Question

My son is on probation,has done good but one thing happened. His friend waas in a fight with his girl so my son took him to his house to get his stuff. The girl pourd soup in the boyfriends lap in my sons ar they both got out my son was trying to get it out of car she said my son spit on her but it was the boyfriend.. there was a warent put out for my son he didnt know until he got pulled over. Now its in the courts they said she didnt press the charges the state did. My son wants to take it to trial. But the girl dont even live around here any more and there all friends again. If shes not there can they do anything to him
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Lucy, Esq. replied 2 years ago.

My name is ***** ***** I'd be happy to answer your questions today. I'm sorry to hear that this happened.
There are two separate issues here - one is the criminal charge for assault, and the other is the fact that he was on probation when this happened. To prove assault, the government needs to establish beyond a reasonable doubt that your son spit on this girl. That's going to require a witness to what happened. The police officer cannot testify as to what the girl told him, because that's hearsay. His friend could testify that he was there and as to what happened, and so could your son, if he chose. But assuming she didn't go to the hospital (and why would she), unless your son admitted to spitting on the girl, there's no evidence.
A person who fails to appear after receiving a subpoena is in contempt of court. She could face criminal penalties for ignoring the subpoena (if they send one - they may not if they don't realize she doesn't intend to appear).
If your son is found guilty, then he will also be charged with a probation violation. If he accepts a plea, that's ALSO a probation violation, so he needs to be aware of that - it's usually a good idea to take the case to trial if you're charged with something while on probation.
The standard of proof in a probation violation is lower than criminal court. So it IS possible that they'll hold a violation hearing even if he's found not guilty on the charges. That's something to be aware of. But at the hearing, again, they need some evidence that your son spit on the girl. That means the state needs a witness. Again, they can subpoena her. If she fails to appear for the criminal hearing, they're more likely to subpoena her for the violation hearing.
If your son had a lawyer for whatever he's on probation for, it's a good idea to call and talk to that person. If not, he may want to consider hiring a local attorney to help both with the assault charges and the likely probation violation that could arise. Sometimes, too, it can help to talk to the probation officer. If that person is on your son's side, it can go a long way in the hearing, because the judge will often accept the officer's recommendations regarding whether punishment is needed.
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Customer: replied 2 years ago.
Ok they both moved away far they wont come back. We dont have money for a lawyer. I dont believe they r going to violate him on probation we r going on 2 1/2month i think after 120 they cant. But wecwere thinking to take it to trial.ok so i wont be charged more than the 36.correct
Expert:  Lucy, Esq. replied 2 years ago.
No, you won't be charged more than the $36 unless you choose to return and ask another question.
Your son could subpoena them to come testify on his behalf if they still live in the same state. He could also ask if his friend would submit an affidavit, which might help at the probation violation hearing. But if it's just about the assault and they're not going to violate him, the state can't prove beyond a reasonable doubt that he spit on her without a witness.
Please rate my answer positively to ensure I get credit for the time I spend helping. If you are on a mobile device, you may need to scroll to the right. Thank you.