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Probation Violations

Probation is a conditional sentence that allows a defendant to remain in the community instead of serving time in jail or prison. However, violating probation can lead to serious consequences, including incarceration. 

 

The Probation Office has a significant role in not only reporting the violations, but also, Probation Officers recommend the terms of plea agreements, including sentencing.  In most cases, the Judge adopts the sentencing recommendations of the probation officers. The sentences range from a simple return to probation to incarceration for the remaining time left on probation.  While I was a state prosecutor, I was in lead attorney in all probation violations.

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New Mexico probation laws are primarily governed by New Mexico Statutes Annotated (NMSA) § 31-20-5 through § 31-21-15 for adult probation, local rules of criminal procedure, and Case law.  There are two types of probation:

         Technical Violations:

  • Missing appointments with a probation officer

  • Failing drug or alcohol tests

  • Not completing community service

  • Failing to pay fines, fees, or restitution

 

Substantive Violations:

  • Committing a new criminal offense while on probation

  • These are more serious and almost always lead to revocation proceedings

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The following outlines the procedure following a reported violation of probation:

 

A. Arrest or Summons

  • A probation officer may issue a violation report

  • The court may issue an arrest warrant or a summons for a hearing

 

    B. Probation Revocation Hearing

  • The defendant is entitled to a hearing before a judge

  • Standard of proof: “Preponderance of the evidence” (lower than “beyond a reasonable doubt”)

  • The probationer has the right to:

    • Notice of the alleged violation

    • Present evidence and witnesses

    • Cross-examine witnesses

    • Be represented by an attorney

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    C. Judge’s Decision

The court may:

  • Reinstate probation with the same conditions

  • Modify the terms of probation (e.g., add jail time, curfew)

  • Revoke probation and impose the original suspended sentence

 

  • If probation is revoked, the judge may impose all or part of the original suspended sentence

  • In felony cases, this can mean returning to the Department of Corrections custody

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