Probation Violation FAQ’s

March 14, 2017

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Probation — officially known as “Community Supervision” in Texas — is where a person is either convicted after either a guilty plea or a trial and rather than sending the person to jail or prison their sentence is frozen while they complete probation.  Deferred Adjudication is another form of probation where a person has plead guilty or no contest and the Judge withholds a determination of guilt pending the completion of probation.

Think of Probation in two categories:  Things you must do and things you can’t do.  Obviously you can’t get arrested, break laws or go to places you might not be allowed.  On the other hand you typically have to complete community services hours, and take classes (such as anger management, alcohol awareness, or an anti-theft class).

What is A Motion to Revoke (Adjudicate)?

Revoking probation is where the State files a motion alleging a violation of probation after a conviction.  The state is essentially asking the Judge to un-freeze the jail sentence and sentence the Defendant accordingly assuming probation has been taken away.

A motion to adjudicate is the same except it is for Deferred Adjudication.  The only difference is the state is asking for the judge to proceed with a conviction and sentence the Defendant anywhere within the applicable punishment range.

When discussing a motion to revoke, I also mean to use motion to adjudicate interchangeably for ease.

What Will Happen if I Get Revoked?

If the probation officer recommends revocationthe Prosecutor typically approves it.  They file a motion with the Court and the Judge issues a warrant for a probationer’s arrest. Where a defendant has deferred adjudication they are normally entitled to a bond but this might not be set until after the arrest.  Misdemeanor deferred and convictions are eligible for bond — again sometimes only available after the arrest.  Felony convictions are typically not eligible for a bond pending revocation.

Your case proceeds to Court as did the original case.  There are two issues in play.

First is whether the probationer violated.  This is a question for the judge only because a right to a jury has since been extinguished in the original proceeding.  The standard of proof is beyond a preponderance of the evidence — much lower than beyond a reasonable doubt as it would be at trial.

The second issue is assuming the revocation is good (and statistically most are), then what should the appropriate punishment be at this point?

What Are the Reasons Most People Get Revoked?

It varies.  Legally you could get revoked by missing a single probation appointment though I’ve never seen this happen.

In Collin County most new offenses or arrests result in a motion to revoke even if they are Class C misdemeanors.

Other common reasons for revocation are failed drug tests, non-reporting, failure to complete classes, failure to do community service and failure to pay fines and fees.

The revocations in the latter group are mostly clusters of allegations.  It is very rare to see a person revoked for one short-coming while on probation.

Will My Probation Be Revoked If I (Fill in the Blank)?

It’s truly a case by case basis.  Much of it has to do with your relationship with your probation officer.  Many of them want to see a probationer succeed and unfortunately some of them want to see a probationer fail.

I Think They Want to Sanction Me.  Do I Have to Agree to It?

No.  This is where a probationer has violated probation but a probation officer would rather not go through the Court system to address the problem.

Only the Judge can unilaterally alter the terms and conditions of your probation.  A probation officer is asking you to waive that by handing you sanctions.  Many proposed sanctions are ridiculous then again many are great deals which can avoid a full-blown revocation.  The problem is often the probation officer corners someone with the proposed sanction in the office accompanied with threats and an inability to talk to a lawyer first.

What is a “Technical” Violation of Probation?

A “technical” refers to a violation which is not a new criminal charge.  As discussed above, revocations based on technical violations tend to come in clusters of violations.  Unfortunately a technical violation is typically easier to prove than a new case.

Is My Probation Officer Out to Get Me?

Probation officers have a hard job.  They deal with a lot of people who are abusive and disrespectful to them.  Being someone who makes their job harder certainly doesn’t help your chances.

Some probation officers feel a strong need for control, though, to people who challenge them.  If you fit in either of these categories then you’ll have problems with a probation officer.

*Jeremy Rosenthal is a lawyer licensed to practice in Texas and he is Board Certified in Criminal law.  Nothing in this article is intended to be legal advice and you should consult a lawyer for any criminal situation.

 


Texas Law on Marijuana Edibles

March 13, 2017

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

With states such as Colorado and Washington legalizing marijuana, marijuana “edibles” arrests are becoming more and more common in Texas.

Edibles are generally types of marijuana which can be consumed in different edible ways such as chocolate bars, brownies, and even beef jerky.

The Law of Possession is No Different

The law of possession of an edible form of Marijuana is no different than possession of other illegal drugs in some ways but different in others.  This is to say “possession” as defined by Tex.Pen.C. 1.07 (39) is “actual care, custody, control or management” of any contraband which may be illegal.

What is Different About Texas Law on Edibles?

There are two main differences.  One is the active ingredient is not identical to the marijuana in it’s natural form and that makes a difference in how the case is charged.  The other is the weight of the edibles make the charge worse.

Drug Weight — Adulterants and Diluents

Drug weight is the more significant factor.  The seriousness of a criminal charge is generally due to the weight of the drug seized by law enforcement.  The weight of the drug is not just the weight of the active ingredient but also what are known as the “adulterants and diluents.”

Good examples of common “adulterants and diluents” appear in common street drugs such as methamphetamine and heroin as ways to enhance those drugs.

It’s a safe bet the Texas legislature didn’t have edible marijuana and the weight of cookie dough, cake batter, or butter in mind for adding to the degree of the charge.

So What is the Bottom Line?

Being in possession of a pot-brownie or chocolate bar takes what would be thought to be an average drug possession case and turns it into First or Second Degree Felony based on the type and weight.

But there is silver lining in two forms.  First is aggregating an edible marijuana possession case to first or second-degree felony status is such an over-reach prosecutors would hopefully be inclined to treat the cases for what they are — simple drug possession cases.

Second is even if the prosecutor won’t treat the case appropriately — a jury can still be made to decide whether batter and chocolate are truly “adulterants and diluents” the same way street products can be used to enhance methamphetamine or crack-cocaine.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal law.  Nothing in this article should be considered legal advice.  For legal advice about this or any situation you should contact an attorney directly.