A.R.S. § 13-901: Probation

As an alternative to jail or prison time, judges in Arizona can sentence individuals to serve probation time. Terms of probation will be determined on a case-by-case basis and various factors will affect the time and conditions. The nature of the offense, the criminal history of the individual, and the charges against are the most important factors in determining probation. Certain crimes, such as crimes defined as violent and dangerous crimes against children, are not eligible for probation. In most cases, probation will be eligible and as long as the person abides by the terms of probation, the sentence will be much shorter. Knowing how a person can violate probation and the penalties for doing so will help understand the probation process.

Basics of Probation

Arizona Statute § 13-902 lists the statutory periods of probation depending on the classification of the crimes committed:

A. Unless terminated sooner, probation may continue for the following periods:

1. For a class 2 felony, seven years.
2. For a class 3 felony, five years.
3. For a class 4 felony, four years.
4. For a class 5 or 6 felony, three years.
5. For a class 1 misdemeanor, three years.
6. For a class 2 misdemeanor, two years.
7. For a class 3 misdemeanor, one year.

However, if an individual is convicted of regular DUI, found in Arizona Statute § 28-1381, or Extreme or Super Extreme DUI, found in Arizona Statute § 28-1382, probation may continue for five years. If the conviction is for Aggravated DUI, a felony conviction found in Arizona Statute § 28-1383, probation may continue for ten years.

There are three types of probation: unsupervised, supervised, and intensive probation. Unsupervised probation is the least burdensome and mainly just requires the individual to remain law-abiding during the probation term. Generally, there are not any check-ins or required visits. Supervised probation is the most common form given and requires the individual to check-in with a probation officer and will usually require additional drug or alcohol testing and a form of counseling as well. Intensive probation, the heaviest penalty, requires “a program established pursuant to this chapter of highly structured and closely supervised probation which emphasizes the payment of restitution” per Arizona Statute § 13-913.

The Arizona Adult Probation Services Department sets out the requirements for intensive probation, for example, on the Arizona Courts website:

Intensive probationers are required to:

• 1) maintain employment or full-time student status or perform community service at least six days per week;
• 2) pay restitution and monthly probation fees;
• 3) establish residency at a place approved by the probation team;
• 4) remain at their place of residence except when attending approved activities;
• 5) allow the administration of drug and alcohol tests;
• 6) perform at least forty hours (with good cause the court can reduce to 20 hours) of community service work each month except for full-time students, who may be exempted or required to perform fewer hours; and
• 7) meet any other conditions set by the court.

How to Violate Probation

 Intensive probation requires constant monitoring and checking in between the individual and the probation officer. Supervised Probation will not be as intense but will require the individual to check in with the probation officer and keep them updated on work or schooling status. Most terms will be specific to each case and criminal charge and will vary between different individuals. However, failure to comply with any term of probation can result in a probation violation.

Most probation violations occur when a person on probation commits a new crime, fails a drug or alcohol test or fails to complete the test, fails to contact the probation officer at the designated times, fails to make any payments towards the fines and fees or restitution, or does not comply with any other term of probation set by the court. Any violation of any term can result in revocation of probation.

What Happens After a Probation Violation?

Once an individual has violated a term of probation, the probation officer or the State can file what is called a “Petition to Revoke Probation.” The Arizona Rules of Criminal Procedure lay out the process for probation violations. Rule 27.6 states:

The probation officer or the State may petition the court to revoke probation if there is reasonable cause to believe that a probationer has violated a written condition or regulation of probation. After a petition to revoke is filed, the court may issue a summons directing the probationer to appear on a specified date for a revocation hearing, or it may issue a warrant for the probationer's arrest.

So, any probation violation can lead to the arrest of the individual. This process becomes its own mini trial for the violation. The individual will have an initial appearance upon arrest per Rule 27.7 and the judge or court “must advise the probationer of the probationer's right to counsel under Rule 6, inform the probationer that any statement the probationer makes before the hearing may be used against the probationer, set the date of the revocation arraignment, and make a release determination.” The revocation arraignment is like the trial where the State or probation officer will present evidence to show the individual violated probation. However, in a revocation arraignment the State can use hearsay against the person and will only need to prove the violation with the preponderance of the evidence and not with the beyond reasonable doubt standard. This makes it easier to find the individual guilty of violating probation.

After the arraignment, the sentencing phase is known as a disposition hearing. This can be held right after the revocation arraignment or a week to 20 days after. Here, the court will decide to revoke, modify, or continue probation. If the court revokes probation the individual will most likely be remanded to serve jail or prison time. A modification will result in additional terms of probation and continuing probation will reinstate the individual to the same terms as before. The type of violation will most likely affect the disposition the court gives to the individual.  

For example, a DUI conviction has the potential to have a deferred jail sentence. The individual will serve 1, 9, or 14 days in jail depending on the charge and the rest of the sentence is deferred. If an individual violates probation they could be required to serve the rest of the jail sentence.

Because of the lower standard of proof required in a probation violation hearing to find an individual guilty and the potential consequences one faces, having a qualified and experienced attorney is most important. A person has the right to counsel at these hearings and should have counsel present. Whether it is communicating with the State or the Adult Probation Department or challenging the evidence at the hearing, knowledgeable attorney’s at Peoria Criminal Lawyer will guide you through this process and present the best plan for your case.