Getting Bail on Probation Violations

Thank you for taking a peek at my second blog entry. Getting Bail when accused of a Probation Violation. Thank you for taking an interest. If you think of any particular blog topics you would like to see, please feel free to email me with suggestions. This entry will explain the basics of getting bail when you are charged with a probation violation.

When you have been accused of a violation, you can be arrested and held for a few days until the Motion for Probation Revocation is filed. Once it is filed, you have the right to go before a judge to argue about getting bail until you get your hearing to contest any alleged violations.

The Bottom Line

It’s hard to get bail when you have been accused of a probation violation. The burden is on you to prove to the court why you should get out pending your hearing. Often judges will make you sit in jail while waiting to get your hearing to contest any alleged violations.

My next blog entry will rewind things a bit. My goal is to explain how Bangor, Maine’s entire criminal process works over the next few months. I plan on covering being served with a criminal summons through to trial, sentencing, and appeals.

Getting Bail When Accused of a Probation Violation

In general, it is challenging to get released on bail when you are accused of a probation violation, unlike bail proceedings before conviction, where the prosecution has the burden of showing to the court why personal recognizance bail is inappropriate. In bail proceedings for a probation revocation (“post-conviction bail”), you must prove to the court why you should be let out on bail.

Under Maine law, in proceedings for probation revocation, the court must be guided by post-conviction bail standards in Title 15, section 1051, subsections 2 and 3. (17-A M.R.S.A. § 1205-C). Before the Judge can let you out on post-conviction bail, you have to give the court “probable cause” to believe that:

• There is no substantial risk that the defendant will fail to appear as required and not otherwise pose a considerable threat to the judicial process’s integrity.
• There is no substantial risk that the defendant will pose a danger to another or the community.
• There is no substantial risk that the defendant will commit new criminal conduct. (15 M.R.S.A. § 1051(2)).

In determining whether to give you bail, the judge or justice shall consider the factors relevant to pre-conviction bail listed in section 1026. See further below in this blog entry for the list of elements. As well as the facts proved at trial, the length of the term of imprisonment imposed any previous unexcused failure to appear as required before any court, or the defendant’s prior failure to obey an order or judgment of any court, including, but not limited to, violating a protection from abuse order according to Title 19, section 769 of Title 19-A, section 4011. (15 M.R.S.A. § 1051(2)).

The judge or justice may impose, instead of or in addition to an appearance or bail bond, any condition considered reasonably necessary to:

1. Minimize the risk that the defendant may fail to appear as required.
2. May compromise the integrity of the judicial process.
3. May commit new criminal conduct.
4. May fail to comply with release conditions or may constitute a danger to another person or the community. (15 M.R.S.A. § 1051(3)).

Section 1026 provides several factors in setting pre-conviction bail:

In setting bail, the judicial officer shall be based on an interview with the defendant, the defendant’s attorney’s information, and information provided by the attorney for the State or an informed law enforcement officer if the attorney for the State is not available. Other reliable information that can be obtained should take into account the available information concerning the following:

• The nature and circumstances of the crime charged.
• The nature of the evidence against the defendant.
• The history and characteristics of the defendant, including, but not limited to:
  • The defendant’s character and physical and mental condition.
  • The defendant’s family ties in the State.
  • The defendant’s employment history in the State.
  • The defendant’s financial resources.
  • The defendant’s length of residence in the community and the defendant’s community ties.
  • The defendant’s past conduct, including any history relating to drug or alcohol abuse.
  • The defendant’s criminal history, if any.
  • The defendant’s record concerning appearances at court proceedings.
  • Whether, at the time of the current offense or arrest, the defendant was on probation, parole, or other release pending trial, sentencing, appeal, or completion of a sentence for a crime in this jurisdiction or another.
  • Any evidence that the defendant poses a danger to the safety of others in the community.
  • Any evidence that the defendant has obstructed or attempted to obstruct justice by threatening, injuring, or intimidating a victim or a prospective witness, juror, attorney for the State, judge, magistrate, or another officer of the court.
  • Whether the defendant has previously violated conditions of release, probation, or other court orders, including, but not limited to, violating protection from abuse orders according to Title 19, section 769 of Title 19-A, section 4011. (15 M.R.S.A. § 1026).

If the Judge or Justice has already set bail, you potentially have an additional burden of showing changed circumstances since the last bail was set. If bail has already been set, then you need to show “changed circumstances or new and significant information” (15 M.R.S.A § 1026(3)) since the last bail was set.

Things that convince a Judge to let you out on bail include:

• Curfew (for example, agreeing to reside at home between the hours of 7 pm and 6 am)
• To check in with the police daily
• To agree to reside at a particular residence (usually for this to work, you need that person to be at the hearing so the Judge can evaluate the person’s credibility)
• Potentially sign a contract where you agree to work with a supervisory organization, for example, Volunteers of America. Please note that these organizations typically have supervision fees. In Penobscot County, you should contact Volunteers of America by calling (207) 941-9450.

As you can see, arguing for bail after an alleged probation violation is complicated, and Defendants have a significant burden. I generally recommend that if you are accused of a probation violation, you get an attorney to help get you out on bail, defend against any potential violations, and protect against any criminal charges that could result from the offense. For example, if the crime is alleged new criminal conduct.