Most Experienced and Aggressive Criminal Defense Attorneys handle many cases in which the client is charged with Violation of Probation. Typically when a judge places a criminal defendant on probation, the judge will require the person to do certain things while on probation such as report to an agent, perform community service, participate in drug treatment. The probation also requires the defendant to remain law abiding and very often to be randomly tested for drug use.
If a defendant violates any of these conditions, the agent will notify the judge who will usually order a hearing to determine if he probation has been violated and very often issue a warrant for the defendant’s arrest. Many judges routinely order that the defendant be held without bail until such hearing takes place. Many attorneys wrongly assume that violations of probation are not defensible since there is no prohibition on the use of hearsay testimony and the State must only prove the violation by a preponderance of the evidence standard, not beyond a reasonable doubt as is the case in criminal trials. Many defenses are in fact viable in violations of probation including speedy trial type defenses. I successfully defended a client in a violation of probation hearing this week in Baltimore County District Court using this type of defense. Here are the facts:
My client was convicted of possession of a controlled dangerous substance in 2007, when she was just 18 years old. In May of 2008 she tested positive for opiates and a violation of probation was issued. The court issued a bench warrant for her arrest ordering that she be held without bail pending the hearing. I find this tactic by judges troubling, particularly in cases involving non-violent misdemeanors, as it often causes lengthy incarceration prior to that person being adjudicated guilty of the violation; and in many cases, such as this one, where the person was ultimately found not to have violated her probation.
The client was not arrested on the warrant until July of 2011, more than 3 years after it was issued. The case was set in for a hearing in early August. Her family hired me the night before the hearing so I knew very little about the case prior to appearing the next day. After reviewing the probation violation report and speaking to the client, I learned that the alleged violation was a positive result on a drug test but that she had had some dental work done at this time and that her dentist had prescribed her a few pain killers. She claimed to have provided documentation of the prescription to the probation department but they had no record of it. At this point I requested a postponement to try to locate documentation of the prescription. The judge granted the request and released my client on her own recognizance pending the hearing.
Unfortunately , after over 3 years we were unable to locate any documentation confirming that she had in fact been prescribed pain killers by a dentist but this fact was very helpful in speedy trial argument that I made at the next hearing. When we appeared in court I made what is known as “Beach Motion” after the first case in Maryland that discussed this issue. Essentially, the law says that upon filing a violation of probation and issuing a warrant for the defendant’s arrest, the State must make reasonable efforts to get that warrant served and bring that person to trial. In this case, the defendant had lived at the same address the entire time and the State never made any effort to serve the warrant even though they did in fact have her correct address.
Although it is not required to show prejudice to the person’s defense to prevail on a Beach Motion, it is certainly a persuasive to most courts if you can demonstrate such prejudice. In this case we had a compelling argument that as a result of the delay, my client was unable to secure evidence that would have totally exonerated her. In spite of the fact that we were in front of one of the toughest judges in Baltimore County, the court granted the Motion and dismissed the violation of probation.