Howard Snader of the Snader Law Group in Phoenix, Arizona has been practicing criminal defense for more than 30 years and a board-certified expert in criminal law for more than 25 years. The Snader Law Group has helped thousands of clients like you fend off probation violations and criminal charges.
If your case ends with probation, the following information may be helpful in dealing with the demands of probation. Before we discuss our recommendations to handle your probation, let’s talk a little about probation in general.
If you are convicted of a misdemeanor in Arizona, you may be given summary probation or unsupervised probation. Summary probation is normally a probation grant were the only requirements are to complete the terms of your probation. There is normally no supervision, just your promise to comply. Some courts may set a sentence review to make sure you are in compliance with your sentence or only bring you back to court if you fail to complete your probation successfully. Probation is a summary where it ends upon completing your sentence.
The terms of probation depend on the type of conviction, the circumstances of the crime, and your criminal history. Probation comes with specific terms or conditions. If you fail to abide by your probation directives, you risk a petition to revoke your probation. And, if found in violation, you can be reinstated to probation which could include incarceration, community service, and additional sanctions.
When convicted of a felony, the Court has the option of sending you to prison or sentencing you to a term of probation. The length and terms of probation are dictated by your case facts, your criminal history, and the skill of your attorney.
If given probation for a felony, it is possible to also be ordered to serve up to one year in jail. Pre-COVID, the real benefit of a jail term was the ability to receive work furlough. Unfortunately, with COVID, the work programs have effectively been shut down for two years. And recent inquiries I have made to probation and the jails show no intent to restart those programs anytime soon.
Felony probation may be supervised or unsupervised. Keep in mind that even unsupervised probation is monitored when ordered by the felony courts. It is just the level of supervision is substantially less than true supervised probation.
With supervised probation, you will have a probation officer (PO) with who you will be required to check-in in on a regular basis. Your PO may also check in on you, at home, at work, at school, or wherever you are supposed to be at any given time. Your probation directives can fall within intensive probation, standard probation, computer terms, sex crime terms, and white-collar terms. You will need to comply with all terms that are ordered in your specific case.
Here again, the terms of probation depend on the type of conviction, the circumstances of the crime, and your criminal history.
When it comes to setting terms of probation, judges have a great deal of discretion in Arizona. Judges tend to assign terms of probation they feel are best suited for your type of conviction.
Common terms of probation might include:
When your probation directives are issued by the Department of Probation, they will be in writing and you will be required to sign, acknowledging that you received them, understand them, and agree to abide by them throughout your probation.
Your PO will review them with you, but don’t let him breeze through them or skip anything. This might mean the difference between staying out of jail and the relative freedom of probation. Go through each term and ask your probation officer to explain anything that is not clear to you. If your PO doesn’t do a good job of explaining, ask your criminal defense attorney for clarification.
No matter what you think of probation, if there is an issue, they will always accuse you of being the one who is wrong. If they tell you to do something, and you’ve done it, but don’t have proof of it, they will find you at fault and blame you. It is really simple and worth repeating, if there is an issue, it is always assumed it is your fault.
Your only workaround is to keep records and notes to challenge any claim probation may make. Keep that in mind, you must prove that you’re right every single time, the only way you do that is by collecting your “proof”, documentation, and information, and keeping it organized. You want to keep it in such a way so that you can readily access it and easily find whatever proof you may need.
Keeping a detailed logbook of everything may be the best thing you can do to avoid serious trouble. Your logbook does not need to be fancy; a spiral notebook and a pencil are all you need. In your logbook, record every contact you have with probation, law enforcement, drug treatment, and counseling appointment. Include the date, time, and name of the person with whom you met. Every phone call, video conference, or in-person meeting needs to be logged. You can also use your phone, but that is sometimes difficult to do and may be hard to access.
It really doesn’t matter how you document: just get it done. Remember, your probation officer is keeping a record of you, you should keep a record of them.
Being on supervised probation may feel a little like living with a strict stepparent. You must ask for permission to do everything. Kill probation with kindness and OVER communicate with them. Give them no reason to doubt anything you say, no reason to doubt you are in compliance.
If you are on probation and you plan to do anything outside of your normal, approved routine, you need to get permission from your PO first, document when he approved, and confirm it in writing. This is the only way you can protect yourself from mistakes and misunderstandings.
For example, let’s say you wanted to go out of town for a couple of days, or you needed to reschedule a counseling session or anything else outside of what is permitted in the probation directives, here is what you need to do:
Your logbook is not definitive proof. Mistakes and misunderstandings happen. People change their minds. People forget things. Keep in mind, it is your freedom on the line. If your PO “forgets” he gave you permission to do something, your logbook alone may not keep you out of jail. Your best insurance is to send your PO something in writing that confirms they gave you permission. No matter how you confirm the conversation/permission, it is a step you cannot afford to miss.
It is not uncommon for a probation officer to deny requests that deviate from the probation directives. However, there are times when your PO may deny a very reasonable request. Therefore, you need to always follow the same steps as above, even when your request has been denied.
Even if your request is denied, you must still confirm it in writing. But in sending this confirmation, it is important to summarize your request, and acknowledge you will follow their decision, BUT always ask the PO why it was denied. When you ask the “why” question, the PO must provide a response. If you satisfy their reason for the denial, they should then permit you to do what you requested.
Documenting that your reasonable requests have been repeatedly denied gives you the ammunition you need to step over probation and go directly to the judge by filing a motion. At that time, you can ask the judge to grant your request. The judge will ask the Probation Department why they keep denying your request, and often if you have done everything else right, you will get the result you want. However, it will only work if you have every conversation and request with your PO documented and confirmed.
The short answer is “YES!” Maintaining a complete record of your court proceedings can save you time, money, and headaches down the road.
If you are on probation in Arizona, you want to copy all your court-related documents and save them in a safe place. This includes (but is not limited to):
You will want to save the originals in a safe place, where they won’t get lost or destroyed. Place a copy of all your court documents into a Ziploc bag that you will keep readily available for the rest of your life.
Remember, you are on probation until you have the order of discharge of probation in your hand. It could be a few weeks or years after you have been discharged from probation, but if you are ever pulled over for a traffic violation and advised a warrant has been issued, you will have your paperwork available. Maybe it was a computer glitch or record-keeping error. But having those records handy will help you to resolve the matter quickly. Just showing the officer who pulled you over may save you a trip to jail.
In many cases, there are fines, fees, and restitution. Technically, we are not supposed to be a society that has a debtor’s prison. You and I both know that’s not necessarily the case.
So, what happens when you have a financial obligation that you can’t pay or maintain a payment plan?
Times can get tough. When you are short on money, you may think that you can skip a payment and make up for it later. That will inevitably lead to trouble for you. If you cannot make the full payment due under your payment plan, pay something. At least then, when your probation officer calls you in to ask why you did not pay your fines or restitution, you can say, “I paid everything that I had.”
Keep in mind that restitution is usually a big chunk of your sentence, and your probation officer may not like that you have fallen behind. So, like everything else, while you are on probation in Arizona, keep good financial records. Save your receipts and track your expenses in your logbook. Have those records handy when you speak to your PO to prove that you are unable to pay the full amount.
You can only be punished or sent to jail if you’re able to pay but refuse to do so. But it all comes down to record-keeping. Your word is not going to be enough. You need proof that you cannot afford to pay your restitution.
At the end of probation, you’ll get an order of discharge. Once you have the order of discharge, your conviction may be eligible to be set aside. In the past, most convictions could not be set aside, but Arizona law is changing in December of 2022 and moving into 2023 making many more convictions eligible to not only be set aside but also to be expunged.
Whether setting aside or seeking an expungement or requesting your rights be reinstated, that process can only begin after you successfully complete probation.
If you are having problems while on probation, possibly facing probation revocation, OR wanting to file a motion to terminate your probation early, please contact me, Howard Snader, of the Snader Law Group so we can get started helping you. When you are ready just give us a call or email.
