New Criminal Charges as a Violation of Probation

It is a regular condition of probation that a probationer must “commit no criminal offense in any jurisdiction.” G.S. 15A-1343(b)(1). The condition is straightforward enough in theory, but it raises some tricky issues in practice.

The main difficulty stems from the question of when a probationer can be said to have “committed” a new criminal offense. Is it when the new charge is brought? Or is it upon conviction of the new crime? In 1960, the Supreme Court of North Carolina said that a pending criminal charge should not serve as the sole basis for revoking an offender’s probation “unless there is a conviction on the pending charge or there is a plea of guilty entered thereto.” State v. Guffey, 253 N.C. 43 (1960) (emphasis added). Read alone, that language would appear to require the State to proceed on a new criminal charge first and reach the related probation violation only in the event of a conviction. Subsequent cases have, however, indicated that a probationer is not entitled to a jury trial on a new charge before probation may be revoked for commission of a new criminal offense. Instead, the court hearing the probation violation can make independent findings—to its reasonable satisfaction—that the offender violated probation by committing a new criminal act. State v. Monroe, 83 N.C. App. 143 (1986). What the court cannot do is determine that a new crime was committed based on the bare fact of the new charge alone.

Even if it is legally permissible to hold a revocation hearing on a new offense before there has been a criminal trial, there may be sound reasons not to. For example, postponement of the revocation matter forestalls any argument that the defendant was forced to waive rights against self-incrimination in the criminal matter by handling the probation matter first. Moreover, the probation laws give the State the tools it needs to wait on the probation violation hearing without fear of losing jurisdiction to act; the tolling provision of G.S. 15A-1344(g) will keep the case open for as long as any new charge is pending. Division of Community Correction policy requires probation officers to discuss new criminal charges with the district attorney and leaves it to the DA to decide whether to proceed with a violation hearing before conviction. DCC Policy V.H.11. Sometimes it will make sense to hold the violation hearing first—which is permissible, although the court should be sure to make independent findings that the criminal act occurred. Even better would be to reserve the violation hearing–first option to cases where there are other technical violations in addition to the new criminal offense.

Suppose the State decides to wait until a probationer has his or her day in court on the new charge before proceeding with a probation violation. If the probationer is convicted, the violation hearing will be simple enough—a conviction is clear evidence that regular condition #1 has been violated. But what if the probationer is acquitted of the new charge? The longstanding black letter rule is that probation should not be revoked on the basis of a new criminal charge of which the probationer has been acquitted. State v. Hardin, 183 N.C. 815 (1922). That does not, however, mean the behavior that led to the charge is entirely off limits as the basis for a probation violation. In State v. Causby, 269 N.C. 747 (1967), for example, a probationer was charged with the crime of possessing intoxicating liquors for the purpose of sale. He was acquitted of that new charge because he didn’t have enough alcohol to satisfy the elements of the offense, but the court nonetheless revoked his probation for violating the condition that he not have any “whiskey, beer, wine, or other alcoholic beverages on his premises for any purpose whatever.” The supreme court upheld the revocation, saying an acquittal on a new charge did not bar a judge from revoking probation based on the facts and evidence underlying that charge, so long as the revoking judge made independent findings that those facts constituted a technical violation.

Finally, no matter when the violation hearing happens, remember that under G.S. 15A-1344(d) probation may not be revoked solely for conviction of a Class 3 misdemeanor.

83 comments on “New Criminal Charges as a Violation of Probation

  1. My husband has been on state probation for a year for aggravated assault. He caught a DUI charge first defense last month. His probation officer violated in probation. He has to turn himself on today. His stater probation is for 10 years. His DUI charge is for 1 year probation. What is the time he might have to serve in jail

  2. Second dui last was feb4th Blew on my back test a.143 took out false teeth blew way less but would not let me rice out mouth first.first dui was 2012 Am disabled with brain tumor . Short termEmory and panic atts comprehenton understand ing what I read. My husbund did all that for me for 28 yrs and ran off wit a you woman 4 months ago. My income do sent pay the bills. I need help and advice . I also have a son living at home and he is still in school and also going to counciling. I am seeing a shrink. I am also be polar and have many other health issues . Severe arthritis . Ect I just couldn’t make it jail. I am so afraid I M 56 and very alone please if you can help me. 3603914748 logo

  3. If I’m on supervised probation for DUI in nc, then get arrested in ga, but the charges are dismissed and expunged, will my PO be notified?

  4. My wife got arrested in 2013, 4 counts of prescription fraud, buying oxy, she got put on the Pre Trail Intervention program in New Jersey, since then I have found she has been using prescription oxy from her doctor as well as buying off the street from a guy she worked with, I found his number and asked her about it, she confessed stating she has bought several times from him, she left me for her drug addiction, my questions is, I called and reported her use to her probation officer, will any action really be taken?

  5. I’m on probation for the next year in Massachusetts iWork’s anyone know if I was arrested last night in anther city in Massachusetts will my probation officer know I was arrested unless I tell him ????

  6. My boyfriend is on probation for his second DUI. He just caught an assault on female charg- a mistake! I called the police because we were fighting and he was using his body with force up against my body preventing me from being able to leave. I called 911 requesting a sheriff escort and the sheriff decided to charge him.

    I want to know if he will be able to get out on bond once arrested even if he is on probation

    • Seek some help, that’s an assault in most places, don’t try to justify his criminal behavior.
      “Using his body with force,” and “preventing me from being able to leave,” are pretty concerning. I don’t blame the sheriff for charging your boyfriend. Get some help for yourself, and realize that most domestic abusers escalate over time. So, it started off at this, but next time be prepared for him to actually physically hit or throw stuff at you.

  7. MY husband is currently on probation for 5 years and he caught a simple assult and destruction of personal property what will happen and should we get a lawyer. The probation officer told me she would come get him that night and she never showed up.. We asked for help so that he could quit drinking and she assigned him to group for aa and she never showed up till he caught a new charge

  8. My boyfriend is on post release in north carolina, he received 2 citations yesterday can he be violated for receiving the citations period? Any info would be grateful.

  9. Hi I have a question my friend got 2 to 10 yrs for 2 assault w deadly weapon he served 5 years got denied parole hearing 3 times (high risk) picked up a new charged of larceny while in prison next month he is going for intake process to get on parole with residential need it for his stay over,will the new charged be on his report,can parole be denied again and he can be placed back in prison or will they give him a chance?the amount of larceny is 20,000. He lied to his mom about gonna get killed by his cellmate if she don’t send the money right away before his dead line .so his cell mate got half is keeping the rest of the money with no share,so he got the social worker and investagor involved they froze the money.the mom filed complaints but she passed away .is he more likely in trouble ? Thanks for your patience .sincerely Anne

  10. My boyfriend is on probation for 3 years for failure to register correctly as a sex offender. He recently had a massive heart attack. He had a triple bypass done. Yet was accused and charged with indecent exposure. (Master baiting). Medically he can’t even get an erection. He had gone back into the hospital and after release, He went in to the magistrate. We shown him my medical records, He is still under doctors care, He has several appointments. Yet He was able to sign his own bond.
    He was told He will face a violation. Would He be served a summons, go before a magistrate, or jail till a hearing, when under medical conditions of heart issues?

  11. The revocation of a probation due to a new charge is one of many examples of how a defendant’s right to be treated as if he were “innocent, until proven guilty” is trampled upon by the courts. The constitution is clear in this regard……

  12. My boyfriend is on probation for DUI, we had a falling out the other day and i called 911, now he has a warrant for domestic violence. Can i have the charges dropped and the warrant so he doesnt go to jail? And if the charges are dropped will he still get violation of probation?

  13. What if a person is awaiting sentencing (which ultimately ended in probation) and they receive a new charge/citation? Will that count for a probation violation? The person is also appealing the citation.. Which will take place after probation is imposed on previous case. What can I expect?

  14. What will most likely happen at a hearing for a second offense violation of probation at court for my boyfriend but the violation was stupid nothing illegal just failure to communicate

  15. Im with someone who is on probation i had a drug charge 5 years before and there saying there going to violate him for being with me in catawba nc and we have been together for 10 years and got married but can they violate him and put hi. In jail for him being around me