Any person, felon or misdemeanant, can be on probation for up to 5 years. In some cases—assuming you did the extension just right—probation could be as long as 8 years. So, there are some pretty old probation cases hanging around. But probation in North Carolina doesn’t look the same as it looked eight years ago. If you read this blog, you know that there have been many changes to North Carolina’s probation law over the past half-decade or so. The proper way to handle a violation hearing varies for the 86,653 people on probation today, depending on the date of their underlying offense, the date they were placed on probation, the date of their alleged violation, and the date of the violation hearing itself. Today’s post pulls a summary of those changes into one place, in the hope that it will help you apply the right law to the particular probationer before the court.
Offenses committed on or after January 1, 1997
- The law allowing a probationer to elect to serve his or her suspended sentence was repealed. S.L. 1995-429. (This change is older than the other ones I’ll discuss below, but I get asked about it a lot, and I included it to make clear that it was in no way connected to Justice Reinvestment.)
Offenses committed on or after December 1, 2009
- Warrantless searches by probation officers and law enforcement officers were made regular conditions of supervised probation. For earlier offenses, warrantless searches could have been ordered as a special condition of probation.
- Not use, possess, or control any illegal drug or controlled substance was made a regular condition of supervised probation. Previously, it could have been imposed as a special condition.
- Any probationer subject to Intermediate punishment was automatically made subject to four additional conditions of supervision: not use, possess, or control alcohol; perform community service if required by the probation officer; remain within the county; and participate in any evaluation, counseling, treatment, or educational program as directed by the probation officer.
- Probation officers may access the probationer’s juvenile record without a court order.
Offenses committed on or after December 1, 2011
- Intermediate punishment was redefined so that it no longer required any of the six specific conditions that previously made a sentence Intermediate (intensive supervision, special probation, electronic house arrest, residential program, day-reporting center, or drug treatment court).
- Community punishment was redefined so that any condition aside from special probation and drug treatment court is allowed.
- The statutes codifying intensive supervision, residential programs, and day-reporting centers were repealed.
- “Community and Intermediate” probation conditions were created for Structured Sentencing (i.e., non-DWI) probationers, allowing things like 2- to 3-day dips in the jail in any case. All of these conditions are listed in this prior post.
- All probationers were made subject to a regular condition of probation prohibiting absconding.
- Probation officer delegated authority was expanded to include things like electronic house arrest, an electronically-monitored curfew, and 2- to 3-day quick dips. Also, officers may, for these offenses, use delegated authority even before any violation has occurred if the probationer is deemed a high risk.
Persons placed on probation on or after December 1, 2011
- Probation tolling was repealed. Persons placed on probation before that date for offenses that occurred on or after December 1, 2009, are still subject to a modified form of tolling. Defendants with earlier offense dates are no longer subject to any tolling at all. The entire tolling saga, culminating in State v. Sitosky, is recapped here.
Probation violations occurring on or after December 1, 2011
- Judges’ revocation authority was limited to probationers who violate by absconding or by committing a new criminal offense. A judge can revoke probation for any earlier violation.
- Confinement in Response to Violation was created as a sanction for violations other than a new criminal offense or absconding. After two CRV periods, a probationer may be revoked for any violation. CRV is not permitted for older violations or for new criminal offenses or absconding.
July 16, 2012 (effective immediately)
- The procedure for a probationer to waive his or her rights to counsel and a hearing before a quick dip may be imposed was amended so that the witness may be another probation officer, not necessarily the officer’s supervisor.
- Misdemeanor CRV was clarified to make clear that a “terminal CRV” is not mandatory in cases where fewer than 90 days remain on the defendant’s suspended sentence.
June 12, 2013 (effective immediately)
- The CRV law was clarified to make clear that CRV confinement must be served continuously. In other words, “weekend” CRV was expressly forbidden.
- The absconding condition was amended to say that it applies only to supervised probationers.
- Probation officers were no longer required to take supervised probationers on a prison tour.
Probation violations occurring on or after December 1, 2013
- Defendants who waive a revocation hearing in district court may no longer appeal to superior court for a de novo hearing. That limitation is discussed here.
Probation violations occurring on or after October 1, 2014
- Felony CRV may not be reduced by jail credit for time already served in the case. Previously, it was mandatory for the judge to credit the CRV with any time spent detained awaiting the probation violation hearing at which the CRV was imposed. (There is no similar rule for credit as applied to CRV for a misdemeanor or DWI.)
September 23, 2015 (effective immediately)
- Upon appeal of a probation revocation in district or superior court, probation supervision continues under the same conditions until the probation expires or disposition of the appeal, whichever comes first. I wrote about this complicated rule here (and please note that it was revised again, effective for offenses committed on or after December 1, 2016, as discussed below).
Persons placed on probation on or after December 1, 2015.
- CRV was repealed for Structured Sentencing misdemeanants. CRV of up to 90 days may still be used as a sanction for Structured Sentencing misdemeanants placed on probation before that date, and for all felons and impaired drivers regardless of the date they were placed on probation.
- Structured Sentencing misdemeanants may be revoked for any violation after two prior periods of quick dip confinement are imposed by the court or by a probation officer through delegated authority in response to earlier technical violations. This change is described here.
Offenses committed on or after December 1, 2016
- The September 23, 2015 appeal rule mentioned above was modified to make clear that probation supervision continues during appeal only when the judge grants release under Article 26 of Chapter 15A (bail) pending appeal. Note that the September 23, 2015 version remains the law for everyone on probation for offenses committed before December 1, 2016—and honestly, I still don’t really have a good idea of what that law means.
- When concurrent CRV periods are served in cases that wind up served consecutively upon revocation, the judge shall credit the CRV time to only one sentence. For earlier offenses, it appears that the time should be credited to all the cases in which a CRV period was served. This complicated issue was discussed here before the change, and then here after it.
- All probationers are subject to a regular condition of probation requiring them to allow digital pictures of their face, scars, marks, and tattoos.
- All felony supervised probationers must execute a waiver of extradition, as discussed here.
- All supervised probationers must submit a signed document saying they will comply with the conditions of probation imposed by the court.