Getting Bail on Probation Violations

Thank you for taking a peak at my second blog entry – Getting Bail when accused of a Probation Violation

This entry will explain the basics of trying to get bail when you are accused of 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 and 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, and often judges will make you sit in jail while you are waiting to get your hearing to contest any alleged violations.

My next blog entry will rewind things a bit.  My goal over the next few months is to explain generally how the entire criminal process works in Bangor, Maine.  I plan on covering being served with a criminal summons all the way through to trial, sentencing, and appeals.  Thank you for taking interest.  If you think of any particular blog topics you would like to see, please feel free to email me with suggestions.

Getting Bail when accused of a Probation Violation(s):

In general it is extremely difficult to get released on bail when you are accused of a probation violation.  Unlike bail proceedings prior to 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 have the burden to 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 the standards of post-conviction bail 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:

A. There is no substantial risk that the defendant will fail to appear as required and will not otherwise pose a substantial risk to the integrity of the judicial process;
B. There is no substantial risk that the defendant will pose a danger to another or to the community; and
C. 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 factors), as well as the facts proved at trial, the length of the term of imprisonment imposed and 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 pursuant to Title 19, section 769 or Title 19-A, section 4011.  (15 M.R.S.A. § 1051(2)).

The judge or justice may impose, in lieu 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, or (4) may fail to comply with conditions of release or may constitute a danger to another person or the community. (15 M.R.S.A. § 1051(3)).

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

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

A. The nature and circumstances of the crime charged;
B. The nature of the evidence against the defendant; and
C. The history and characteristics of the defendant, including, but not limited to:
(1) The defendant's character and physical and mental condition;
(2) The defendant's family ties in the State;
(3) The defendant's employment history in the State;
(4) The defendant's financial resources;
(5) The defendant's length of residence in the community and the defendant's community ties;
(6) The defendant's past conduct, including any history relating to drug or alcohol abuse;
(7) The defendant's criminal history, if any;
(8) The defendant's record concerning appearances at court proceedings;
(9) 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 an offense in this jurisdiction or another;
(9-A) Any evidence that the defendant poses a danger to the safety of others in the community;
(10) 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, justice or other officer of the court; and
(11) Whether the defendant has previously violated conditions of release, probation or other court orders, including, but not limited to, violating protection from abuse orders pursuant to Title 19, section 769 or 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.

Some things that can often help convince a Judge to help let you out on bail include but are not limited to agreeing to the following:

•    Curfew (for example agreeing to reside at home between the hours of 7pm and 6am)
•    To check in with the police on a daily basis
•    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 big burden.  I generally recommend that if you are accused of a probation violation you get an attorney to both help get you out on bail, defend against any potential violations, and defend against any potential criminal charges that could result from the violation, i.e., if the violation is alleged new criminal conduct.

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