Probation violation - Now what?

Most criminal cases resolve short of trial, many with a plea agreement including probation.  Even trial convictions can include a probation sentence.  Probation means - if you stay out of trouble and timely comply with its terms and conditions - avoiding worse consequences like jail or prison.  So, what happens if you mess up and are accused (and possibly arrested and jailed) of violating probation?

First, you'll get written notice of the alleged violation(s).  This is usually in the form of a complaint to revoke probation filed with the court overseeing the case, and a summons requiring you to appear in court to answer the allegations made by the probation department and prosecutor's office.

Second, you're entitled to a hearing - evidence and all - but typically not a jury, and under a lessor preponderance of evidence versus reasonable doubt standard.  An exception is if the alleged violation is a new offense, which triggers additional due process.  In Colorado - a more or less typical state when it comes to probation - details of the process can be found at CRS 16-11-206 and Criminal Procedure Rule 32.  Federal probation is an entirely different, and rare, creature.

Third, if revoked, you can be re-sentenced per the charge or charges you pled to, including jail or prison, fines etc. 

Meantime the prosecution likely will try to negotiate with you (your lawyer if you have one) a resolution short of proceeding with a hearing.  This mainly is because, if they or the judge wanted you in jail or prison in the first place, you'd probably already be there.  Instead, per a new agreement the terms and conditions and length of probation may be "continued" or extended, additional classes or treatment required, jail alternatives like day reporting, work release or in-home detention imposed, etc.  In other words, you usually get at least a second chance on probation, subject as always to judge approval.

One of the worst things about being a judge must be listening to people explain or excuse or try to justify why they violated probation (which sentence often really is a gift in the first place).  Judges do this a lot (get to court an hour or so early and see for yourself).  

Especially in cases where the alleged violation is missing appointments, failing to complete classes or treatment in time, not paying what is required, and the like, it may be better to admit, apologize and get on with it.  Cases involving "hot UAs," protection order violations, or new offenses, may justify increased push back, depending on your options.

It goes without saying that probation should not be taken lightly, and neither should revocation proceedings.  Consult an experienced lawyer first.

Agistor Liens - securing the cost of caring for livestock

  Colorado enables a person boarding horses or other livestock belonging to another person to file a lien for the cost of that care.  It is known as an “agistor lien,” detailed at CRS 38-20-201-120 (“Agistor’s Lien Act”).  An “agistor” is "any rancher, farmer, feeder, herder of cattle, livery stable keeper, veterinarian, or other person to whom livestock are entrusted by the owner for feeding, herding, pasturing, keeping, ranching, or boarding, or providing medical care."  CRS 38-30-202(3).

  According to the statute (at subsection -203):

(1) An agistor shall have a lien upon the livestock entrusted to its care for any amount that may be due for feeding, herding, pasturing, keeping, ranching, or boarding such livestock, for medical care provided to such livestock, and for all costs incurred in enforcing such lien, including attorney fees. The provisions of this section shall not apply to stolen livestock.

(2) An agistor's lien shall be effective for the entire period during which the livestock are held by the agistor, and if the livestock referenced in subsection (1) of this section are sold, exchanged, or otherwise disposed of from the premises of the lienor by anyone other than the lienor acting on his or her own behalf or the lienor's agent, the lien created by this section shall continue and shall attach to the proceeds received or receivable from such disposition. To the extent an agistor's lien remains effective, such lien shall be superior to all other liens.

  As with most liens, agistor liens are more complicated than they sound, limited in their applicability and effect, and frustrating to enforce.  For example, for the lien to apply, the animal must belong to a person other than the agistor, there must be an underlying agreement to pay for the care, the person asserting the lien must have possession of the animal, and other factors.  If filing the lien does not result in payment within a certain time, a court may order the sale of the animal to satisfy the lien amount.  Other timing issues and limitations apply.

  If there is a dispute over who actually owns the animal, a more general lawsuit likely will be required to determine ownership and enforce available remedies.  Contact Sanderson Law, P.C., for help.

Accused college sex offenders deserve due process.

In a recent Colorado appellate decision, the court recognized that colleges ("private educational institutions") owe to their students "a duty of care in the course of [their] investigations and adjudications of allegations of non-consensual sexual contact...."  

This is significant because it means colleges that expel students accused of sex offenses on the weakest of allegations and evidence can be sued for damages.  As the court put it, "[a] mere allegation of sexual misconduct can be devastating to the accused. A determination that a person engaged in non-consensual sexual contact can potentially destroy the accused’s educational, employment, and other future prospects."

The court explained that "[a] student who is dismissed after the culmination of a partial or unfair investigation will likely suffer a diminished earning capacity and stigma from the expulsion, and may be prevented from engaging in their chosen profession."

The case - Doe v. University of Denver, 2022COA57, announced 5/26/22 - is a welcome affirmation of due process of law.  

How to handle Probation

Most criminal cases do not go to trial.  They resolve via plea agreements often including probation.  Probation offers defendants a chance to avoid worse things like jail, and the "justice system" a chance to save resources.

Probation typically includes terms and conditions suited to the offenses involved - a drug or alcohol case will include treatment and testing (monitored sobriety), therapy in a domestic violence case, anger management classes in an assault case etc. - and more general terms like restitution (paying back for money damages caused), maintaining stable employment/school and a residence, staying out of trouble etc.

Probation terms and conditions have increased over the years (probably because it is an industry itself).  Those terms and conditions can seem daunting, overwhelming, impossible, scary.  How should you handle it?  

The answer is simple:  Don't fight it.  The more you (appear) to push back, the tougher probation becomes.  "Thank you sir may I have another" should be your mindset.  Always be nice.  Be polite.  Smile.  The quicker your overworked and probably underprepared probation officer concludes you are not a problem, the quicker they focus on someone who is, and the sooner your case's level of intensity and scrutiny will drop off to near zero.  Plus, maybe you'll learn something along the way.

And those scary terms like possible surprise visits from your probation officer, random searches, not being able to leave the state etc. etc.?  They rarely happen.  Most alleged probation violations are failure to complete classes or treatment in time, or (surprise) pay fees or costs on time, or (duh) getting in trouble again including positive drug /alcohol tests.  Otherwise, the forms accompanying probation contain way more bark than bite.

Failing to keep in touch with your probation officer, or missing appointments or check-ins with them, is another popular (and dumb) way to violate probation.  Granted, this seems often as much fault of the overly bureaucratic probation department as the defendant.  Avoid this in any event by keeping track of when your appointments etc. are and not missing them.  Keep a record of your attempts to contact your probation officer (emails are a great way to do this; text messages are not).  Being able to show your repeated and timely positive effort and attempts to meet or reschedule or show up or call the probation department or your officer can minimize trouble.

Probation is not as bad as it first seems, and usually better than the alternative.  Proceed accordingly.

 

Police seizure and search of a pill bottle

 A Colorado appellate court recently reversed a conviction following the trial court's refusal to suppress evidence (nonprescribed oxycodone pills) obtained as a result of an illegal search of pill bottles found in defendant's car.

Per the 4th Amendment, police search of a seized container's concealed contents must be pursuant to a search warrant or justified by one of the limited exceptions to the warrant requirement.

Mere police observation of an unlabeled prescription pill bottle does not give them probable cause to associate it with criminal activity.  Although they lawfully seized the bottles under the so-called plain view exception to the warrant requirement, police lacked constitutional authority to further inspect (search) them without a warrant.

Because that unlawfully obtained evidence was used to convict defendant, the conviction could not stand and was reversed.

The case is People v. Alemayehu, 2021 COA 69.

Are releases and injury waivers enforceable?

In Redden v. Clear Creek Skiing Corporation, 490 P.3d 1063 (Colo. App. 2020), the Colorado appellate court recently rejected the case of a Loveland area skier injured while getting off a chair lift.  

Instead, the court upheld the validity of two "exculpatory agreements," a waiver which skier Redden signed nearly a year before the incident when she bought ski boots and had her ski bindings adjusted at defendant Clear Creek's ski shop, and another unsigned waiver consisting of a series of disclaimers listed on the back of her lift ticket.

Though fact specific, the take away is that claim releases, injury waivers, risk disclaimers, liability limits and the like may be enforceable and have ramifications much later, even if contained in the so-called fine print most people read over quickly (if at all).

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As an update, the profession's respected Colorado Lawyer (April 2023 edition) contains a lengthy article by plaintiff's personal injury lawyers asserting (p. 45) "Redden holds that, under exculpatory waivers and releases built into season pass agreements or printed on lift passes, skiers [now] waive their rights to ... sue Colorado ski area operators" for negligence.  The Colorado Supreme Court declined to review the Redden decision, thus making it Colorado law.

Unlawful Arrests

We've all heard that police need probable cause to arrest.  What does that mean exactly?  Can't police arrest you anyway?

Probable cause means reason to believe a crime is being (or was) committed and the person arrested committed it.  Absent a written warrant (which takes time, planning and effort - plus probable cause - to get from a judge or magistrate), it is required to make a "lawful" (a constitutionally valid) arrest.

Of course people with badges, uniforms, guns, tasers, clubs, handcuffs, helpful buddies and sheer "official" force -  have the power to arrest ("take into custody") pretty much anyone anytime.  Fighting with police and resisting arrest are not good ideas.  However, if there is no probable cause, evidence obtained (like confessions or admissions, searches, fingerprints, DNA, contraband etc.) generally is subject to being suppressed (excluded) from a related criminal case against the arrested person.  

For example, recently the Colorado Court of Appeals reversed a murder conviction because "the show-up identification and gunshot residue" were obtained as a result of an arrest lacking probable cause following an otherwise valid stop by police.  The case is People v. Oliver, 2020 COA 150.

To be sure, this is small comfort to the person arrested, jailed for who knows how long, hugely inconvenienced, and prosecuted, but typically it is enough to help limit arrests to valid ones.  (Whether there is proof beyond reasonable doubt needed to convict is a whole different story.)  

In more serious cases, including where the suspect is roughed up, or bad faith otherwise is apparent, a civil lawsuit against the arresting agency and personnel, seeking money damages, might be available as a remedy (usually a long shot in any event).

Like the song says, Just because you've got the power, doesn't mean you've got the right.  (Motorhead:))

- Sanderson Law, P.C.  We can help.