Honolulu, HI asked in Criminal Law and Federal Crimes for Hawaii

Q: Can probation get revoked if they got arrested? Arrested isn't convicted

Just because someone got arrested that doesn't mean they picked up a new charge because they were not yet convicted. Would that be grounds for probation revocation or modification?

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1 Lawyer Answer
James L. Arrasmith
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  • Criminal Law Lawyer
  • Sacramento, CA

A: Getting arrested while on probation can potentially lead to probation revocation or modification, even if the person hasn't been convicted of a new charge. Here's a breakdown of the situation:

1. Probation conditions: Most probation agreements include a condition that the probationer must not violate any laws or be arrested. The mere act of being arrested can be considered a violation of probation terms.

2. Discretion of the court: The judge or probation officer has discretion in how to handle an arrest. They may choose to:

- Wait for the outcome of the new case before taking action

- Initiate a probation violation hearing based on the arrest alone

- Modify probation terms without revoking it entirely

3. Burden of proof: In a probation violation hearing, the standard of proof is typically lower than in a criminal trial. The court often only needs to find a "preponderance of evidence" that a violation occurred, rather than proof "beyond a reasonable doubt."

4. Context matters: The circumstances of the arrest, the probationer's overall compliance with other terms, and their history can all influence the decision.

5. New charge vs. probation violation: While the arrest may not yet have resulted in a conviction for a new charge, it can still be treated as a separate probation violation.

6. Right to a hearing: The probationer generally has the right to a hearing before probation can be revoked, where they can present their case and challenge the allegations.

In summary, an arrest can indeed lead to probation revocation or modification, even without a conviction. However, it's not automatic, and the specific outcome depends on various factors and the discretion of the court or probation officer.

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