A Violation of Probation (VOP) can be either substantive or technical. A substantive violation means a new criminal charge and a technical violation means that a condition has been broken or not followed but there is no new criminal offense.
The law applicable to technical violations of probation (VOP) will change, hopefully for the better on July 1, 2016. Florida Statutes section 948.06 will be changed to add new language that allows the Chief Judge of the Circuit in consultation with the State Attorney and Public Defender to create alternative sanctions for alleged technical VOPs. The law does not apply to substantive violations. (technical v. substantive)
In defending violations of probation, a confusing issue for clients is when does the probation period end if there has been a violation affidavit or report filed and a warrant issued, or a warrantless arrest is made, or a notice to appear on the VOP is created. Until recently, the advice by a VOP defense attorney would be that the probationary period is tolled as soon as that warrant is issued, arrest is made or notice is issued.
Recently, for the first time in this firm's history of defending violations of probation, a violation of probation report or affidavit included a speeding ticket as an alleged new law or substantive violation. Then, the judge then issued a warrant with no bond, presumably after reading this report or affidavit of violation of probation. They call it criminal defense practice for a reason, everday there is something new. I've been involved in the system since 2001 and this was a new one on me.
Many criminal or violation of probation cases start when drugs are found after search at a traffic stop or or other offenses are discovered via the stop such as violation of a curfew or license restriction. This is particularly problematic for people on probation. New criminal law violations are substantive violations, everything else is a technical violation of probation.
One option for sentencing in a criminal case is probation. Many people are not aware that you can request the court to terminate your probation early by filing a motion for early termination of probation. Hopefully this blog will be shared with the family of a probationer. A probationer does have to file a written motion in the court and request a court hearing. Most judges will consider the motion to terminate probation early after half the time is served and all conditions are completed. Some lawyers, including myself, offer this service.
What is the difference between a technical and a substantive violation of probation? This is a common question that I receive when a family is facing a probation violation. There are basically two ways a person can violate probation. One type of violation of probation is called is substantive and the other is technical.
Probation can be revoked upon a finding that a violation is willful and substantial. The State has burden to prove by the greater weight of the evidence that the probation violation is willful and substantial. This standard or burden of proof is also called preponderance or "more likely than not".
While the law engenders many questions, one of the most common areas of confusion for probationers is the law on violation of probation or VOPs. Violation of probations can be alleged for either technical or substantive reasons. A new law violation, such as a new charge for possession of marijuana or DUI while on probation, is a substantive violation. Meanwhile, an example of a technical violation of probation would be testing positive for marijuana while on probation or otherwise having a dirty urine or screen. Failure to pay restitution or failing to complete community service hours are other examples of technical violations of probation.