Most of the time, people who are ready to resolve their criminal case without trial opt for some form of probation in lieu of jail time. While I do not have statistics on the failure percentages, I know they are high. I would think that one has better odds of beating the house in a game of craps than successfully completing a term of probation. It can be done, but there are a few things one should keep in mind before choosing to accept a plea offer that includes this type of sanction.

Prior to taking a probation deal, think about your lifestyle and your ability to follow someone else’s rules. Once you are in the system, it is very difficult to get out. Probation assumes that you can and will follow the law at all times, follow all of the rules set forth in your Probation Order, show up for monthly meetings on time, and pay a monthly fee. Additionally, Felony Drug Offender Probation also requires a substance abuse evaluation and that any recommended treatment be followed; a curfew; and random drug tests. If any of these things could cause an issue for you, probation may not be your best alternative.

Probation generally lasts anywhere from 6 months to several years. Drug Offender Probation usually lasts for two years. If you get caught breaking one of the rules, even on the last day of the last month of your probation term, your probation will be violated. You may be sentenced up to the maximum sentence for the original charges. While you get credit for any time you served in jail against that sentence, you will get no credit for the time spent on probation.

Sometimes probation is offered as a “second chance,” so that a defendant can prove to the Court that he can stay out of trouble and follow the rules during the term. This term often includes classes or community service that must be completed as part of the punishment and/or rehabilitation process.

Other times, probation is offered as a way to resolve a case when going to trial is not necessarily in the State’s best interest. It is a way to monitor a defendant during the term.

In either event, once an alleged violation occurs, the whole game changes. First, a defendant is not entitled to a bond in a violation of probation (VOP) case like she is while the underlying charge is pending. In other words, a defendant will usually sit in jail until the VOP is resolved. This usually takes at least a month and can sometimes take much longer.

Second, a prosecutor’s burden of proof changes during a VOP trial. The State must no longer prove the elements of the crime against you beyond a reasonable doubt. Instead they must prove by a preponderance of the evidence (the much lower civil standard of “more likely than not”) that you committed the alleged violation. The facts of the original case are not determinative of whether you have violated probation, but may be considered when the judge re-sentences you. It is through this reduced standard that the State is able to re-capture a second bite at the apple with regard to defendants they might have liked to had incarcerated originally.

Finally, the finder of fact is different in a VOP. The judge decides the facts, not a jury of your peers.

For these reasons, in situations where you have a choice, it is important to determine up front whether you can handle a probation sentence. While a term in the county jail is never the sexy alternative, it could end up saving you time and money in the long run. In all likelihood, if you violate probation you will get more time than the prosecutor would have agreed to the first time around. Its a big decision which will impact your life and the lives of those around you. Take it seriously, or it could come back to haunt you.