Alleging Probation Violations in a Post-JRA World

How specific does a probation violation report need to be about which condition the probationer allegedly violated? Until last week, I would have said “not very.” A new case from the court of appeals has made me change my answer. The case is State v. Tindall. In it, a woman was ordered to attend a substance abuse program as a condition of probation. Less than a month into the program the defendant was caught partying and doing drugs with other program residents. She admitted to “snorting ten lines of cocaine.” Slip op. at 3. In response, her probation officer filed a violation report alleging two violations: (1) a violation of the “not use, possess or control any illegal drug or controlled substance” condition; and (2) a violation of the “participate in . . . treatment . . . and comply with all further therapeutic requirements” condition.  Both violations occurred in February 2012—well after December 1, 2011, and thus subject to the revocation limitations of the Justice Reinvestment Act. Under the JRA, revocation is allowed only for a new criminal offense, absconding, or for a defendant who has already received two periods of confinement in response to violation. The trial court nonetheless revoked the defendant’s probation, recasting one of the alleged technical violations (the drug use) as a new criminal offense (probably possession of a controlled substance) and then using it as a justification for revocation. The court of appeals reversed, holding that revocation was not allowed because the defendant was not [...]