New Sentencing Laws for Probation Violations

Beginning July 1, 2021, the Commonwealth of Virginia made some significant changes in the way the courts handle probation violations. These changes are important to understand for those currently on probation, as well as for their family and friends supporting them in the probation period.

Previous Probation Law in Virginia

If you are convicted of a crime in Virginia, the court has the discretion to sentence you to probation based on several factors. Probation is sometimes called “open-air jail” because, although the offender is not incarcerated, they must still submit to restrictions on their behavior, including:

• Refraining from alcohol
• Maintaining employment
• Reporting to a probation officer
• Submitting to drug testing

If you violate your probation, you may be charged with a new crime of Probation Violation and any or all previously suspended jail time from your original sentence can be imposed if you are found to be in violation.  The judge can also impose additional terms and conditions of probation if you are found guilty.  Before July 1, 2021, defendants who were found guilty of Probation Violation were subject to long jail sentences, even if the violation was a minor technical violation.  It is this issue that led to Virginia’s passing of HB 2038.

Prior to July of 2021, Virginia was one of the few states with no restrictions on handling probation violations. The state legislature noted that too many people were being held on lengthy probation violation sentences unrelated to the original crime, which had been imposed for technical violations of their probation. Technical violations can include:

• Failure to stay in contact with a probation officer
• Failing to report a change of address or employment
• Not maintaining regular employment
• Not reporting an arrest to the probation officer within three days
• Other minor non-criminal behavior

HB 2038 was enacted to correct these problems.

The New Probation Rules

The previous rule allowed the courts to sentence an offender to as much probation as they wanted to give. Now, the new laws limit the amount of total probation to a maximum of one year for a misdemeanor and five years for a felony. This gives the offender a chance to finish the probation in a shorter period and get back to their life without the sentence hanging over their head.

The new rules also restrict how long an offender can be sentenced for a technical violation of probation. Previously, the judge was free to send the offender to jail for as long as deemed fit. Now there are fixed and very short sentences specific to probation violations.

• First violation – No sentence of incarceration may be imposed.
• Second violation – No sentence of more than 14 days may be imposed.
• Third or subsequent violation – the court may impose whatever sentence might have been originally imposed for a third or subsequent violation, including imposing any or all of the previously suspended jail time from the original sentence.

The legislators noted in the bill that the cost of maintaining an individual in prison for a single year is $34,000, while the cost of supervised probation is $1,300. There is no benefit to sending someone back to prison for non-criminal activities.

When You Need an Attorney

These new rules are more beneficial for those on probation. However, they still carry consequences and implications. A two-week jail term may cost you the job you worked hard to get. A 30-day sentence can be the difference between having a place to live and being on the streets. It is possible that the reasons for your violation were not entirely within your control.

If you are on probation and facing a violation, you need a defense attorney on your side. At Shannon and Associates P.C., we know the new rules and their potential impact on your life. We are ready to help you stay out of jail and on track. Call the Chesapeake criminal defense lawyers at Shannon and Associates P.C. at 757-228-5529 to discuss your concerns. Let us help you with your options and alternatives under the new Virginia probation rules.