Interviewer: What are the programs or some options that people have? Are there any diversionary programs available?
Randy Berman: Yes. In most jurisdictions throughout Florida including Palm Beach County, they have drug courts specifically set up to handle simple drug possession cases; both misdemeanor cases and felony cases. What they do if you opt to go into the drug court is require you to go through substance abuse evaluation and recommended treatment for six months to 18 months. The program requires random drug testing and there are other conditions that may be imposed like attending AA or NA meetings or doing community service hours.
But if you’re successful in completing these drug court programs the cases are dropped. If the case is dropped then you’re entitled to seek a sealing or expunging of that record either keeping it from public view or wiping it out.
The Process of Probation in the State of Florida
Interviewer: What warrants probation?
Randy Berman: Probation is normally reserved for first time offenders and generally for non-violent crimes. If you don’t opt for a drug court there are other diversion programs available for drug offenders. That might include a sentence to a drug treatment inpatient program, a drug treatment outpatient program.
There is what’s called drug offender probation which is separate and distinct from drug court. It generally has the same types of conditions but you don’t get the dismissal or nolle prosse with that type of disposition of your case.
There are Two Categories of Probation Violation: Technical Violations and Subsequent Violations
Interviewer: What happens if someone were to violate probation?
Randy Berman: Depending on the nature of the violation it could be a reinstatement of your probation or it can be a new sentence that imposes incarceration. They categorize probation violations basically into two types; technical violations and subsequent violations. An example of technical violation would be failure to pay your costs or fine, failure to meet your probation officer on a scheduled day, failure to honor your curfew; if your probation officer does a visit and you’re not at your home when you’re supposed to be. Those technical violations generally don’t result in severely harsh sentences.
Subsequent violations are treated more seriously. Subsequent violation would be getting charged with a new crime, testing on your urinalysis with dirty urine. Those types of violations could result in extending the probation or getting incarceration. Because probation violation it is a new charge and the difference between the probation violation charge and your underlying drug charge is that for probation violations you’re not entitled to a jury trial, you’re only entitled to a trial court judge.
The Burden of Proof on the Prosecutor is Significantly Less for a Probation Violation than for a Criminal Case
Also, the burden of proof on the prosecutor is much less for a probation violation case than it is for a criminal case. A criminal case the prosecution has to prove that you’re guilty beyond and to the exclusion of every reasonable doubt. The burden of proof for probation violation is what is called by the preponderance of evidence. Preponderance of evidence by definition is a little more likely than not, or better than 50%. The standard is lowered which makes it easier to get a conviction and the ability to have a jury of your peers decide your fate on a probation violation is not very easy.
Violating Probation by Getting Rearrested Gives a Person 2 Cases to Contend With
If you violate your probation with a substantive claim that you picked up a new charge, not only will you have to address the new charge but you also have to address the violation probation case. In essence violating probation by getting rearrested gives you two cases to contend with.