Probation officers in Virginia wield tremendous power. Fairfax criminal lawyer says to heed their power

Probation officers in Virginia wield tremendous power. As a Fairfax criminal lawyer, I experience their power in writing presentence reports for Virginia Circuit Court judges, supervising their probationers, notifying judges of alleged violations of probation, and testifying in court about their probationers. Regardless of how a Virginia criminal defendant feels about the criminal justice system, the function of probation agents, or their own probation agent, a defendant is at their own peril to write their own rules about how to deal with the probation office and probation agents. Yes, I myself as a Fairfax criminal lawyer view the criminal justice system as overcriminalized, overly harsh and often insufficiently focused on providing enough due process to defendants. I encourage people to seek legislative and systemic changes to make the criminal justice system more just for criminal defendants. At the same time, as an attorney and simply looking at the matter realistically, I am not going to tell any criminal defendant to do anything other than to comply with their probation agent, unless timely challenging that probation agent’s directions or actions to their supervisor or the court before the time compliance is due. I encourage my Virginia criminal defendant clients to timely notify me when they are having a challenge with probation or their probation officer, because often I can give even simply advice and assistance that prevents the matter from snowballing into something serious or even beyond control.

Treat your presentence investigation report with full seriousness and respect

Virginia criminal defendants typically start their dealings with probation officers either after entering a guilty, no contest or Alford plea to a felony charge in Circuit Court that is followed by an order for the preparation of a presentence report by the probation office, or by being sent directly to probation after sentencing when a presentence report (PSI or PSR) is not involved. When a judge orders a presentence report, check with your Virginia criminal lawyer about timely checking in with the probation office to start the PSR process. Check with your lawyer about what you should and should not say during the PSR preparation process. In Fairfax, for instance, the questionnaire that the probation officers provides the defendant for the PSR preparation may include a page saying that the defendant must complete the page about the defendant’s version and view of the events of the convicted criminal charge. Such a directive flies in the face of your Fifth Amendment Constitutional right to remain silent (which does not disappear with a conviction) and your Sixth Amendment right to assistance of a lawyer, to the extent that the probation agent’s oral interview with you is going to insist on your version and view of the convicted event. On top of that, a Circuit Court judicial opinion in Fairfax permits Fairfax probation agents to conduct their PSR interviews with defendants without permitting them the right to have their lawyer present during that meeting. Such a judicial directive challenges the defendant’s ability to be able to fully understand and comprehend what is being discussed during such a meeting and to avoid confusion. Thankfully, federal probation agents permit the presence of counsel at such meetings, and probation agents in other Virginia counties often permit such counsel presence. On top of that, if I ask the Fairfax probation agent to permit me to be present during such a meeting, the worst that happens in response is a denial of such a request. Be aware that anything you say orally to a probation agent — or anyone else for that matter — can be misunderstood, misconstrued and misreported. Talk with your Virginia criminal lawyer to assure that you are approaching your PSR interview with the probation agent with full clarity, honesty and conciseness. As to honesty, silence ordinarily is not dishonest; talk with your attorney about which probation agent questions to refer to your lawyer.

How and when to report new criminal charges to your Virginia probation officers

A standard condition of supervised probation is for a convicted defendant to timely report any new criminal charges to their probation officers. Ideally, I want my clients immediately to tell me of any new criminal charges to give me an opportunity to provide such reporting. I tell my clients that if their probation officers asks for any non-public details about their new criminal charges, to refer that to me. When charged with a crime, you are presumed innocent and maintain your Fifth Amendment Constitutional right to silence and Sixth Amendment Constitutional right to counsel. By a criminal defendant’s having their lawyer address their new criminal charge to their probation agent, hopefully the lawyer can better convince the probation agent and the court (if necessary) to simply wait for the disposition of the new criminal prosecution rather than to revoke probation (and incarcerate), or to impose any sanctions or enhanced probation supervision conditions pending the outcome of the new criminal case.

Virginia probation officers have wide latitude in interpreting your sentence and in issuing “reasonable” instruction

The Virginia Court of Appeals has confirmed in no uncertain terms that Virginia probation officers have wide latitude in interpreting your sentence and issuing reasonable instructions. The Court of Appeals underlined this in okaying a probation agent’s requirement to undergo mental health treatment for a defendant where the judge’s sentence only required a mental health evaluation. Shifflett v. Virginia, ___ Va. App. ___ (July 16, 2024) (en banc reversal of defense-favorable three-judge panel opinion).

How do I avoid a Virginia probation violation charge and conviction?

As a Fairfax criminal lawyer who has defended against hundreds of probation violation charges, I know that the recipe for avoiding probation violation charges and convictions is simple, but not always easily followed. Much of it involves the golden rule, including simply timely responding and reporting to your probation officers as required, on top of not violating any crimes, including not illegally using drugs. Treating your probation agent with respect and compassion can go a long way. Whether or not your probation agent talks and works with you respectfully, many aspects of their job are challenging and stressful. Consequently, if you do not stand out to your Virginia probation agent as anything but compliant with your sentence and your agent’s instructions, your agent is more likely to focus on their other probations for possibly firm treatment.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia criminal, felony, misdemeanor, DUI and drunk driving prosecutions. Jon Katz usually will offer to meet with you within a day of your contacting us for your free in-person confidential consultation about your court-pending case, by your contacting us at 703-383-1100, info@BeatTheProsecution.com , and (text) 571-406-7268. Jon is among the very small number of Virginia criminal defense lawyers who have both attended the essential Trial Practice Institute of the National Criminal Defense College (also known as Macon; two weeks), and Trial Lawyers College (four weeks). Hear out weekly Beat the Prosecution Virginia criminal defense podcast.