Probation violation hearings- Fairfax criminal lawyer addresses categorizing them as technical offenses as much as possible

Probation violation (PV) hearings often feel like having hot needles stuck in a Virginia criminal defendant’s eyes. As a Fairfax criminal lawyer, I have successfully defended hundreds of people accused of PVs, including successes in arguing failure to prove the alleged violation, narrowing down the maximum possible penalty for a proven violation, and obtaining the most favorable possible resolution possible, which sometimes involves rescheduling the hearing for the defendant to demonstrate further relevant self improvement and better compliance with probation conditions. Recently, the Virginia Supreme Court breathed full life into the 2021 Virginia law that makes a slew of initial PVs technical violations that are not eligible for active incarceration for the first offense. Commonwealth of Virginia v. Delaune, ___ Va. ___ (Dec. 14, 2023).

What are the minimum Virginia probation conditions?

When a Virginia court sentences a criminal defendant, the judge often includes a suspended jail period and a suspended fine portion in the court’s sentence. When either is suspended, a probation period is set. The minimum conditions for adhering to probation are being of general good behavior (also known as uniform good behavior), following the terms and conditions of the sentence, and timely paying the court fine and costs (which of course are terms and conditions of the sentence). When the court finds a probation violation, the defendant then has a record of such a violation and gets sentenced for it. 

What is meant by “general good behavior”?”

General good behavior is a condition of all Virginia criminal sentences the involve a probation period. General good behavior extends beyond having to obey all criminal laws. In other words, being on probation is no picnic, including when charged with a probation violation. Too often, too many Virginia probationers do not think long and hard enough about the consequences of being found in violation of probation. The “condition of good behavior is implicit in every order suspending sentence, is a condition of every such suspension, whether probation is provided for or not, and applies ‘whether expressly so stated or not.” Collins v. Commonwealth of Virginia, 269 Va. 141, 146 (2005) (quoting Coffey v. Com., 209 Va. App. 760, 762–63). Additionally, the Virginia Supreme Court Form 10 for contents of Circuit Court sentencing orders provides that: “The defendant must be of good behavior for the entire period of any suspended sentence ordered.” The Virginia “Supreme Court recognized that the boundaries of good behavior are not necessarily co-extensive with those imposed by law.” Holden v. Commonwealth, 27 Va.App. 38, 43 (1998). A Virginia “court may revoke a defendant’s suspended sentence for substantial misconduct not involving violation of law. This Court has held that iniquitous, but not necessarily illegal, conduct justifies a court’s revocation of a suspended sentence.” Id. at 44. “[I]niquitous, but not necessarily illegal, conduct justifies a court’s revocation of a suspended sentence. ” Id at 42. 

What revolutionary change was made in 2021 to the Virginia probation violation sentencing scheme?

In 2021, the Virginia law changed to place substantial limits on jail time for a probation violation involving enumerated technical violations of probation. What are technical violations? Technical violations “means a violation based on the probationer’s failure to (i) report any arrest, including traffic tickets, within three days to the probation officer; (ii) maintain regular employment or notify the probation officer of any changes in employment; (iii) report within three days of release from incarceration; (iv) permit the probation officer to visit his home and place of employment; (v) follow the instructions of the probation officer, be truthful and cooperative, and report as instructed; (vi) refrain from the use of alcoholic beverages to the extent that it disrupts or interferes with his employment or orderly conduct; (vii) refrain from the use, possession, or distribution of controlled substances or related paraphernalia; (viii) refrain from the use, ownership, possession, or transportation of a firearm; (ix) gain permission to change his residence or remain in the Commonwealth or other designated area without permission of the probation officer; or (x) maintain contact with the probation officer whereby his whereabouts are no longer known to the probation officer. Multiple technical violations arising from a single course of conduct or a single incident or considered at the same revocation hearing shall not be considered separate technical violations for the purposes of sentencing pursuant to this section.” Virginia Code § 19.2-306.1(A). 

Is a Virginia judge permitted to designate a technical probation condition as a special condition, the violation of which does not limit how much of the suspended sentence is imposed?

The foregoing statute limiting sentencing for a probation violation limited to violations of technical conditions likely did not sit well with plenty of judges, who were accustomed to having wide leeway in imposing suspended jail time for PV. The Virginia Supreme Court has made clear that a judge cannot avoid the Virginia Code’s limits on punishing technical probation violations by designating at sentencing any technical probation condition as a special probation condition. Delaune, supra. Delaune’s PV were technical, consisting of illegal drug use and absconding from probation supervision. Even though Delaune’s sentencing judge banned  illegal drug use as a special condition, Delaune confirms that it was a technical condition that was therefore subject to the sentencing limits of Virginia Code § 19.2-306.1(A). 

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. Within moments of meeting with Jon Katz, you will know you are in good hands with him. Call 703-383-1100 for your free in-person confidential consultation with Jon about your court-pending prosecution.