If you violate one or more of the terms of your probation you have certain rights. If you violate your probation indirectly such as failing to report to your probation officer or failing a drug test a bench warrant will be issued for your arrest. If you violate your probation directly such as being charged with a new crime or being arrested you have a right to a pre revocation hearing within 72 hours. This hearing is called Gagnon I Hearing where a judge will determine whether you should be incarcerated pending your full hearing on the matter which is called a Gagnon II Hearing. If the judge is so inclined, he will release you until your full hearing. If not, you will be held incarcerated for several months until the Gagnon II Hearing, which is known as a “detainer.”
At the Gagnon II Hearing the judge will determine if you violated the terms of probation based on the facts presented by your attorney, the District Attorney, the police as well as your probation officer. The burden of proof is lower for a Gagnon II Hearing than for a criminal trial. In a criminal trial the District Attorney must prove beyond a reasonable doubt that you committed all the offenses you are charged with. However in a Gagnon II hearing the burden of proof is lowered to the preponderance of the evidence which means that more likely than not you violated the terms of your probation.
If the Judge does find you violated your probation, he or she will give you a new sentence on the case for which you were on probation for. In determining how to sentence you the Judge will consider whether you are a threat to society, and if you are not, can you be rehabilitated through probation. Your Attorney will try to show that you can be rehabilitated by presenting favorable evidence such as your employment history, or a strong family support system.
If you have a bench warrant or are facing a Gagnon I or II Hearing please contact Gregory J. Spadea of Spadea & Associates, LLC at 610-521-0604. He can negotiate a time and place to turn yourself in to the Sheriff and help you get the bench warrant rescinded and get you a new court date.
