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How Much Time Will Someone Get For A Technical Violation Of Probation?

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

This is one of my favorite questions simply because the phrase “Technical Violation” is so misunderstood. For example, I can’t tell you how many times I’ve been in a courtroom and I’ve heard the state attorney, the defense attorney, the probation officer, and even the judge say that someone is before the court at a violation of probation arraignment or at a violation of probation evidentiary hearing, either one, and they will refer to the violation as technical violations. That’s completely wrong. Let me explain why. A violation of probation must be two things. Each violation alleged on an affidavit of violation should be a violation that is provably willful, not by accident, and substantial, not something minor. Yet I’ll go in the court and I’ll hear people talk about someone owing $660 in court costs or they haven’t completed the last three sessions of their counseling as a technical violation.

That’s not accurate because by case law, what the judges at the appellate level have decided, if something is a technical violation, then it is not a willful and substantial violation and the person involved, the defendant, cannot be punished for a technical violation because by its very nature, it is neither willful nor substantial. This is really important simply because I believe that lots of people are being improperly punished and sentenced for violations of probation and violations of community control that are technical in nature and therefore since they are not willful and substantial, are unlawful grounds for which to find somebody in violation and then that person gets sentenced. That’s not correct legally, it’s entirely improper.

Finally the question involved how much time, and the answer is I don’t know because the questionnaire didn’t tell us what they are charged with, whether or not there’ve been any previous violations, what types of violations are alleged, whether there is a new law violation, whether it’s a urine sample that came back positive until we know these types of things, we can’t even begin to guess and how much time someone will be sentenced to if in fact they are even sentenced.

Will I Face Jail Time For A First Offense DUI Charge Or Can I Handle It Safely By Myself?

A lot of people take a look at what they consider to be the law online when they are arrested for a DUI charge. After reading this, many people conclude they don’t have a case and so they just show up to court on their first court date after they are released from jail and when the judge ask how they plead, they say guilty or no context. The problem with that is that DUI is the number one case where first offenders get courthouse surprise. Since they have not filed a notice of discovery, which in the Florida, you can use to acquire the state to give you evidence, the person does not know what is in all of the police reports. I’ve run across many people who think that the probable cause statement that they have along with a DUI citation is all of the evidence that there is. That’s not true.

There are all types of evidence. It’s important to know what that evidence is because each judge and each prosecutor has certain things that they dislike just about every type of criminal case that comes through the system. When a certain factor rises, and this is most common in DUI, where they would normally ask for probation, they’ll ask for a special condition of jail time. Imagine someone standing in front of the judge who is entirely remorseful, they want to do the right thing, they’d plead no contest or guilty, and then when the state asks or rather the judge asks the state what their recommendation is going to be, imagine how that person feels when the state rattles off probation and terms of probation that they would like to see in the sentence and then opens their file, asks the judge to take a look at a certain section of an offense report or the Florida Uniform DUI Packet, perhaps the bodycam video, whatever, the judge does so and then the state uses that to justify a request for 30, 60 or even 90 days in jail on a first offense DUI.

I’ve seen this happen in the courtroom more times than I can count. In discussions with my colleagues, it’s something that all of us have seen. Someone goes to court, they try to represent themselves, they try to do the right thing but because they don’t know what they don’t know, they find out that ignorance is not bliss. Ignorance is painful. The internet contains a great deal of information that is not relevant to their particular case and most certainly does not deal with the specific facts of their case. This is critical. The facts of a case are one of the most important aspects of plea bargaining and people who are first offenders with DUI charges are not experts in criminal law plea bargaining.

Even with the first offense, no matter what the criminal charge is, there is an old saying that applies to laypeople and it goes like this. A lawyer who represents himself has a fool for a client. Consider that if a lawyer would be a fool, self-representation, and their expert with knowing the law, the rules of evidence, the statutes, the rules of procedure and so on, where does that leave a layperson? Frankly in my experience, it leaves them very vulnerable to courthouse surprise and unexpected jail or in some cases, even prison sentence where they and their families are just destroyed emotionally, financially and in some cases, family members have committed suicide over these types of things.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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