July 13, 2007 By Wallin & Klarich

A parolee that is arrested for a parole violation will have a “parole hold” placed on him or her at the time of arrest. This parole hold makes it so the parolee cannot be bailed out of custody.

If the parolee is arrested for a NEW CRIME, it is best to have the parolee waive his right to a speedy probable cause hearing until the court case is disposed of. The parolee will need to sign a waiver and when the new case is complete, you contact the board of prison terms and speak with the person in charge of setting the hearings and ask to schedule the hearing.

If the criminal case was won or dismissed, this is good evidence; however, the burden of proof for a criminal case is beyond a reasonable doubt. In a parolee hearing it is a preponderance of the evidence (or a tip of the scale). So, just because the criminal case is dismissed or a not guilty verdict is returned, the parolee is still not guaranteed that the parole charges will be dismissed.

If the parolee was convicted of the new case or pled guilty, most any defense attorney will know to make sure to ask that the time is ran concurrent with any parole violation. Then when you call to schedule the probable cause hearing and get a date for that hearing, you will speak with the Commissioner conducting the hearing and let them know what time they received the new crime. With a new conviction, it is almost guaranteed that the parolee will receive a 1 year sentence and it will be run concurrent to the conviction sentence. But if the new crime the parolee pled to was a misdemeanor and he or she received less than 1 year, depending on the circumstances at the probable cause hearing, you may want to set it for a revocation hearing if you are not able to get the Commissioner to give the parolee something less than 1 year. (ie. The same time they received on the misdemeanor charge).

The probable cause hearing is a hearing to determine if there is enough evidence to keep the parole hold. Most likely the answer is yes. The probable cause hearing is not a hearing to get the charges dismissed against the parolee. You can present any evidence about the parolee at this hearing to help lessen the sentence. The Commissioner will take everything in consideration and make an offer up to 1 year return to custody time. The parolee will accept or reject it. If he accepts it, he will not have a full revocation hearing. If he rejects it, the next step is a full revocation hearing.

If you have evidence to exonerate the parolee from the violation of parole allegation, you can discuss this at the probable cause hearing with the Commissioner, however, the charges will likely not be dismissed at this hearing.

The parolee will have to reject the Commissioner’s offer and request a full revocation hearing. The Parole Officer will be there to testify and the arresting officer if there is a new crime. At the revocation hearing you will be able to call witnesses to exonerate the parolee and also character witnesses that can come in and say positive things about the parolee. For example, an employer whom the parolee was working for can come in and say the parolee was working for me for the past year and he/she was a great employee and has a job when he/she is released. At this hearing the Commissioner does like to hear that the parolee will be a productive member of society when he/she is released. Also, a parent may come in and say that the defendant has a place to live when he/she is released or some other documentation showing where they will live. Also, you can bring out positive evidence from the Parole Officer as to how good the parolee was doing before the violation. (Sometimes the Parole Officer’s hands are tied and they may HAVE to violate the parolee even though they do not want to-so speak with the Parole Officer to see if there is anything positive you can bring out).

At the revocation hearing the Commissioner has the authority to dismiss allegations of violation against the parolee. With the allegations being dismissed, this will lessen his/her time to be returned to custody. Most of the time due to the very low burden here, at least one of the allegations usually stick. However, what goes in the parolees favor is that you were able to get others dismissed and this is where the attorney will then argue to minimal custody time. Now understand that depending on what the parolee’s original crime was that sent him or her to prison in the first place will determine whether or not they get “flat time” meaning no good time or work time credit or whether the parolee will be eligible for “half time” or credit for good behavior. The attorney will be told this at the original probable cause hearing and there is no negotiation on this. The only advice I can give is to make sure the Commissioner is correct. I have gone to a revocation hearing due to that issue alone. Parolees do not like to lose their half time.

Once the parolee is released, any time that he spent in custody will “toll” the time of his parole. Meaning that when a person is sent to prison and they parole, they can be on parole anywhere from 3 to 5 years when they are released. If the parolee was out for 1 year and then returned to custody for 6 months, when he or she is released from his or her parole violation they will have at a minimum 2 years left for parole.

With what can be accomplished at these hearings with an attorney, it is advisable to have an attorney to help the parolees fight these charges. The parolees, even though they are given a copy of Title 15 in custody, are not attorneys and usually do not know how to bring out the evidence that is in there favor correctly to get the charges dismissed. That is why it is advisable to have the attorney there to fight for the parolees rights. These hearings are very difficult to win for a parolee due to the low burden or proof, but with an attorney to fight it from a legal stand point, the parolee stands a chance of success.

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