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Pre-Hearing Release for Probation Violation Charges?

One question we are often asked in the context of Arizona probation violation proceedings is whether the defendant is entitled to bond or release while the charges are pending. Typically, the courts and/or prosecutors try to avoid making a bond or release available for a party who has been arrested on a probation violation.

But successful efforts to keep probationers in jail give the probation department too much leverage in the probation violation process. It essentially allows the probation department to force an admission to probation violation charges. They can essentially hold the probationer in custody for so long as the probationary intends to challenge the probation violation charges. The only way to get out is to admit to the violation.

Fortunately, there are some cases in which the probation violation charge may not be sufficient, in and of itself, to hold the person in custody.

Certain types of violations will almost never allow for prehearing release during probation violation proceedings. For example, if a probationer is accused of violating Term #1,i.e., the probationer is accused of committing a new crime, the probation violation petition will almost always lead to a non-bondable status. But in other cases, on a case-by-case basis, release may be appropriate. The probation officers and prosecutors argue that no bond or release should be available pursuant to the Rules of Criminal Procedure relating to the revocation of bond after conviction. They argue there is no right to post conviction release. But Rule 7.2 of the Arizona Rules of Criminal Procedure doesn't go quite that far. Instead, Rule 7.2 dictates that a person may not be released after conviction where there is "a reasonable probability" that the person will be sent to prison.

For many private probation violation proceedings, perhaps even the majority of such proceedings, there is a likelihood that the person will be reinstated on probation, rather than sent to prison. It is therefore perfectly arguable that the person in the run of the mill case be given bail, or a release of some other kind, while the probation violation proceedings are pending.

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