What is Supervised Probation in Virginia?

When a criminal case is finalized in Virginia, the court can impose a sentence of incarceration, or a sentence of probation ("probation"). At that point, the court can either suspend some or all of the jail time (i.e. the defendant is not sent to jail), in order to favor the defendant with the opportunity to complete a supervised probationary period in lieu of serving all time in jail, and/or the court can impose active time (in jail) and a period of supervised probation . The basic concept of supervised probation is pretty straightforward—punish the defendant, but give him or her a chance at redemption by being allowed to serve a period of probation where they are supervised and have the opportunity to rehabilitate in order to avoid serving time in jail, or to have their time in jail reduced. A violation of the terms of probation can result in a return to the court to deal with the probation violation, possibly resulting in additional punishment. Our courts are generally familiar with the concept of supervised probation, and how it fits into the structure of the Virginia legal system in criminal cases.

Supervised Probation Eligibility

The Virginia juvenile court systems imposes different probation conditions and outcomes depending on the outcome of a child’s adjudicatory hearing and the legal consequences of the adjudication. A child may only be subject to supervised probation if a finding of delinquency is made. Delinquency is a legal concept that is not the same as guilt. A finding of delinquency means that the court found that a child committed an act that is against the law but does not necessarily mean that the child is guilty of committing an act. Again, a court orders supervised probation based upon a finding of delinquency. Only the circuit courts can adjudicate a child to be guilty of a delinquent act. The sanction of probation is only available in juvenile and domestic relations district court.
If a child is adjudicated as having committed a delinquent act that would be punishable as a Class 4 felony or below, the child will be placed on probation. The juvenile or domestic relations district court has a broad latitude in setting the terms of supervised probation. The terms may include anything that the court considers necessary to achieve the rehabilitative goals of supervised probation. The supervised probation term may last until the child is 18 years old. When the child turns 18, the supervised probation ends automatically, and the court should schedule a review of probation hearing at the next session of court.
The court also has the discretion to order a non-dispositional dispositional hearing for first-time misdemeanants. In these cases, the court may order only an intake probation. In other words, the court finds that the child is delinquent based upon the intake probation order and may not order the child to be placed on supervised probation. A first-time delinquent adjudication means that the child has never been found to have committed a delinquent act. The "delinquent acts" can be either status offenses or criminal offenses. A status offense is an act that violates statutes prohibiting certain acts by people under a certain age; criminal offenses, on the other hand, are violations of the Virginia criminal code. In any case, it is important to notice that the statutes providing for the disposition and ordering of probation use the word "may", which means that the court has the discretion whether to order probation.

Conditions of Standard Supervised Probation

Some standard conditions of supervised probation include:
Meeting with probation officers: In Virginia, all probationers must have periodic meetings with their supervising probation officer. This condition is typically imposed in all cases for both supervised probation and parole. While the frequency of these meetings can vary from case-to-case, it typically involves monthly or bi-weekly meetings with the officer.
Employment requirements: Another common rule for those placed on supervised probation in Virginia is that they obtain and maintain full-time employment. In some cases, employment is required even if someone is unable to work for health related reasons and needs to rely on disability payments. Employment can be with any employer provided that the work is legal and the employer does not deal in any illegal substances.
Travel restrictions: Similarly, the requirement that someone stay in Virginia is in place for all supervised probation terms. Unless permission is given by the Court beforehand, probationers are not permitted to leave Virginia. If they do, they run the risk of facing a show cause hearing back in front of the original judge. If the person is subsequently found to be in violation, they could be sentenced to additional jail time for breaking their probation.
Other Possible Conditions: In addition to the above conditions, probationers are also generally not allowed to commit any new crimes, have any firearms, or do anything that would cause their probation officer to report on them.

Other Conditions That Could Be Assigned

Beyond the obligations on the supervised probationer, the Court may impose additional conditions based upon individual assessments.
For instance, if a person is convicted of possessing a drug, or a substance associated with a drug, the Court may order them to participate in a substance abuse education program and/or to perform community service.
Another type of condition may be a requirement that the supervised probationer participate in an alcohol education program.
In more serious criminal cases, the Court may order that a defendant participate in a program or facility specifically designed to rehabilitate and/or educate the probationer.
In addition, a court may order a supervised probationer to make payments to one of several types of court funds, which include the Criminal Fund, the Sex Offender Fund, and the AIDS Fund, among others.

The Role of the Probation Officer

The supervision of an offender who is on probation in Virginia is often provided by a probation officer, as part of the adult probation system. The role of a probation officer is to ensure that the individual receives the supervision and accountability they are required to have, but also to encourage them to make positive changes in their lives, such as attending treatment programs and finding employment. To this end, the probation officer will meet with the offender on a regular basis, typically at least once a month.
Visits with a probation officer may be held in the probation office, or they could be hypothetical visits, where the offender calls the officer by phone. More frequent visits may be required, particularly if the offender has violated their probation or is considered to be at a higher risk of violating probation.
The information that is exchanged during meetings with a probation officer can have a significant impact on the amount and type of supervision the offender will receive. As such, it is important to be honest with the probation officer and respect their role in the supervision process. If you were honest and respectful with your probation officer, show them the respect you might show a judge in court.

What Happens if Someone Violates Probation?

Violating the rules of your supervised probation can happen fairly easily if you are unaware of them. For example, if a court has ordered you to remain at home between the hours of 10:00 p.m. – 6:00 a.m., and you walk out to your mailbox at 10:05 p.m. to drop off a bill, that constitutes a violation of a probationary rule that can have you appearing back in front of a judge.
As Virginia Deputy Attorney General William E. Barr III wrote in the Virginia Lawyer: "Defendants must abide by any condition or rule of probation that may be ‘reasonably related’ to preventing future offenses, protecting the public, and rehabilitating the offender." Unfortunately, when some defendants face a probation violation hearing, they may find out what the judge considers to be a "reasonable" probation rule.
For example, one client "Roger," a convicted sex offender, was placed on supervised probation for five years. Among other things, the probation condition called for Roger to reside in a tow away zone or a jurisdiction where he had written permission to be away from his residence. While Roger maintained an open line of communication with his probation officer, he was not aware that his plate had been logged as expired. The police set up a plate reader that sounded whenever Roger was recognized, and the police placed a hold on his vehicle for nearly two months before taking it to an impound lot. Roger was also charged with obstructing justice due to his failure to notify his probation officer of these facts .
Probation officers have a tremendous amount of discretion in the supervision of defendants on a daily basis, and they may not use the same judgment each time they encounter a similar situation. For instance, when "Roger" was re-sentenced for violating probation, the judge allowed him to serve the required additional time in unsupervised probation instead of incarceration. Roger demonstrated good behavior during the supervised probation and served without re-offending.
On March 26, 2012, the Virginia Court of Appeals rejected the argument that a defendant’s supervised probationary period could be extended without a formal hearing. A Chesterfield man’s supervised probation was extended after he was found to have spent the last 3 months at his father’s home without permission from his probation officer. At the probation violation hearing, "Damon" testified that he called his probation officer to inform him that he was spending time with his father in West Virginia, but did not ask for permission. The Virginia Court of Appeals held that, under Virginia law, the trial court cannot extend an original sentencing order without first holding a full sentencing hearing.
If you are charged with a probation violation, your attorney can present mitigating factors at a sentencing hearing, which the judge may consider when determining your new probationary terms. Depending on the circumstances, the judge may allow additional supervisions in unsupervised probation rather than a period of incarceration.

Legal Options and Rights for Probationers

Just because a client is on supervised probation does not mean that he does not have rights. He absolutely has rights. The rules for probation in Virginia can be followed to the letter, and still a judge could violate a defendant erroneously, leaving him with an improper charge of violation of probation, or a violation that’s longer than it should be, or one that’s too severe. There are due process requirements that we have found in the past were not followed. Under the Fourth Amendment, a person cannot be held more than 72 hours without charges being brought or without a judicial hearing. If no counsel is put forward, then that would be a Federal issue, and we would file for habeas corpus relief. It has happened in Va. In Chesterfield county, for example, at one particular court, we have found that, on occasion, they’ve kept people. Even someone from our office sat there in jail for six weeks without a hearing. It finally got resolved, but it should never have happened. If someone sees a violation of his rights, he has to follow it up. Unfortunately, some public defenders won’t do anything on it. But there are civil rights attorneys who will. Each case is completely different, and each potential violation of the rights has to be vetted individually with the attorney to see if there is indeed a potential claim under federal law.

How to Successfully Complete Supervised Probation

Here are some things you can do to make your experience on supervised probation easier:
Always pay your supervision fees on time, preferably when they are due.
Notify the probation officer (your "PO") of any changes of address or new employment.
Keep your residence and employment stable.
Be aware of your obligations:
Always go to your scheduled appointment.
Arrive early for your appointments so that you are not forced to wait.
If you have a court appearance (not related to a violation of probation), provide your PO with advanced notice and bring a court copy of the schedule change.
Call your PO in advance if you cannot attend a scheduled appointment – for example, because you are sick or have an emergency.
Be prompt in reporting to court (especially at a revocation hearing).
Be professional and courteous with treatment staff, law enforcement personnel and the court system.
Missed appointments, absconding and submitting inaccurate information can result in revocation of your probation and/or additional supervision requirements.
Read your Conditions of probation and be sure to consult with your attorney if you have any questions or concerns.
Meet regularly with your attorney to discuss the terms, rules and requirements of your supervised probation.
Very carefully report any new criminal charges to your PO.
Before reporting any new criminal charges to your PO, speak with your attorney about how to best approach this and your obligations to report.
Remember that the court, your PO and the probation department are tasked with monitoring your compliance.
If you are not in compliance and need assistance treating or rectifying your circumstances, always reach out to your PO with the explanation and steps you are taking to remedy the situation.
Be up-front and honest with your PO and be ready to answer some difficult questions.
The key is to put on your best impression and to demonstrate, however possible, your motivation to be compliant, particularly at a revocation hearing.

What Happens After Completion of Supervised Probation?

The completion of supervised probation can have significant long-term implications, especially in terms of record sealing or expungement. In Virginia, individuals who successfully complete their probation for certain misdemeanors may qualify to have their record sealed, meaning that the general public cannot access any information about the conviction. While this doesn’t mean their arrest record is erased entirely, it does provide a layer of privacy that can help individuals in employment or housing applications, as they are not required to disclose the sealed conviction.
Additionally, in some cases, sealed convictions can be expunged after five years . However, since only certain misdemeanors are eligible for sealing, and only under certain circumstances, it’s always advisable to consult with an experienced criminal defense attorney to understand the implications of your probation requirements and what is or is not possible following your probation period.
In sum, the long-term implications of supervised probation can be significant, or minimal—depending on the nature of the probation, the offense, and a variety of other factors set out by the Virginia Code. It’s also important to recognize that fully complying with the probation requirements doesn’t automatically mean it will or even can be terminated. But again, a knowledgeable criminal defense attorney can help clients maneuver these challenging situations and help them remain on the right side of the law.