Question: Have I violated probation by not notifying my probation officer that I
Ashley was convicted of
DWI and as part of her sentence received 12 months of supervised probation.
At the start of her probation, Ashley was living with her sister in a
house in Forsyth County. For the first 7 months of probation, Ashley was
a model probationer and did everything she was told to do by her probation officer.
After an altercation with her sister, Ashley was forced to move out of
the house she was currently living in. She moved in to her boyfriend's
house that was also located in Forsyth County. Upset about the fight and
stressed out about the move, Ashley missed her next probation meeting
that was scheduled for the day after she moved. The probation officer
drove to the sister's house and inquired as to Ashley's whereabouts.
Ashley's sister informed the PO that she did not know where she had
gone but that she was kicked out of her house.
Ashley finally called her probation officer 10 days after the move to check-in
and notify the PO of her new address. Ashley then continued with her probation
and was back to being a model probationer.
A month after she had moved and after she had started back with her normal
probation duties, Ashley was served with violation report and a hearing
date that stated she had violated her probation by absconding. At the
hearing, the probation officer recommended revocation of probation based
on the fact that he had marked Ashely as absconded 3 days after he attempted
to contact her at her sister's residence and was unable to do so.
Is this proper? What is the definition of absconding?
Probation violations come in all shapes and sizes and most answers regarding
sentencing for violations involve a case-by-case fact specific analysis.
There are numerous ways to violate probation, such as failing to appear
at a scheduled meeting, failing to pay certain probation fees, or failing
a drug test. The two most severe violations are being convicted of a new
crime and absconding. The penalty for committing either of these two violations
may be revocation of probation at which point the judge has the discretion
to enact the original sentence that was suspended when probation was initially ordered.
The factual scenario above deals with the violation of absconding. G.S.
15A-1343(b)(3a) states that all probationers will not "abscond, by
willfully avoiding supervision or by willfully making their whereabouts
unknown to the supervising probation officer." In order for someone
to commit an act "willfully" there must be intent present. The
reading of this statute would suggest that someone must intentionally
hide from or lie about their location to a probation officer in order
However, each scenario is different and the way in which each probation
officer interprets absconding may be different. In the above scenario,
it could be argued that Ashley's actions did not rise to the level
of absconding. Ashley was kicked out of her sister's house and was
in the process of moving in with her boyfriend when she missed a scheduled
meeting. She notified the probation officer within a reasonable time (1
½ weeks) of her new address. She never intentionally avoided or
lied to the probation officer about her whereabouts. Ashley was a model
probationer before this minor incident and has been a model probationer after.
All of that being said, the probation officer may still report the violation
whenever he/she believes the probationer has absconded. Some officers
may give a probationer a couple of weeks to notify them of an address
change and some may only give a few days. And typically, if the report
deals with absconding, the PO will recommend revocation of probation in court.
Another key fact is that during a probation violation hearing, the probation
officer's recommendation holds great weight since they interact most
frequently with the probationer. Judges tend to give great deference to
what the PO reports. All of the arguments and contentions listed above
should be brought to the court's attention in an attempt to reduce
the sentence. Even if the PO recommends revocation and the judge finds
a violation, it is still within the judge's discretion to impose a
different sentence other than revocation.
It is important to
contact an experienced attorney if you have violated your probation.