Probation Violation: Absconding

Question: Have I violated probation by not notifying my probation officer that I have moved?

Factual Scenario:

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?

Discussion:

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 to abscond.

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.

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