As a law firm that focuses on criminal defense in North Carolina, we’ve received many questions about probation violations. Below is a question we got from a client about absconding probation.
Q: Have I violated probation by not notifying my probation officer that I have moved?
Factual Absconding Probation Scenario
Ashley received a DWI conviction 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 her probation officer told her to do.
After an altercation with her sister, Ashley had no choice but to move out of the house she was currently living in. She moved into 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 scheduled for the day after she moved. The probation officer drove to the sister’s house and inquired about Ashley’s whereabouts. Ashley’s sister informed the PO that she did not know where she had gone but that she kicked Ashley 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 moved, Ashley was served with a probation violation report and a hearing date. It stated she had violated her probation by absconding probation. At the hearing, the probation officer recommended revocation of probation. He based this on the fact that he had marked Ashley as absconded 3 days after he attempted to contact her at her sister’s house and was unable to do so.
Is this proper? What is the definition of absconding?
Probation violations come in all shapes and sizes. Most answers about sentencing for violations involve a case-by-case fact-specific analysis. There are many ways to violate probation. You could fail to appear at a scheduled meeting, fail to pay certain probation fees, or fail a drug test. The two most severe violations are being convicted of a new crime and absconding. The penalty for absconding or committing a new crime may result in revocation of probation. At this point, the judge has the discretion to enact the original sentence that was suspended when probation was ordered.
The factual scenario above deals with the violation of absconding. Dictionary.com defines absconding as leaving hurriedly and secretly, typically to avoid detection of or arrest for an unlawful act such as theft. 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. This statute would suggest that someone must intentionally hide from or lie about their location to a probation officer to abscond.
Yet, each scenario is different and the way each probation officer interprets absconding is different. In the above scenario, you could argue that Ashley’s actions did not rise to the level of absconding. Ashley was kicked out of her sister’s house and was 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 and after the minor incident.
That said, the probation officer may still report the violation whenever he or she believes the probationer has absconded. Some officers may give a probationer a couple of weeks to notify them of an address change. Some may only give a few days. And typically, if the report deals with absconding, the PO will recommend revocation of probation in court.
The probation officer’s recommendation holds great weight during a probation violation hearing. Since they interact most frequently with the probationer, judges tend to give great deference to what the PO reports. All 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 issue a different sentence.
Have you recently been charged with absconding probation?
It is important to contact an experienced attorney if you have violated your probation. The attorneys at Dummit Fradin have many years of handling criminal cases and they’re ready to offer you their expertise. Contact us today to schedule a free criminal case consultation.