What is the greatest downside of taking that probation deal?

If you are familiar with the criminal justice system, you know the deal I am talking about: the Defendant is stuck in jail and the prosecution’s case is medium strength… at best. You could tough it out and wait for trial. Or you could take the deal offered right now and get out today. What’s the downside of a little bit of probation?

The downside is that, while the deal will get you out of jail, if you are suspending habitual offender time, a violation can lead to a lengthy prison sentence. 

Being on probation in New Mexico is a delicate balancing act. If you can make it through the period, probation can be a great way to avoid serving time. But for those with suspended prison time hanging over their heads—particularly those who qualify as habitual offenders—probation can be a dangerous proposition because the threat of a violation and then a revocation will lead to serious consequences. 

The Double-Edged Sword of Suspended Sentences

When a judge suspends part or all of a prison sentence and places you on probation, that suspended time remains part of your sentence. It is not waived or forgiven—it is simply held in abeyance. You are serving your time on the street under the watchful eye of New Mexico Probation and Parole. Each day you get a credit toward the sentence. And that is valuable. Often the most attractive part of a deal is the fact that you get out of jail the day you sign. The only worry is, are you setting yourself up for failure?

If potential time is held in abeyance, it means the sentence is never truly “final” until that whole time period is over. Unlike someone who has completed their prison term and moved on, a probationer with suspended time lives under the constant possibility that all that suspended time can be activated if there is a violation.

A violation can be almost anything that is contrary to NMCD’s Probation and Parole Rules, be it a small violation like being late for a meeting or a serious one like picking up a new felony charge. Any violation even the minor ones can lead to a full revocation. And at that point, if there is habitual offender enhancement time held in abeyance, it can at that point be activated to devastating effect. 

While on probation, you earn time against the suspended sentence… but not necessarily if that time is a habitual offender enhancement held in abeyance. 

How Habitual Offender Time Can Be Imposed Upon Revocation

Here is a scenario that happens repeatedly: A defendant with 2 prior felony convictions is facing felony shoplifting and felon in possession of a handgun. The jurisdiction on the underlying offenses would be 4.5 years in prison. But both crimes can be enhanced by 4 years each on the habitual offender. During plea negotiations, the prosecutor agrees not to pursue habitual offender enhancement. The deal imposes a sentence of 4.5 years, but suspends all of it and orders the defendant to serve 4.5 years of probation.

The defendant is released on probation, and does relatively well for a few years. But then they commit a probation violation—perhaps they miss an appointment, test positive for drugs, or violate some other condition of probation.

This is when the danger erupts. At the probation revocation hearing, the prosecutor can now file to impose the habitual offender enhancement that was negotiated away in the original plea. Because the sentence was never “final”—because there is still suspended time and an open probation case— the habitual time is not just possible, it’s mandatory! The defendant gets some credit for his time served well on probation, but there are 8 mandatory years right there on that violation!!

The result: On top of the possible reinstatement of the suspended prison time, the court can impose 1, 4 or 8 additional years of mandatory prison time under the habitual offender statute for each conviction on the underlying crimes. This time cannot be suspended, deferred, or negotiated away once the violation is found. Even if the judge would have been sympathetic, that habitual time is mandatory upon a violation! 

The Low Standard of Proof for Violations

One reason probation violation hearings are so perilous is that the legal standard for proving a violation is much lower than the standard for proving guilt at a criminal trial.

At a criminal trial, the prosecution must prove every element of the crime beyond a reasonable doubt—the highest standard in the criminal justice system. This before a jury of 12 citizens. 

At a probation violation hearing, the prosecution needs only to prove the violation with “reasonable certainty” to satisfy the conscience of the court. Courts define this as evidence that “a reasonable and impartial mind would be inclined to conclude that the defendant has violated the terms of probation”. And there is no jury, it’s just a judge. 

This is a significantly low bar. 

Technical Violations Make Everything Riskier

What makes this particularly dangerous is that probation violations include both new criminal conduct and technical violations —routine breaches of probation conditions that are not crimes in themselves.

Common technical violations include:

• Missing a probation appointment
• Failing a drug or alcohol test
• Traveling without permission
• Failing to pay court-ordered fines or restitution
• Failing to complete required programs
• Associating with certain individuals
• Violating curfew

These are not criminal offenses. You cannot be prosecuted for them. Yet they can trigger probation revocation and, for habitual offenders, the imposition of years of additional mandatory prison time.

A single missed appointment due to a work emergency. A positive drug test from residual amounts in your system. An association you didn’t know violated your probation conditions. Any of these can set off a chain reaction ending in years of additional incarceration.

This is why people need to think twice before signing up for that superficially attractive probation deal.

Why You Need Experienced Representation Both Before Taking The Plea And At A Probation Violation

A great attorney is there to protect you on the front end and make sure you know what you are getting into. A lot of attorneys are looking to close their case quickly. This unfortunately can especially be the case with contract public defender attorneys who get a flat rate per case. The longer they work a case the less they get paid per hour. So unfortunately their financial interest does not align with his clients’ when that client is offered a quick deal that is good in the short term but not in the long term sometimes you need an attorney to battle  and play the long game. At the very least you need an attorney that can give an objective and faithful explanation. To do that, the attorney needs experience, wisdom and a commitment to zealous advocacy. Having Max Pines as your lawyer will protect you in determining if the plea is a good one because he has the knowledge and commitment to you to give a rational and objective assessment of the plea. 

But if what’s done is done, and you got the deal you got: facing a probation violation allegation is one of the most critical junctures in a person’s criminal justice journey. The stakes are extreme:

• Months in custody pending hearings
• Compressed timelines for preparation
• Lower standard of proof than criminal trials
• Possible activation of all suspended time
• Mandatory habitual offender enhancement time for those with prior convictions
• No realistic chance of negotiation after the violation is proven

If you or a loved one are on probation and are facing a revocation hearing, you should invest in the highest quality criminal defense attorney to fight for you. With these high stakes, you can’t afford not to hire an attorney the caliber of Max Pines. Max Pines Law will give you a real and objective assessment, a logical and dynamic plan, and zealous advocacy in its execution. It may be the way to avoid a terrible and long prison sentence.