Revocation of Probation in Oregon
Full Question:
After my husband got arrested for dealing methamphetamine, our home was raided. I was at home at the time and was charged and later sentenced. It has been 9 months since I was sentenced and I've been reporting to my probation officer, paid my fines, and did my compensatory services. The other day I was at a friends house to buy a car from them and while I was there their home was raided. I was searched and found with two vicoden pills; which I did not claim. They let us go and told me to report to my probation officer, which I did the next day. It was my first urine analysis and I couldn't do it because I had used two weeks prior and was scared it would be in my system. Since I couldn't do it, I was told to start coming in once a month. The next day they called me back in and made me sign an admission of a dirty urine analysis and told me to get prepared for a court date and then prison. They didn't cite me that night. Are they going to violate the departure and send me to prison?
03/02/2009 |
Category: Criminal |
State: Oregon |
#15409
Answer:
If you violated a condition of your probation, it is possible for a probation violation to result in revocation of probation and imprisonment. A person has a right to a probation revocation hearing. At the hearing, it will be a matter of subjective determination for the court, based on all the facts and circumstances involved, to determine whether probation should be revoked. Failure to abide by all general and special conditions of probation imposed by the court may result in arrest, modification of conditions, revocation of probation or imposition of structured, intermediate sanctions in accordance with rules adopted underORS 137.595.
I suggest your consult a local attorney and attend a Narcotics Anonymous or other 12-step meeting, where you may discuss the matter with others who share similar experiences.
Please see the following OR statutes:
137.595 Establishing system of sanctions; rules.
(1) The Department of Corrections shall adopt rules to carry out the
purposes of chapter 680, Oregon Laws 1993, by establishing a system of
structured, intermediate probation violation sanctions that may be
imposed by the Department of Corrections or a county community
corrections agency, taking into consideration the severity of the
violation behavior, the prior violation history, the severity of the
underlying criminal conviction, the criminal history of the offender,
protection of the community, deterrence, the effective capacity of the
state prisons and the availability of appropriate local sanctions
including, but not limited to, jail, community service work, house
arrest, electronic surveillance, restitution centers, work release
centers, day reporting centers or other local sanctions.
(2) Rules adopted by the Department of Corrections under this section
shall establish:
(a) A system of structured, intermediate probation violation sanctions
that may be imposed by the Department of Corrections or a county
community corrections agency on a probationer who waives in writing a
probation violation hearing, admits or affirmatively chooses not to
contest the violations alleged in a probation violation report and
consents to the sanctions;
(b) Procedures to provide a probationer with written notice of the
probationer's right to a hearing before the court to determine whether
the probationer violated the conditions of probation alleged in a
probation violation report, and if so, whether to continue the
probationer on probation subject to the same or modified conditions, or
order sanctions for any violations and the right to be represented by
counsel at the hearing if the probationer is financially eligible;
(c) Procedures for a probationer to waive in writing a probation
violation hearing, admit or not contest the violations alleged in the
probation violation report and consent to the imposition of structured,
intermediate sanctions by the Department of Corrections or a county
community corrections agency;
(d) The level and type of sanctions that may be imposed by parole and
probation officers and by supervisory personnel;
(e) The level and type of violation behavior warranting a
recommendation to the court that probation be revoked;
(f) Procedures for notifying district attorneys and the courts of
probation violations admitted by probationers and the sanctions imposed
by the Department of Corrections or county community corrections
agencies; and
(g) Such other policies or procedures as are necessary to carry out
the purposes of chapter 680, Oregon Laws 1993.
(3) Jail confinement imposed as a custodial sanction by the Department
of Corrections or a county community corrections agency pursuant to
rules adopted under this section may not exceed 60 days per violation
report. The total number of days of jail confinement for all violation
reports per conviction may not exceed the maximum number of available
jail custody units under rules adopted by the Oregon Criminal Justice
Commission.
(4) Nonjail confinement imposed as a custodial sanction by the
Department of Corrections or a county community corrections agency
pursuant to rules adopted under this section may not exceed the maximum
number of available nonjail custody units under rules adopted by the
Oregon Criminal Justice Commission.
137.540 Conditions of probation; evaluation and treatment; effect
of failure to abide by conditions; modification.
(1) The court may sentence the defendant to probation subject to the
following general conditions unless specifically deleted by the court.
The probationer shall:
(a) Pay supervision fees, fines, restitution or other fees ordered by
the court.
(b) Not use or possess controlled substances except pursuant to a
medical prescription.
(c) Submit to testing of breath or urine for controlled substance or
alcohol use if the probationer has a history of substance abuse or if
there is a reasonable suspicion that the probationer has illegally used
controlled substances.
(d) Participate in a substance abuse evaluation as directed by the
supervising officer and follow the recommendations of the evaluator if
there are reasonable grounds to believe there is a history of substance
abuse.
(e) Remain in the State of Oregon until written permission to leave is
granted by the Department of Corrections or a county community
corrections agency.
(f) If physically able, find and maintain gainful full-time
employment, approved schooling, or a full-time combination of both. Any
waiver of this requirement must be based on a finding by the court
stating the reasons for the waiver.
(g) Change neither employment nor residence without prior permission
from the Department of Corrections or a county community corrections
agency.
(h) Permit the parole and probation officer to visit the probationer
or the probationer's work site or residence and to conduct a
walk-through of the common areas and of the rooms in the residence
occupied by or under the control of the probationer.
(i) Consent to the search of person, vehicle or premises upon the
request of a representative of the supervising officer if the
supervising officer has reasonable grounds to believe that evidence of a
violation will be found, and submit to fingerprinting or photographing,
or both, when requested by the Department of Corrections or a county
community corrections agency for supervision purposes.
(j) Obey all laws, municipal, county, state and federal.
(k) Promptly and truthfully answer all reasonable inquiries by the
Department of Corrections or a county community corrections agency.
(L) Not possess weapons, firearms or dangerous animals.
(m) If recommended by the supervising officer, successfully complete a
sex offender treatment program approved by the supervising officer and
submit to polygraph examinations at the direction of the supervising
officer if the probationer:
(A) Is under supervision for a sex offense under ORS 163.305
to 163.467;
(B) Was previously convicted of a sex offense under ORS 163.305
to 163.467; or
(C) Was previously convicted in another jurisdiction of an offense
that would constitute a sex offense under ORS 163.305 to 163.467 if
committed in this state.
(n) Participate in a mental health evaluation as directed by the
supervising officer and follow the recommendation of the evaluator.
(o) Report as required and abide by the direction of the supervising
officer.
(p) If required to report as a sex offender under ORS 181.596, report
with the Department of State Police, a chief of police, a county sheriff
or the supervising agency:
(A) When supervision begins;
(B) Within 10 days of a change in residence;
(C) Once each year within 10 days of the probationer's date of birth;
(D) Within 10 days of the first day the person works at, carries on a
vocation at or attends an institution of higher education; and
(E) Within 10 days of a change in work, vocation or attendance status
at an institution of higher education.
(2) In addition to the general conditions, the court may impose any
special conditions of probation that are reasonably related to the crime
of conviction or the needs of the probationer for the protection of the
public or reformation of the probationer, or both, including, but not
limited to, that the probationer shall:
(a) For crimes committed prior to November 1, 1989, and misdemeanors
committed on or after November 1, 1989, be confined to the county jail
or be restricted to the probationer's own residence or to the premises
thereof, or be subject to any combination of such confinement and
restriction, such confinement or restriction or combination thereof to
be for a period not to exceed one year or one-half of the maximum period
of confinement that could be imposed for the offense for which the
defendant is convicted, whichever is the lesser.
(b) For felonies committed on or after November 1, 1989, be confined
in the county jail, or be subject to other custodial sanctions under
community supervision, or both, as provided by rules of the Oregon
Criminal Justice Commission.
(c) For crimes committed on or after December 5, 1996, sell any assets
of the probationer as specifically ordered by the court in order to pay
restitution.
(3) When a person who is a sex offender is released on probation, the
court shall impose as a special condition of probation that the person
not reside in any dwelling in which another sex offender who is on
probation, parole or post-prison supervision resides, without the
approval of the person's supervising parole and probation officer, or in
which more than one other sex offender who is on probation, parole or
post-prison supervision resides, without the approval of the director of
the probation agency that is supervising the person or of the county
manager of the Department of Corrections, or a designee of the director
or manager. As soon as practicable, the supervising parole and probation
officer of a person subject to the requirements of this subsection shall
review the person's living arrangement with the person's sex offender
treatment provider to ensure that the arrangement supports the goals of
offender rehabilitation and community safety. As used in this
subsection:
(a) "Dwelling" has the meaning given that term in ORS 469.160.
(b) "Dwelling" does not include a residential treatment facility or a
halfway house.
(c) "Halfway house" means a publicly or privately operated profit or
nonprofit residential facility that provides rehabilitative care and
treatment for sex offenders.
(d) "Sex offender" has the meaning given that term in ORS 181.594.
(4)
(a) If the person is released on probation following conviction of
a sex crime, as defined in ORS 181.594, or an assault, as defined in
ORS 163.175 or 163.185, and the victim was under 18 years of age, the
court, if requested by the victim, shall include as a special condition
of the person's probation that the person not reside within three miles
of the victim unless:
(A) The victim resides in a county having a population of less
than 130,000 and the person is required to reside in that county;
(B) The person demonstrates to the court by a preponderance of the
evidence that no mental intimidation or pressure was brought to bear
during the commission of the crime;
(C) The person demonstrates to the court by a preponderance of the
evidence that imposition of the condition will deprive the person of a
residence that would be materially significant in aiding in the
rehabilitation of the person or in the success of the probation; or
(D) The person resides in a halfway house. As used in this
subparagraph, "halfway house" means a publicly or privately operated
profit or nonprofit residential facility that provides rehabilitative
care and treatment for sex offenders.
(b) A victim may request imposition of the special condition of
probation described in this subsection at the time of sentencing in
person or through the prosecuting attorney.
(c) If the court imposes the special condition of probation described
in this subsection and if at any time during the period of probation the
victim moves to within three miles of the probationer's residence, the
court may not require the probationer to change the probationer's
residence in order to comply with the special condition of probation.
(5) When a person who is a sex offender, as defined in ORS 181.594, is
released on probation, the Department of Corrections or the county
community corrections agency, whichever is appropriate, shall notify the
chief of police, if the person is going to reside within a city, and the
county sheriff of the county in which the person is going to reside of
the person's release and the conditions of the person's release.
(6) Failure to abide by all general and special conditions imposed by
the court and supervised by the Department of Corrections or a county
community corrections agency may result in arrest, modification of
conditions, revocation of probation or imposition of structured,
intermediate sanctions in accordance with rules adopted under
ORS 137.595.
(7) The court may at any time modify the conditions of probation.
(8) A court may not order revocation of probation as a result of the
probationer's failure to pay restitution unless the court determines
from the totality of the circumstances that the purposes of the
probation are not being served.
(9) It is not a cause for revocation of probation that the probationer
failed to apply for or accept employment at any workplace where there is
a labor dispute in progress. As used in this subsection, "labor dispute"
has the meaning for that term provided in ORS 662.010.
(10) As used in this section, "attends," "institution of higher
education," "works" and "carries on a vocation" have the meanings given
those terms in ORS 181.594.
137.545 Period of probation; discharge from probation; proceedings
in case of violation of conditions.
(1) Subject to the limitations in ORS 137.010 and to rules of the
Oregon Criminal Justice Commission for felonies committed on or after
November 1, 1989:
(a) The period of probation shall be as the court determines and may,
in the discretion of the court, be continued or extended.
(b) The court may at any time discharge a person from probation.
(2) At any time during the probation period, the court may issue a
warrant and cause a defendant to be arrested for violating any of the
conditions of probation. Any parole and probation officer, police
officer or other officer with power of arrest may arrest a probationer
without a warrant for violating any condition of probation, and a
statement by the parole and probation officer or arresting officer
setting forth that the probationer has, in the judgment of the parole
and probation officer or arresting officer, violated the conditions of
probation is sufficient warrant for the detention of the probationer in
the county jail until the probationer can be brought before the court or
until the parole and probation officer or supervisory personnel impose
and the offender agrees to structured, intermediate sanctions in
accordance with the rules adopted under ORS 137.595. Disposition shall
be made during the first 36 hours in custody, excluding Saturdays,
Sundays and holidays, unless later disposition is authorized by
supervisory personnel. If authorized by supervisory personnel, the
disposition shall take place in no more than five judicial days. If the
offender does not consent to structured, intermediate sanctions imposed
by the parole and probation officer or supervisory personnel in
accordance with the rules adopted under ORS 137.595, the parole and
probation officer, as soon as practicable, but within one judicial day,
shall report the arrest or detention to the court that imposed the
probation. The parole and probation officer shall promptly submit to the
court a report showing in what manner the probationer has violated the
conditions of probation.
(3) Except for good cause shown or at the request of the probationer,
the probationer shall be brought before a magistrate during the first 36
hours of custody, excluding holidays, Saturdays and Sundays. That
magistrate, in the exercise of discretion, may order the probationer
held pending a violation or revocation hearing or pending transfer to
the jurisdiction of another court where the probation was imposed. In
lieu of an order that the probationer be held, the magistrate may
release the probationer upon the condition that the probationer appear
in court at a later date for a probation violation or revocation
hearing. If the probationer is being held on an out-of-county warrant,
the magistrate may order the probationer released subject to an
additional order to the probationer that the probationer report within
seven calendar days to the court that imposed the probation.
(4) When a probationer has been sentenced to probation in more than
one county and the probationer is being held on an out of-county warrant
for a probation violation, the court may consider consolidation of some
or all pending probation violation proceedings pursuant to rules made
and orders issued by the Chief Justice of the Supreme Court under
ORS 137.547:
(a) Upon the motion of the district attorney or defense counsel in the
county in which the probationer is held; or
(b) Upon the court's own motion.
(5)
(a) For defendants sentenced for felonies committed prior to
November 1, 1989, and for any misdemeanor, the court that imposed the
probation, after summary hearing, may revoke the probation and:
(A) If the execution of some other part of the sentence has been
suspended, the court shall cause the rest of the sentence imposed to be
executed.
(B) If no other sentence has been imposed, the court may impose any
other sentence which originally could have been imposed.
(b) For defendants sentenced for felonies committed on or after
November 1, 1989, the court that imposed the probationary sentence may
revoke probation supervision and impose a sanction as provided by rules
of the Oregon Criminal Justice Commission.
(6) Except for good cause shown, if the revocation hearing is not
conducted within 14 calendar days following the arrest or detention of
the probationer, the probationer shall be released from custody.
(7) A defendant who has been previously confined in the county jail as
a condition of probation pursuant to ORS 137.540 or as part of a
probationary sentence pursuant to the rules of the Oregon Criminal
Justice Commission may be given credit for all time thus served in any
order or judgment of confinement resulting from revocation of probation.
(8) In the case of any defendant whose sentence has been suspended but
who has not been sentenced to probation, the court may issue a warrant
and cause the defendant to be arrested and brought before the court at
any time within the maximum period for which the defendant might
originally have been sentenced. Thereupon the court, after summary
hearing, may revoke the suspension of sentence and cause the sentence
imposed to be executed.
(9) If a probationer fails to appear or report to a court for further
proceedings as required by an order under subsection (3) of this
section, the failure to appear may be prosecuted in the county to which
the probationer was ordered to appear or report.
(10) The probationer may admit or deny the violation by being
physically present at the hearing or by means of simultaneous electronic
transmission as described in ORS 131.045.
(11)
(a) The victim has the right:
(A) Upon request made within the time period prescribed in the notice
required by ORS 147.417, to be notified by the district attorney of any
hearing before the court that may result in the revocation of the
defendant's probation;
(B) To appear personally at the hearing; and
(C) If present, to reasonably express any views relevant to the issues
before the court.
(b) Failure of the district attorney to notify the victim under
paragraph (a) of this subsection or failure of the victim to appear at
the hearing does not affect the validity of the proceeding.
