Gary S. Bernstein, PA

The statute concerning VOPs in the District Court (not the Circuit Court) has been a source of contention between attorneys and judges.  The statute read that a request for a violation of probation had to be initiated while the defendant was still on probation.  Well what happens if the defendant violates the probation on the last day of probation and promptly reports it to the probation officer?  Some judges ruled that they were without authority to violate the probation.  Others said screw it (not a direct quote) and violated them anyway.  In order to cure this problem, effective October 1, 2009, the statute has been amended to allow for VOP charges to be filed up to 30 days after the probation has expired.  You don’t fix it if it ain’t broke.  I will present this argument along with the new statute, the actual bill with why it was being submitted, the Legislative Summary as to why it was needed to a judge next week.  Hopefully, I do not have to litigate this on appeal, and the judge acknowledges that the law means exactly what it presently says.  And no, the court cannot postpone the case to after October 1 and claim the violation is now timely (if within the firstl 30 days).  This issue generally arose because probation officers would wait until after a probationer was convicted of the new offense to file the violation.  In all DWI (old crime), DUI, and Driving Impaired cases a standard condition of probation was and is not to consume alcohol during the period of probation.  That alone is grounds for a violation.  Had the trial judge been notified of the alcohol related arrest, a violation could have been issued for the consumption and the probation violated.  I suspect that is exactly what the judge next week is going to order the Probation Department to do in any DUI case where alcohol is detected, with or without a breath test.  I am sure I will live to regret that in the future, but next week’s client has priority.

Probation Dismissed.  Judge agreed with the change in the law.