The Difference Between Technical and Substantive Probation Violations

Probation jail time is perhaps one of the most misunderstood sentences.

The majority of people think that all probation violations are the same. However, that is not true. There are two different types of violations.

Knowing the difference between them could save someone:

• Months (or years) behind bars
• Thousands of dollars in legal fees
• Their job, family and reputation

Here is how it all works…

Here’s what you’ll find inside:

1. What Is A Probation Violation?
2. Technical Probation Violations Explained
3. Substantive Probation Violations Explained
4. Key Differences Between The Two
5. What Happens After A Violation?

What Is A Probation Violation?

A probation violation happens any time someone breaks the rules of their probation agreement.

Sounds simple enough, right?

Of course, there’s a catch — which violation you committed matters a lot. In fact, a new report found 45% of state prison admissions across the country were due to probation or parole violations. That’s a lot of people going back to prison because of a problem with their supervision. What violation you got will heavily impact your ultimate sentence.

Anyone facing probation violation charges in Denver, CO wants to know exactly what they are charged with. Why? Because the violation dictates how much probation jail time is on the table. It will also determine what type of defense will be effective in court.

Probation violations fall into two buckets:

• Technical violations (breaking probation rules)
• Substantive violations (committing a new crime)

Now to each one in detail…

Technical Probation Violations Explained

A technical violation occurs when an individual violates a condition of their probation without committing another crime.

These can be little things that may seem innocent, but become colossal failures in court. Examples of technical violations include:

• Missing a meeting with the probation officer
• Failing a drug or alcohol test
• Missing court-ordered classes
• Travelling outside the approved area
• Missing curfew
• Not paying fines or restitution

Sounds minor, right?

Actually that is not how the court system works. Technical violations account for approximately 95,000 people entering jails each year. Imagine that many people serving actual jail time for “small mistakes”.

Here’s the kicker…

Technical violations don’t have to be proved beyond a reasonable doubt. The burden of proof is much lower. It’s usually a “preponderance of the evidence.” Essentially the judge simply has to believe it was more likely than not that the violation occurred.

That’s why so many people end up serving probation jail time for technical issues.

Substantive Probation Violations Explained

A substantive violation is a whole different ball game.

This is when an individual gets arrested for committing an entirely NEW offense while on probation. Instead of violating a rule of their probation, they broke the law. Examples of substantive violations include:

• Theft or shoplifting
• Drug possession
• Assault
• Driving under the influence
• Domestic violence

Substantive violations are much worse because now the individual faces two punishments:

1. Penalties for the original offence
2. Penalties for the new crime

For example, a person on probation for DUI could be charged with another DUI – and face much more serious penalties for both offenses. Substantive violations can occur due to an arrest, even if a conviction hasn’t occurred.

If you get arrested while on probation your paperwork will usually lead to automatic detention. Judges often don’t allow bond when you are arrested on probation.

Key Differences Between The Two

The two violations can feel very similar. However they are treated extremely differently in court.

Here is the breakdown:

Technical Violation:

• No new crime committed
• Lower burden of proof
• Faster hearing process
• Penalties depend on the original sentence

Substantive Violation:

• A new crime was committed
• Two separate legal processes
• Higher burden of proof for the new crime
• Penalties can stack on top of each other

Why should you care? Because your defense options for each are vastly different.

The defense of a technical violation typically consists of providing an excuse for violating the rule. Events such as medical emergencies, work obligations, or human error may provide grounds for dismissal or mitigation.

Defending an actual violation is far more complicated. You have to defend against the new criminal charge AND the probation violation simultaneously. That’s why it’s critical to hire an attorney experienced in probation violations.

A qualified lawyer will attack all facets of your case. They will minimize the effects of both charges. They can also challenge faulty evidence and shield you from future consequences.

What Happens After A Violation?

Once a probation violation is reported, things move fast.

The probation officer submits his report and the court sets a hearing date. The judge will consider evidence from both parties and determine the course of action. Typically there are four possible outcomes:

1. Warning: No additional penalty
2. Modified probation: Stricter rules added
3. Extended probation: Probation length increased
4. Revoked probation: Sent to jail or prison

Probation jail time depends on a few key factors:

• The type of violation (technical vs substantive)
• The original crime
• The person’s criminal history
• How many violations have occurred before

States spent an estimated $10 billion locking people up for supervision violations in 2023. More than $3 billion of that total was for technical violations.

That number illustrates how seriously courts are treating these violations. Technical violations can send people to jail.

The good news?

An experienced probation attorney may often work with the court to help the accused stay out of jail. This is particularly true with first time technical violations and when there has been an effort to show good faith and explain what happened.

Final Takeaways

There is a massive difference between technical and substantive probation violations.

Technical violations are violations of the rules of probation. Substantive violations are new crimes committed while on probation. Both can result in significant probation jail time. However they are treated VERY differently. Here is a quick review:

• Technical violations are easier to prove but still carry real consequences
• Substantive violations create two separate legal problems at once
• Probation jail time can result from either type of violation
• Legal help makes a huge difference in the final outcome

Anyone facing a probation violation should not wait to take action. The sooner a lawyer is involved, the better the chance of preventing probation jail time and getting life back on track.