Defending Against a Probation OSC
In a Utah criminal case, an order to show cause for a probation violation can result in the imposition of the original suspended sentence. Depending on the nature of the charges and severity of the original sentence, this could mean substantial jail or prison time.
If you are facing an order to show cause, the assistance of an experienced criminal lawyer can be invaluable. Contact us today to arrange for an initial consultation.
The best criminal defense attorneys insist on fair courtroom procedures that respect clients’ rights.
What is an order to show cause in a criminal case?
When evidence indicates that a court’s order has been violated, the court may issue an order to show cause. In a civil case, the court may use its contempt
authority to punish the violator. But in a criminal case, the consequences of violating a court’s probation orders can be much more serious.
If information is presented to the court (either by a prosecutor, probation officer, or some other source) indicating that a defendant has violated the terms of probation as ordered by the court, the judge may issue an order to show cause. This order requires the defendant to appear in court to demonstrate a “cause” (or reason) why the court should not revoke probation and impose the sentence that had originally been suspended. This can include substantial jail or prison time.
In most cases, the court will also simultaneously issue a bench warrant for the arrest of the defendant. The purpose of the arrest warrant is to bring the defendant to court to address the order to show cause. However, often this means that the defendant is held in jail for days or even weeks while waiting to appear in court.
The best attorneys understand that the effects of a criminal charge extend beyond the courtroom.
How do I defend against an order to show cause?
An order to show cause is normally accompanied by an affidavit (sworn statement) outlining the specific alleged probation violations. In defending against these allegations, a defendant must show cause why probation should not be revoked. This “cause” typically comes in two different forms: 1) challenging the factual allegations of a probation violation; or 2) admitting the allegations, but presenting mitigating information to persuade the court to reinstate probation or impose alternate sanctions that are less harsh.
Depending on the nature of the allegations made in the order to show cause, and depending on the factual basis for the allegations, you may be better off demanding an evidentiary hearing and requiring the prosecutor to try to prove the allegations, or you may get better results by admitting certain allegations and presenting mitigating information as a basis for why the judge should not revoke probation.
You should work with an experienced defense attorney in determining which strategy is best suited to your situation.
A successful defense strategy starts with an understanding of your goals and needs.
As you consider your options, it is important to remember two key rules relating to an evidentiary hearing on an order to show cause: 1) the prosecutor is only required to prove the probation violation by a preponderance of the evidence
(better than 50/50 – much less rigorous than the “proof beyond a reasonable doubt” standard of a criminal jury trial); and 2) it only takes proof of a single violation for the judge to have authority to revoke probation and impose the original sentence.
If the prosecutor cannot meet the required standard of proof, the order to show cause can be stricken. But if the prosecutor presents evidence sufficient to convince the judge that the terms of probation have been violated, then the original sentence (including any jail or prison time) can be imposed.
What happens if I admit a probation violation?
Demanding an evidentiary hearing is not always the best way to defend against an order to show cause. If the prosecutor’s evidence is strong, even on just one allegation, that can be sufficient to allow the judge to revoke probation. Many judges are more inclined to revoke probation following an unsuccessful defense at an evidentiary hearing.
“Fighting Hard” is not always the right answer. The best attorneys understand when a more strategic approach can be more effective.
Admitting a probation violation does not necessarily mean that you will go to jail or prison. If the court finds that there has been a violation, whether based on an admission or following an evidentiary hearing, the court must then determine an appropriate sanction for the violation. Sanctions for probation violations can range from revoking probation and incarceration to continuing the defendant on probation without any penalties.
The court must consider the severity of the probation violation. But the court also must consider mitigating information, such as the defendant’s involvement in treatment or counseling, the defendant’s employment situation, family circumstances, past history of probation violations (or lack thereof), and any other
relevant facts. In some cases, even following an admission to an egregious probation violation, a court may still determine that no further sanctions are necessary.
Finding the Right Criminal Defense Attorney
If you are facing an order to show cause for a probation violation in Utah, the assistance of an experienced criminal defense attorney is critical. Contact us today to schedule an initial consultation.
