What Will Happen If an Individual on Probation
Interviewer: What should I do if I’m serving a probation sentence and I’m re-arrested? Should the first thing I do, obviously, contact my lawyer, you, and then what’s going to happen?
Jason: In most circumstances, one of the conditions of probation is that the individual must report to their probation officer. Sometimes if there is no probation officer, if the court orders it as part of the sentence, generally there’s some sort of a requirement that says that the individual must report to their probation officer or the court any contact with law enforcement within 48 hours. If the judge doesn’t make such specific orders, then the individual is under no obligation to report that police contact unless there is a specific order.
On Felony Probation, Individuals Must Notify Their Probation Officer within 48 Hours of ANY Contact with Law Enforcement
But typically on felony probation, in the probation agreement prepared and submitted by adult probation and parole, one of the standards of conditions is notifying your probation officer within 48 hours of any contact with law enforcement. That doesn’t necessarily only mean if you’ve been re-arrested.
Even if, for example, you’ve gotten a citation or if you’ve even been questioned about a crime, that’s one of the conditions of felony probation, that you report any of that police contact to your probation officer, and then they’ll investigate to determine whether or not any action should be taken.
Will You Still Be Eligible for Bail if You Are on Probation and Arrested?
Interviewer: If I am arrested while I’m on probation, am I still able to post bail, to be released? Can my attorney represent to get me out?
Utah’s Felony on Felony Rule
Jason: Yes, there’s nothing that prohibits you from being released or posting bail. However, there is one provision in Utah. It’s actually in the Utah constitution. It’s referred to as the ‘felony on felony rule’. In some jurisdictions, it’s actually followed quite vigorously.
If the Felony on Felony Rule Applies, Bail Will Not Be Set by the Judge
What the felony on felony rule of the Utah constitution says is that if the individual is either on probation for a felony offense or if they’re currently on release, bail or some other form of release when charged with a felony offense, and they are arrested or charged with a new felony offense, they can in fact be held without bail. That’s what the felony on felony means. You’ve got a prior felony pending or you’re on supervision and you commit a new felony offense, that you can actually be held in jail and the court is not required to set bail.
Different Cities and Towns in Utah Have the Discretion to Enforce the Felony on Felony Rule
Certain locations, particularly in Utah in Weaver County, which is the Ogden area, the felony on felony rule is used very often, if not almost always. This is because they have enough jail space to house those people who are pending felony charges. In other situations, particularly like for example, in Salt Lake County, due to jail overcrowding, they don’t impose the felony on felony rule.
There’s nothing that says that they have to impose it. It’s just discretionary and it’s up to the prosecutor first of all to decide if they’re going to request that the court impose the felony on felony rule and deny bail, or secondly, even if it’s requested, the judge gets to decide whether or not bail should be denied, but it is an option under the Utah constitution to deny bail on the felony on felony.
If You Relocate, Are You Still Subject to Probation While Residing in another State?
Interviewer: What if I am on probation and I need to completely relocate, maybe out of state, and I get the permission from the court. Is my probation following me or am I still on probation in Utah? How does that work?
Jason: That depends on if it’s a misdemeanor or felony. In most misdemeanor offenses, probation of the individual who wants to relocate, go to school, take a new job, move back to be with family for whatever reason, the courts will either terminate the supervised part of it if the person’s been compliant or they do what I refer to as ‘arms-length’ supervision. This is where they do still have a probation officer, but rather than doing in-person meetings every month, they may do them as telephonic check-ins.
Felony Probation and the Interstate Compact
However, if you’re on felony probation, you would then be subject to what’s called the interstate compact. This means if you’re on felony probation and you want to move out of state, if the new state is a member of the interstate compact, advance notice is required.
The interstate compact is an agreement honored by multiple states where they’ve agreed to host supervised probationers from other states who are part of the compact. The procedure is you first of all have to submit a request through adult probation and parole in Utah, requesting an interstate compact, notifying them which state you’re seeking to relocate to and why.
Adult probation and parole in Utah will then make a request of that state’s corresponding probation department, asking if they’re willing to supervise the Utah offender. If the other state agrees to supervise the offender, then Utah has the final decision as to whether or not they’re going to allow that person to move and if they do, then in essence what happens is, their probation is transferred to the new state.
If the New Home State Is Part of the Interstate Compact, the Probation Terms Would Be Overseen by the Home State’s Probation Department
So instead of being supervised by adult probation and parole in Utah, they’d actually be falling under the supervision of the probation agency in the state that they moved to who would then, if there’s any violations of probation, report back to the Utah adult probation and parole, and the person could still be held in violation in Utah for failing to comply with probation, even though it’s being supervised by another state. It’s a much more complicated process when it’s felony probation.
Interviewer: Is it that complicated of a process when it’s just traveling, like they’re only going to be gone a week or two or, like you said, to visit family and friends, but they’re coming back?
Requests to Travel on a Short-Term Basis Care Approved by the Individual’s Probation Officer
Jason: If it’s just a temporary request to leave the state, the appropriate procedure would be to first contact their probation officer and ask them for permission, if they’re going to a wedding or a family reunion or event of that nature. The probation officer, in essence, has the discretion to give them permission to leave the state temporarily, for a short period of time.
Sometimes the probation officer doesn’t feel comfortable giving that permission and actually requires that person to get permission from the court. This usually results in a review hearing or at least the filing of a motion to get the judge’s approval for that person to leave the state.
Or, for example, if the probation officer refuses to give permission, as defense counsel we can still ask the court to authorize the individual to leave the state temporarily, whether the probation officer agrees with it or not. The final decision would be left up to the judge. Again, a lot of that is going to depend on how well the person has complied with probation, as well as how long they’ve been on probation up to that point, and what the reason is for them leaving the state.