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Definition of Probable Cause in North Carolina

Damon Chetson — Wed, 08 Feb 2012 15:26:35 +0000

Probable cause a standard used at different points in a criminal process – it is the standard used to arrest, the standard used to indict, and the standard used to issue search warrants. In each of these situations, someone might be arrested, indicted (charged), or searched without probable cause being shown.

In the event that someone is charged, indicted or arrested without probable cause being shown, a person is likely to have some recourse. In a drug, DWI, or case involving physical evidence, a person might be able to have the fact that certain evidence suppressed if the arrest, charge, or search was done without a showing of probable cause. (A search can sometimes occur in exigent circumstances.)

What is the Definition of Probable Cause in North Carolina?

Probable cause is notoriously ill-defined.

One definition is: “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.”

This is essentially the definition that is applied in North Carolina to govern arrests, coming out of a 1984 case State v. Zuniga 322 S.E.2d 140 (1984)

Thus, while a reviewing court must, of necessity view the action of the law enforcement officer in retrospect, our role is not to import to the officer what in our judgment, as legal technicians, might have been a prudent course of action; but rather our role is to determine whether the officer has acted as a man of reasonable caution who, in good faith and based upon practical consideration of everyday life, believed the suspect committed the crime for which he was later charged.

The court also said:

Probable cause is a flexible, common-sense standard. It does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability is all that is required.

Notice that probable cause is crime-specific. In other words, probable cause isn’t generalized suspicion that something is wrong. In other words, while a person may be briefly detained as part of a Terry Stop, the detention can’t be prolonged. If the detention is prolonged, and then the person is ultimately charged for a different crime, the person’s rights were certainly violated.

Probable cause must support the crime that was later charged, although in the course of arresting someone, police may discover still other crimes have likely been committed and charge those as well.

The Zuniga probable cause standard has been echoed by the North Carolina Supreme Court in subsequent opinions, including:

“Probable cause is a flexible, common-sense standard. It does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability is all that is required.” in State v. Howard
“Probable cause exists where `the facts and circumstances within their [the officers'] knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’an offense has been or is being committed.” State v. Rodriguez
“North Carolina Supreme Court noted that [W]hile a reviewing court must, of necessity view the action of the law enforcement officer in retrospect, our role is not to import to the officer what in our judgment, as legal technicians, might have been a prudent course of action; but rather our role is to determine whether the officer has acted as a man of reasonable caution…” in State v. Mills
“Probable cause for an arrest has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.” in State v. Kizer
“‘When a law enforcement officer, by word or actions, indicates that an individual must remain in the officer’s presence…, the person is for all practical purposes under arrest if there is a substantial imposition of the officer’s will over the person’s liberty.’” State v. Joe, 2011

Zuniga, decided in 1984, follows the basic approach of the United States Supreme Court in Illinois v. Gates (1983) of using a non-technical, totality of the circumstances approach:

This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause[6] than 231*231 is any rigid demand that specific “tests” be satisfied by every informant’s tip. Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a “practical, nontechnical conception.” Brinegar v. United States, 338 U. S. 160, 176 (1949). “In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

In the DWI context, the North Carolina appellate courts have held that faulty driving and clues as to the consumption of alcohol are enough to justify arrest. For instance, in State v. Adkerson, the Court of Appeals decided that:

In this case, we hold there was sufficient evidence to support Trooper Robles’ belief in good faith, that defendant was guilty of driving while impaired. Before making the stop of the vehicle he noticed Adkerson weaving back and forth and once running off the highway. After he made the stop, he noticed that Adkerson’s eyes were extremely red and glassy and that he appeared to be in a daze. He stated that Adkerson “moved sort of slowly” and that “he appeared to be nervous and in [his] opinion he was not normal.” Finally, Trooper Robles testified that he detected “a moderate odor of alcohol about his breath.” As a result of Adkerson’s driving, 437*437 appearance and behavior, Trooper Robles placed him under arrest for driving while impaired. We hold that probable cause existed to justify this action.

In State v. Thomas, the Court of Appeals wrote:

In addition to the information received from Officer Ward, Officer Bigelow’s own observations of defendant, set forth fully above, provide sufficient evidence of probable cause to justify defendant’s warrantless arrest. Based on his observations of defendant—including his disorderly appearance, red glassy eyes, the strong odor of alcohol, backing up when he saw Officer Bigelow, and inability to produce either a driver’s license or registration—Officer Bigelow arrested defendant. Taken as a whole, this evidence is clearly sufficient to establish probable cause, and the trial court properly denied defendant’s motion to suppress

In State v. Tappe, the Court of Appeals wrote:

probable cause to justify the warrantless arrest of defendant.

These cases, taken as a whole, demonstrate that probable cause is not a very high standard. It is a totality-of-the-circumstances standard, non-technical in nature, and generous to the observations of a cautious officer acting in good faith. Where an officer has taken his time, identified specific clues as to criminal activity, whether it be driving and impairment in a DWI or possession of drugs in a PWISD or drug trafficking case, the court will defer to the officer’s judgment, provided the officer can articulate specific facts that support the arrest.

In the past year, both as to the probable cause and reasonable suspicion standards, North Carolina appellate courts have rejected certain instances where defendants have been stopped or arrested without reasonable suspicion or probable cause, including a reasonable suspicion case where the defendant was merely weaving with no other evidence of criminal activity.

But the standard still remains favorable to law enforcement. The best approach, when stopped and questioned, is to reveal nothing. Be polite, but don’t answer questions, and insist on either being able to leave on your own, or being able to have a criminal lawyer present.

Raleigh DWI lawyer Damon Chetson defends people charged with felonies, misdemeanors, traffic and DWI charges in Raleigh, Cary, Apex, and Chapel Hill, NC. Durham DWI lawyer Damon Chetson also defends people charged with crimes in Durham, Chatham, and Harnett Counties. We are available day or night, weekdays or weekends. Call The Chetson Firm for a free consultation (919) 352-9411.

First Degree Burglary in North Carolina

Damon Chetson — Fri, 03 Feb 2012 20:02:06 +0000

We’re approaching that time of year when the weather starts to get a little nicer (although this year has been a very mild winter in Raleigh!)

Around this time, people start coming out of their homes to enjoy the weather, to have fun, and to hang out with friends.

And each spring in Wake County we have a series of crimes that are strikingly similar. They involve teenagers, typically out on a prank, or maybe up to more serious wrong doing. Maybe they’re looking for some easy money. Steal something and sell it on Craigslist or eBay.

Or maybe they’re just trying to take something that isn’t theirs for their own use.

These acts usually involve the teenagers running into garages, sometimes at night, and stealing bikes or even just beer, or vandalizing.

The result is a spate of First Degree Burglary, Second Degree Burglary, or Felony Breaking & Entering (B&E) charges, where young people face the possibility of not only felony records but also active jail time.

The difference between First and Second Degree Burglary is that in First Degree Burglary the residence must be occupied at the time of the Burglary, and in Second Degree Burglary the residence is unoccupied. Second Degree Burglary also includes the curtilage and outbuildings not connected to the dwelling.

Burglary in North Carolina occurs at night. This is one of the few jurisdictions that maintains the old common law distinction between nighttime burglary and day-time breaking and entering.

Ex: Let’s say someone breaks into the garage of a Raleigh home at night with the intent to commit a theft. Is that First Degree Burglary? Probably, so long as the garage is attached to the dwelling home. If the garage is a separate building within the curtilage, then the crime is probably a Second Degree Burglary.

Importantly, First Degree Burglary is a mandatory prison sentence, even for first time offenders.

Breaking & Entering may be either a misdemeanor or a felony, but in either case probation is generally imposed for first time offenders.

Raleigh criminal lawyer Damon Chetson defends people charged with felonies, misdemeanors, traffic and DWI charges in Raleigh, Cary, Apex, and Wake County, NC. Durham Criminal Lawyer Damon Chetson also represents people charged in Wake County, Durham County, Orange County and Chatham County. The Chetson Firm is available day or night, weekdays or weekends. Call day or night for a free consultation (919) 352-9411.

The State’s Use of Appeal and MAR in District Court

Damon Chetson — Wed, 01 Feb 2012 21:16:31 +0000

When a judge renders a judgment in District Court, a Defendant has a number of options. The Defendant can appeal the judgment within 10 days for a trial de novo in Superior Court. If the Defendant misses that 10-day window, the Defendant may also seek to re-open the case through a Motion for Appropriate Relief (MAR).

What about the State? What happens when a prosecutor doesn’t like a result in District Court? What can a prosecutor do to “get justice”?

What happens when a judge sentences a defendant in District Court, but the State doesn’t think the sentence is harsh enough?

A prosecutor also has an opportunity to appeal, although for more limited reasons. And a prosecutor may also file a Motion for Appropriate relief. But a prosecutor can’t ask for a harsher punishment if he doesn’t like the judgment imposed in District Court. That’s because when judgment was imposed, jeopardy attached. Once jeopardy attaches, the Defendant’s federal constitutional rights are implicated.

The State has no countervailing rights. This is a country of individual liberties, protected by a Constitution from state power. The state may have procedural obligations. And there may be interests of fairness to the State’s lawyers – called “prosecutors”. But the state is not the equivalent of the Defendant.

In a criminal trial, the Defendant’s rights hold special importance. Consequently, the phrase, “being fair and impartial to the State of North Carolina and the defendant” misses the point. Fairness and impartiality has to do with the procedural rules. But ties always go to the Defendant in our system, even if judges don’t always commit to that lofty ideal.

Let’s return to the above question. What recourses does a prosecutor have after a judgment has been issued in District Court?

N.C.G.S. 15A-1432 (pdf) permits the prosecutor to appeal to Superior Court when Double Jeopardy has not attached and when “there has been a decision or judgment dismissing criminal charges as to one or more counts” or “upon the granting of a motion for a new trial on the ground of newly discovered or newly available evidence but only on questions of law.”

When jeopardy has attached, either upon a guilty plea or upon a dismissal or not-guilty verdict at the close of State’s evidence, the prosecutor cannot re-open the case because doing so would put the defendant twice in jeopardy of life or limb.

What about a Motion for Appropriate Relief? Can the State use a MAR to try to re-open a judgment it doesn’t like?

N.C.G.S. 15A-1416 says yes, but only for the relief that it may assert upon appeal, which means only for reasons outlined in N.C.G.S. 15A-1432.

N.C.G.S. 15A-1416 also allows the State to pray judgment at any time when grounds for the imposition of the sentence in the PJC are asserted or for probation violations.

Recently the Johnston County court system had to contend with issues involving illegally dismissed cases. The new District Attorney attempted to open the old cases, but was rebuffed by a judge who held that the State’s chance to file the MAR had expired 10 days after the dismissal of each of the cases. (The State potentially could’ve refiled on those cases if the State had caught the corruption scandal within a year of the dismissal.)

Confrontation Clause: Right to Confront

Damon Chetson — Wed, 25 Jan 2012 22:14:28 +0000

Testimonial statements may not be admitted at trial if the witness is unavailable and the defendant has not had an adequate prior opportunity to cross-examine the witness. Such statements would violate the defendant’s Confrontation Clause rights if admitted at trial.

What constitutes an adequate prior opportunity to cross examine?

In State v. Ross, the Defendant got to cross examine a witness at a probable cause hearing, but the witness was not available at trial. The State sought to introduce prior statements by the witness at Trial. The defendant objected that those statements were inadmissible because the Defendant had had the opportunity to cross-examine at probable cause.

The Defendant on appeal focused on the fact that he did not have adequate prior opportunity to cross examine the witness, and that therefore his Confrontation Clause rights were compromised.

He noted that his lead trial counsel had not been appointed at the time of the probable cause hearing.

The Court of Appeals held that the testimony at the probable cause hearing did afford the Defendant an opportunity to cross examine, and so the witnesses’ statements at the probable cause hearing were admissible at trial even though the witness was unavailable at trial for the defendant’s trial counsel to cross-examine.

Raleigh criminal lawyer Damon Chetson helps individuals charged with crimes - misdemeanors, felonies, and DWI and traffic charges - in Raleigh, Cary, Apex and other communities in Wake County and the Research Triangle of North Carolina. Durham DWI lawyer Damon Chetson also represents people throughout the Research Triangle. We are available day or night, weekdays or weekends. Call (919) 352-9411 day or night.

Victory for Criminal Defendants

Damon Chetson — Sun, 15 Jan 2012 22:11:51 +0000

Discovery is the process by which each side in a legal dispute is entitled to receive information from the other side. Usually in a criminal matter, discovery goes one way – from the prosecution to the defense. That’s because in a criminal matter, the prosecution – through the police – such as the Raleigh Police Department – and associated agencies such as Child Protective Services receives information about the criminal investigation into the matter.

There are three legal frameworks in which a person is entitle to discovery in North Carolina – statutory, state constitution, and the federal constitution.

North Carolina’s statutory discovery provisions for felonies is located at N.C.G.S. Chapter 15A, Article 48 basically creates what’s called an “open file discovery” system whereby the Defense is entitled to “the complete files of all law enforcement and prosecutorial agencies involved in the investigation.”

In addition to these broad protections under the NC General Statutes, defendants in North Carolina are entitled to discovery under the North Carolina Constitution and the United States Constitution.

The basic constitutional law governing discovery under the federal constitution was developed in the 1960s principally in a case called Brady v. Maryland which requires the government to turn over everything that’s exculpatory. Subsequent cases have held that exculpatory evidence may be evidence that is favorable to the defendant at sentencing. Still other cases have held that the prosecution must make a good faith review of agency files for exculpatory material – the prosecution may not plead ignorance by failing to inspect police files. And other cases have held that even confidential material in Child Protective Services or school records may be subject to disclosure, sometimes following an in camera review by the trial judge.

This case law applies to the states and well as the federal government.

Today, the Supreme Court reaffirmed its commitment to Brady and the rule that the defense is entitled to exculpatory information.

Juan Smith was convicted of killing five people in 1995 when a group of men busted into a home in search of money and drugs and, ultimately, opened fire on the occupants.

Smith was the only person tried for the murders based solely on eyewitness testimony of a survivor. Elsewhere I’ve written about how eyewitness testimony is unreliable. People often don’t really remember events as accurately as they think they do.

In this case, prosecutors did not have any DNA, fingerprints, weapons, or other physical evidence.

It later turned out that prosecutors failed to reveal to the Defense reports of interviews with the witness. In one of the interviews, the witness told prosecutors that he could not describe the killers, except to say they were black men. Several days later, he had told police that he had not seen any of the peoples’ faces. Yet months later in a trial the witness was supposedly sure Juan Smith was the killer.

There was no question, Chief Justice John G. Roberts Jr. wrote for the majority, that the reports should have been turned over under Brady v. Maryland, a 1963 Supreme Court decision that requires prosecutors to provide favorable evidence to the defense. The question for the justices was only whether the failure mattered — that is, in the words of a 2009 decision, whether “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.”

This ruling reaffirms the importance that the Court has assigned to the prosecution’s obligation to turn over all discoverable (meaning, in this case, exculpatory) information to the defense.

If you're in need of a tough, experienced Raleigh, Cary or Apex criminal lawyer, call our offices day or night. The Chetson Firm represents individuals charged throughout the Research Triangle - Wake, Durham, Orange, and Chatham counties. Call anytime - (919) 352-9411 - weekdays, weekends, evenings or holidays.

Continuous Alcohol Monitoring (CAM) and Raleigh DWI cases

Damon Chetson — Thu, 12 Jan 2012 20:52:13 +0000

Recent changes to North Carolina’s DWI laws expand the use of Continuous Alcohol Monitoring (CAM). For instance, if a person is sentenced to an Aggravated Level 1 DWI, the person would be required to have at least a four month period of Continuous Alcohol Monitoring (120 days) but it can be imposed for the entire length of the probation.

In addition, a magistrate or judge may impose CAM as a condition of pre-trial release in certain DWI cases where the person was previously arrested and/or convicted of a prior DWI. CAM is an ankle bracelet that measures perspiration for the presence of alcohol.

Continuous Alcohol Monitoring is quite expensive, costing $75 to install and a $12/day fee, which, for a year of use, will cost approximately $4,000. For a 120 days of Continuous Alcohol Monitoring, that can cost $1,500.

In certain cases, a defendant may be able to show the court that he or she can’t afford the cost of CAM, then the defendant may be able to argue that the failure to have CAM may not be a grounds for revocation if the failure was the result solely of an inability to pay.

Electronic House Arrest vs. Electronic Monitoring

Damon Chetson — Wed, 11 Jan 2012 12:57:36 +0000

This post deals with the post-conviction application of EHA or Electronic Monitoring in a Raleigh criminal case.

If a person is sentenced within an Intermediate (I) sanction block, that person must face at least 1 of several intermediate sanctions, including:

Split Sentence – up to a 1/4 of the sentence in custody, with the balance hanging over the offender’s head during a term of probation.
Drug Court – requires that the person face at least 120 days in order to qualify
Electronic House Arrest
Electronic Monitoring

There is a huge difference between Electronic House Arrest and Electronic Monitoring, at least as it’s applied in Wake County. EHA is far more restrictive, allowing the offender to leave his house only for the following three reasons:

School
Work
Counseling/Treatment

Other than those reasons, the person may not leave his or her house. In addition, the offender must first provide written proof to his probation officer in order to be allowed to leave his or her house to those locations. EHA is effectively a jail at home.

Electronic Monitoring is a less restrictive, but still closely monitored program that allows a person to leave his or her house during the day, with a curfew, to be determined by the probation officer, set each evening. A person’s travel may be restricted by the probation officer, but he may be permitted to go grocery shopping, pick up the kids from school, go to WalMart, and so forth, which are not permitted while on post-conviction EHA.

Pre-trial EHA is a different program, that isn’t as restrictive as post-conviction EHA.

Wake County lawyer Damon Chetson helps people accused of serious felonies, misdemeanors, drug charges, DWI and traffic offenses in Raleigh, Apex, Chapel Hill, and Cary, NC. Chapel Hill lawyer Damon Chetson also represents people charged with felonies and criminal charges in Raleigh, Cary, Apex, Chapel Hill, and Durham, North Carolina. Our lawyers are available day or night, weekdays or weekends. Call (919) 352-9411 for a free consultation.

North Carolina Structured Sentencing is No Longer Structured

Damon Chetson — Tue, 10 Jan 2012 14:30:57 +0000

Up until the mid-1990s, North Carolina had a sentencing system called Fair Sentencing. The major criticisms of Fair Sentencing were that:

There was no truth in sentencing. The actual sentence served was usually much lower than the stated sentence at sentencing.
There was disparity in how people were treated from place to place, and defendant to defendant.
The system was uneven and difficult for lay people to understand and interpret.

After years of study, in the mid-1990s North Carolina introduced Structured Sentencing with six prior record levels, and 10 sentencing classes, with each crime being assigned a sentencing level based on the seriousness of the crime.

The idea of structured sentencing was to end parole and to introduce truth in sentencing.

Misdemeanors were categorized by four levels – A1 to 3 – and three prior record levels.

Almost from the start, however, there were deviations from the Structured Sentencing system. For instance, DWIs have always been governed by the prior Fair Sentencing system, in part because the legislature wanted to punish DWIs more harshly than the newly established Structured Sentencing scheme would allow if DWIs were made a misdemeanor within Structured Sentencing.

Next, the legislature decided that drug trafficking was too serious a crime to be left to structured sentencing. So, while drug trafficking nominally carries with it a Class, each level of drug trafficking has specific mandatory minimums and drug trafficking sentences are not determined by looking at the offender’s prior record level.

Next, the legislature decided that certain sex offenses were too serious to be left to structured sentencing. So, while forcible rape is nominally a B1 felony, it carries with it a mandatory minimum sentence of 25 years, taking it out of Structured Sentencing. That 25 years is set regardless of a person’s prior record level.

These little tweaks here and there have meant that, over time, North Carolina’s Structured Sentencing system has looked more like a hodgepodge. Truth in sentencing has become something less than entirely truthful.

The Justice Reinvestment Act passed in 2011 and now fully in effect in North Carolina as of January 1, 2012 blows a hole in the Structured Sentencing scheme by creating an entirely new program that looks a lot like parole, even though it’s technically called Advanced Supervised Release.

As if the legislature doesn’t entirely trust judges, it requires that the prosecutor not object to putting the defendant into the DOC’s ASR program. If the person is admitted into the program at the time of sentencing, then he is eligible release on his Advanced Supervised Release date which is either the minimum sentence at the bottom of the mitigated range for the same Class and Prior Record Level, or is 80 percent of his minimum sentence if he’s sentenced in the mitigated range.

Eligible defendants must fit into certain Class and Prior Record Levels in order to qualify for the ASR program. And only the sentencing judge can place the person into the ASR program if the prosecutor doesn’t object.

The program is a good move in the right direction, because it incentivizes defendants to take advantage of programs in the DOC to earn ASR release, and then supervises them for a period of time after release.

And it credits worthy offenders, getting them out of prisons earlier, and lessening the financial burden to the State.

But it represents essentially a return to parole, which in my view is a good thing, but which runs counter to the whole concept behind Structured Sentencing.

Rationalizing sentencing only goes so far. Leniency must be built into the system to incentivize offenders. Overall NC’s criminal sanctions are overly punitve. Moving toward a less structured, but more humane criminal justice sytem is the way to go.

Scope of Entitlement for Indigent Services

Damon Chetson — Mon, 09 Jan 2012 15:55:22 +0000

Any person, including non-citizens, is entitled to representation and, if that person cannot afford an attorney, both the United States Constitution and North Carolina law guarantee that person the right to an attorney.

The attorney – whether he or she is a public defender who works in the Wake County Public Defender’s Office or a private attorney contracted by the statewide office of Indigent Defense Services (IDS) – is not necessarily free. If the person is convicted, whether by plea or at trial, the person may be ordered to pay the cost of the attorney whether as part of the criminal judgment or through a civil judgment by the state against the individual.

N.C.G.S. 7A-451 lays out the scope of entitlement, which are the various hearings or events when a person may be entitled to have appointed counsel present.

The key feature of a court appointed lawyer in the state courts is that the right to the lawyer for an indigent person does not attach until the person is arrested and charged with a crime. Once the person is arrested and charged, the person then is informed at his First Appearance (in front of a District Court judge) of his right to a lawyer. He is asked whether he wants to hire a lawyer, have a lawyer appointed, or represent himself.

If he indicates that he wants to have a lawyer appointed by the court because he cannot afford a lawyer, he is usually instructed to fill out an affidavit of indigence, which is a sworn form on which he lists his assets, income, and liabilities or obligations. If the judge determines that he is in fact indigent, a Wake County District Court judge will appoint the Wake County Public Defender’s office (who will, in turn, represent the person by assigning the case to a Public Defender or assign the case to a private lawyer on one of the appointment lists.)

If the judge determines that the person is not indigent or the person indicates he will hire his own lawyer, the person is then left to select, hire, and pay a private lawyer to represent him during his case.

A private lawyer may enter a notice of appearance (verbally in open court or in writing or by filing a motion) which is either limited to a specific part of the case or a general appearance for the entirety of the case up to and including trial.

In the federal system, an individual may request an appointed lawyer after he receives a Target Letter from the United States Attorney or after in certain cases involving testimony at a grand jury.

In the state system, no such right exists, and an individual is not entitled to any representation prior to arrest. Consequently, many people do not seek lawyers prior to arrest, which means that they are oftentimes left without adequate legal advice during the most crucial stage of their cases.

In any Raleigh criminal matter, it makes sense to have a lawyer from as early a point as possible, even if ultimately you may not be able to afford the lawyer through the whole case. Having a lawyer early in a case can protect your rights at a vital time.

Probation Violations and Revocations in North Carolina

Damon Chetson — Sat, 07 Jan 2012 20:44:38 +0000

Recent changes to North Carolina’s post-conviction laws change the authority of the judge to handle probationers who violate the terms of their probation.

For all probation violations on or after December 1, 2011, the judge may only revoke for a new criminal offense or for absconding. The practice in many parts of the state is that a judge will not revoke on a new pending criminal matter, although in Wake County sometimes the probation office will sometimes file violations even where the new criminal offense has not resulted in a conviction.

For other violations, a court may order contempt, modification, or confinement in response to violation (CRV). A CRV for felony probation is 90 days and for misdemeanor probation is up to 90 days. If the remaining sentence in a felony is less than 90 days, then the Defendant will serve the entire remaining sentence. It’s unclear whether the same rule applies for misdemeanors.

The CRV is also called a “dunk”.

Any time served on the CRV is credited against the active time available.

Note sex offenders are treated differently. Any type of violation is grounds for possible revocation is a sex offender case.