Could Social Distancing Mandates Result in Probation Violations?
The COVID-19 outbreak has resulted in public safety shutdowns and calls for social distancing. In addition to businesses and schools, non-profit agencies are also required to follow government guidelines for public safety. So, what is a person supposed to do if he or she was ordered to complete community service during the mandated closures? What if court-ordered alcohol, substance abuse, or AA meetings are cancelled? This is an unprecedented situation. However, for anyone on probation, it is better to be proactive than risk a probation violation and arrest warrant.
Terms of Probation: Community Service, Substance Abuse, and Counseling
When a person is placed on probation or under diversion agreement in Indiana, there are often requirements to complete community service, alcohol or drug classes, or counseling. There is also a court-imposed deadline for completing these obligations. In misdemeanor cases with a one-year period of probation, the probation terms are typically required to be completed within 180 days. This is also true for most diversion agreements. In felony cases, the deadlines are sometimes longer depending on the offense and length of probation.
If a person fails to complete probation terms by the deadline, the prosecutor can file a petition to revoke probation. This will result in the court setting a hearing and sometimes issuing an arrest warrant. At the hearing, the person faces serving his or her suspended time in jail or prison.
Is a COVID-19 Shutdown a Defense to Not Timely Completing Probation Terms?
The answer to this question has a lot of gray area. If a person has six months to complete community service, but lost two months due to government-ordered social distancing, is it a probation violation if he or she is not done on-time?
Because this is an issue of first impression, there are no Indiana statutes or court of appeals cases to turn to. The closest analogy would be a failure to pay court costs. Probation may not be revoked for failure to pay financial obligations unless the person recklessly, knowingly, or intentionally fails to pay. A person cannot me imprisoned solely for failing to pay costs if he or she was unable to do so. In the absence of a change in the law, judges will decide on a case by case basis whether a person is excused from timely completing probation terms during the COVID-19 outbreak. That is a very risky situation for probationers.
What Should Persons on Probation or a Diversion Agreement Do Right Now?
If social distancing restrictions and shutdowns impact your ability to complete the terms of probation or a diversion, you should be proactive. Don’t wait until a violation is alleged. An attorney can file notice with the court and seek an extension of time. By filing a formal notice with the court, you gain leverage in making a legal argument if a hearing becomes necessary. Given the extraordinary circumstances, it may be possible for an attorney to negotiate an extension of time. If you are on probation and have questions, call Gibson Law Office. Our attorneys will talk with you once for free so that you understand the situation. We have extensive experience and have represented clients in 82 Indiana counties. If you are worried about completing your probation terms call today. We can help.