Probation Violation Response

TABLE OF CONTENTS

1. Caption
2. Introduction and Procedural History
3. Response to Allegations
4. Constitutional Rights
5. Standard of Proof
6. Structured Intermediate Sanctions Defense
7. Mitigating Factors
8. Alternative Sanctions Proposed
9. Evidence and Witness List
10. Conclusion and Prayer for Relief
11. Certificate of Service

Caption

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF [________________________________]

Introduction and Procedural History

COMES NOW Defendant, [________________________________], by and through [his/her] attorney, [________________________________], Esq., OSB No. [________], and hereby files this Response to the Probation Violation Allegations.

1. On [__/__/____], the Defendant was convicted of / pleaded guilty to [________________________________] in violation of ORS [________________________________], a Class [____] felony / misdemeanor.

2. On [__/__/____], the Court placed Defendant on probation for a period of [____] months/years subject to general and special conditions pursuant to ORS 137.540.

3. On [__/__/____], a probation violation report was filed alleging:

a. [________________________________]

b. [________________________________]

c. [________________________________]

4. The Defendant was arrested on [__/__/____] and was brought before a magistrate on [__/__/____].

Response to Allegations

A. Classification of Alleged Violations

☐ Technical Violation(s): Allegation(s) [____] are technical violations of probation conditions.

☐ New Law Violation(s): Allegation(s) [____] allege new criminal conduct.

B. Specific Responses

Allegation 1: [________________________________]

☐ Denied. The Defendant denies this allegation. [________________________________]

☐ Admitted with Explanation. The Defendant admits the factual basis but offers the following explanation: [________________________________]

☐ Admitted. The Defendant admits this allegation.

Allegation 2: [________________________________]

☐ Denied. [________________________________]

☐ Admitted with Explanation. [________________________________]

☐ Admitted. The Defendant admits this allegation.

Constitutional Rights

The Defendant asserts the following constitutional and statutory rights:

1. Right to Written Notice. The Defendant is entitled to written notice of the claimed violations. Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

2. Right to Prompt Magistrate Appearance. The probationer must be brought before a magistrate during the first 36 hours of custody, excluding holidays, Saturdays, and Sundays. ORS 137.545(4).

3. Right to Timely Hearing. The revocation hearing must be conducted within 14 calendar days following arrest/detention, or the probationer must be released. ORS 137.545(5).

4. Right to Counsel. The Defendant is entitled to representation by counsel. Gagnon v. Scarpelli, 411 U.S. 778 (1973).

5. Right to Confront and Cross-Examine Witnesses. The Defendant has the right to confront and cross-examine adverse witnesses. Morrissey, 408 U.S. at 489.

6. Right to Present Evidence. The Defendant has the right to be heard and to present witnesses and documentary evidence.

Standard of Proof

The State bears the burden of proving each alleged violation by a preponderance of the evidence. The Defendant submits the State cannot meet this burden as to the denied allegations because:

[________________________________]

Structured Intermediate Sanctions Defense

The Defendant asserts:

☐ The supervising agency has a duty to impose structured, intermediate sanctions for probation violations pursuant to ORS 137.593 before seeking full revocation.

☐ Intermediate sanctions have not been exhausted.

☐ Available custodial sanctions under ORS 137.596 have not been imposed.

☐ The alleged violations are amenable to graduated responses, including: [________________________________].

☐ Previous sanctions imposed include: [________________________________].

Sentencing Upon Revocation Framework

☐ The original presumptive sentence was probation; upon revocation, the sentence would be limited to the supervisory authority for up to a maximum of six (6) months.

☐ The original sentence was a departure from a presumptive prison sentence; upon revocation, the sentence would be a prison term up to the maximum presumptive prison term.

☐ The presumptive prison term was 12 months or less; the sentence upon revocation would be to the supervisory authority for up to the maximum presumptive prison term.

Mitigating Factors

The Court should consider the following mitigating factors:

☐ Employment: Defendant is currently employed at [________________________________] since [__/__/____].

☐ Education: Defendant is enrolled in / has completed [________________________________].

☐ Treatment: Defendant is participating in [________________________________] since [__/__/____].

☐ Family: Defendant is the primary caretaker for [________________________________].

☐ Compliance: Defendant has substantially complied with all other conditions, including: [________________________________].

☐ Circumstances: The alleged violation occurred due to: [________________________________].

☐ Health: Defendant has medical/mental health conditions: [________________________________].

☐ Time Served: Defendant has served [____] of [____] months/years of probation without prior violations.

☐ Other: [________________________________]

Alternative Sanctions Proposed

In lieu of full revocation, the Defendant respectfully requests:

☐ Continuation of probation under existing terms and conditions.

☐ Modification of probation conditions pursuant to ORS 137.540, specifically: [________________________________].

☐ Structured intermediate sanctions under ORS 137.593, including:

• ☐ Custodial sanction of [____] days under ORS 137.596
• ☐ Community service of [____] hours
• ☐ Day reporting
• ☐ Enhanced supervision

☐ Enrollment in treatment program: [________________________________].

☐ Extension of probation period by [____] months.

☐ Increased supervision/reporting requirements.

☐ Substance abuse testing at increased frequency.

☐ Other: [________________________________]

Evidence and Witness List

A. Documentary Evidence

B. Witness List

1. [________________________________] — [relationship/title] — will testify regarding [________________________________].

2. [________________________________] — [relationship/title] — will testify regarding [________________________________].

3. [________________________________] — [relationship/title] — will testify regarding [________________________________].

Conclusion and Prayer for Relief

WHEREFORE, the Defendant respectfully requests that this Court:

☐ Dismiss the probation violation allegations in their entirety;

☐ Find that the State has failed to meet its burden of proof;

☐ Impose structured intermediate sanctions in lieu of revocation;

☐ Continue probation under existing or modified conditions;

☐ Grant such other and further relief as the Court deems just and appropriate.

Respectfully submitted,

Date: [__/__/____]

_____________________________________________
[________________________________]
Attorney for Defendant
OSB No. [________]
[________________________________]
[________________________________]
[________________________________]
Telephone: [________________________________]
Email: [________________________________]

Certificate of Service

I hereby certify that on [__/__/____], a true and correct copy of the foregoing RESPONSE TO PROBATION VIOLATION ALLEGATIONS was served upon:

☐ Hand-delivered to:
☐ Electronically filed and served via the Oregon Judicial Department eFiling system to:
☐ Mailed via U.S. Mail, postage prepaid, to:

[________________________________]
Deputy District Attorney
[________________________________] County District Attorney's Office
[________________________________]
[________________________________]

_____________________________________________
[________________________________]

Sources and References

• ORS 137.540 — Conditions of Probation; Modification
• ORS 137.545 — Proceedings in Case of Violation
• ORS 137.551 — Revocation of Probationary Sentences
• ORS 137.593 — Structured Intermediate Sanctions
• ORS 137.596 — Custodial Sanctions
• Morrissey v. Brewer, 408 U.S. 471 (1972)
• Gagnon v. Scarpelli, 411 U.S. 778 (1973)