We are Delaware Criminal Defense Attorneys who handle VOP or Violation of probation cases in Delaware Superior Court and Court of Common Pleas. The information on this page applies to VOP cases in the State of Delaware. Several of our Delaware criminal defense lawyers accept cases involving VOPs in Delaware. If you have a VOP case outside of Delaware, the following information may not apply. You should consult an attorney in the state where your VOP case is pending.
What is a VOP?
VOP stands for violation of probation. Once a criminal case has been resolved by way of a plea bargain or conviction at trial, the defendant may be placed on probation. During the course of that probation, the defendant will be required to follow certain rules and regulations. Some of these rules and regulations may include refraining from further illegal conduct, refraining from having further contact with police or the victim, successfully completing a drug treatment program, remaining clean while on probation, and other terms. The defendant will have a probation officer supervising the successful completion of the probation portion of the sentence. If that probation officer has reason to believe the defendant is not complying with the terms of probation, the probation officer may institute a new case with the sentencing court in order to review the terms of the sentence. That new matter is called a violation of probation or VOP.
Is there a difference between a technical and other violations?
Often you with hear people say a violation is only a technical violation and therefore the potential penalty is limited. This is absolutely not true, a violation is a violation. Although some violations may be considered more serious than others, all violations are subject to punishment. the potential punishment is only limited by your back time.
Am I entitled to a hearing in a VOP?
If the defendant has been accused of violating the terms of his or her probation, then he or she is entitled to a hearing before the sentencing judge in order to be heard before the court concludes that he or she has violated the terms of the probation.
What Judge will hear your VOP?
Generally, the Judge that sentenced you originally will hear your VOP. However, any Judge from the same Court can hear the VOP. This helps to ensure that hearing is held on a timely basis.
What does the State of Delaware have to prove?
At a VOP hearing, the state of Delaware, through the police, probation officers or other witnesses is required to prove the evidence to shows that the defendant violated the terms of his or her probation in Delaware. This is not like a new criminal case, where the state has to prove all elements of each offense beyond a reasonable doubt. This is a hearing where the state of Delaware must prove to the Judge that there is a preponderance of the evidence, a much lower standard than proof beyond a reasonable doubt.
Why do most folks waive their hearing or stipulate (agree) to the facts?
In many cases, defendants will simply stipulate (agree) to the facts rather than have a full-blown contested hearing. In many cases, there is a low likelihood that contesting the facts of the violation will be successful. For example, if a defendant failed a urine drug screen on half a dozen occasions, it is unlikely that the probation officer will be unable to prove a violation. In cases where there is little chance of beating the violation, it may make strategic sense to stipulate to the facts and negotiate the most favorable outcome. If you do not agree to the facts, you have a right to a Contested VOP Hearing.
What is a Contested VOP hearing?
A contested hearing is like a Bench Trial before Judge, the State is required to bring in all necessary witnesses to testify to prove the violation. For example, if the violation is that you failed a urine test; the State will be required to bring in the person that supervised the test. The contested hearing generally is not done at the first VOP hearing. If a contested hearing is requested, it will generally be scheduled within a week or two.
Can I suppress evidence if I’m on probation?
Yes, even if you were on probation, you do have a reduced constitutional right to be secure in your home and personal effects. The burden on the State to show probable cause for a search is lower when you are on probation, but you still can make a motion to suppress evidence seized if the probation officer or police illegally searched and seized that evidence.
What can I be sentenced to at a VOP?
There is a common belief that for a VOP, you can only be sentenced to 25% of your back time; back time is the amount of Level 5 time (jail time) that was suspended when you were originally sentenced. You can be sentenced to 100% of your back time at your first VOP hearing. There is no limit to the number of VOPs you can have in a case, as long as back time remains.
Should I hire a lawyer for a VOP?
If you or a family member has been charged with a violation of probation, you should consult with a private attorney. Criminal defense attorneys generally do not charge any consultation fee to discuss a violation of probation case. When you meet with the attorney, the attorney will tell you what his fee will be for handling the VOP hearing. The attorney should also be able to advise you on what potential penalties you may face in a VOP case. The attorney can also explain the hearing process and what you should expect at the hearing. We believe that in many cases our attorneys obtain better outcomes for people charged with a VOP than they can get by representing themselves or with court-appointed counsel.
How much does it cost to hire a criminal defense lawyer for a VOP hearing?
Our criminal defense attorneys charge flat fees for representation in violation of probation cases. Our flat fees range from $1000.00 and up depending upon the complexity of the case. People often ask if we accept payment plans for VOPs. In VOP cases, we generally do not accept payment plan arrangements.