“A VOP is a violation of probation. You can only get a VOP if you are on probation. VOPs are the most challenging thing that an attorney does, in my opinion, in a criminal court.”

Hi, I’m attorney Ben Schwartz,

Today we are talking to attorney Bill Deely. We are both with the Law Firm of Schwartz and Schwartz. Bill is primarily a criminal defense lawyer. He sees clients in our Wilmington, Delaware office and Dover, Delaware office. He takes cases all over the state of Delaware.

Ben: Bill today I want to talk to you about VOPs.
Bill: OK.
Ben: You told me previously that you really liked handling VOP cases. You told me that you feel like this is really the area of practice that suits you best. Can you tell folks who might be watching this video, what is a VOP and how do VOPs work, in Delaware?
Bill: A VOP is a violation of probation. You can only get a VOP if you are on probation. VOPs are the most challenging thing that an attorney does, in my opinion, in a criminal court.
There are several reasons for that:

  1. The person has already been convicted of a crime. That’s why they’re on probation.
  2. While they’re on probation, they have limited rights and if they violate probation or they’re accused of violating probation, the standard of proof is not beyond a reasonable doubt. It’s essentially more likely than not.
  3. When you go into a VOP hearing, there’s no one in the courtroom that’s on your side. The judge who’s presiding is generally the judge that sentenced you for your original crime. The probation officer is not in your favor or you wouldn’t be there. If there’s drug and alcohol treatment people, they are probably against you because you may have tested positive. The prosecutor is certainly not on your side. So, the defense attorney goes in with limited information, lots of enemies in the courtroom, and must make the best case that he or she can for that defendant who’s accused of violating probation.

Ben: What do you feel makes you well suited for handling these types of cases?
Bill: I think I have a lot of life experience. I have a lot of experience as a criminal defense attorney. I understand the system. I understand sentencing. I understand the options that are available to the court. I also have a good rapport with the Probation Department and the prosecutors. We can talk to probation officers and try to negotiate a better plea, even before you come to court if we have the information. Those things combined allow you to try to negotiate the best possible deal, or the deal that is going to get you out of jail as quick as possible, or get the minimum treatment programs that you may have to endure. It’s a lot about understanding the system, understanding the judges, knowing what the judges are looking for, knowing what the judges favor or what their pet peeves are.
Ben: Do you have any tips for folks that might be watching this video, who might be facing a violation of probation, or family members who might have a son or a brother or a different type of family member who is facing a VOP?
Bill: First, contact the attorney as quickly as possible. Give the attorney as much time as you can give that attorney to work up the case. They have to go visit your son or daughter or brother or whatever in the prison, it gives him time to do that. It gives him time to contact the probation officer to get information, as to what in fact, the violation that’s alleged entails. It allows the attorney to work with the case.
A couple of things I can tell you if you are on probation, you must follow the rules. Whatever the probation officer tells you to do, you must do. If you have a problem with something probation tells you to do, contact your defense attorney who represented you in the case and see if they can get that restriction modified, it often happens. If you disregard the instruction, they’re going to violate you. There’s no such thing as a technical violation. Any violation of probation carries equal weight. Some may be more serious than others but they all carry you getting the maximum time potentially. So, follow the rules. If you have a question as to what the rules are, contact your defense attorney. If you call probation to tell them you can’t make an appointment, the burden’s on you to make the appointment. They often will not call you back to acknowledge that you did that and they can violate you. Pay attention to what they say – follow the rules. You can get off probation quicker and you can be flowed down more quickly if you’re following the rules.
Ben: What do you have to say to folks who are on probation, they get a VOP, they contact the attorney that originally handled the criminal case and either they can’t get through to that attorney, or that attorney has no interest in helping them with the new VOP? Is it unusual to go to another attorney? In other words, if that happens would it be unusual for folks to call us for help with their VOP?
Bill: It is not unusual at all to get a different attorney for a VOP than the one that handled the case. The reason for that is because of a VOP is essentially a new crime, a new charge, it’s a new case. So, if your original attorney was a conflict attorney and you got that attorney as a conflict attorney, there is no conflict in a VOP. So, any attorney can represent you and no private attorney, no public defender is going to be insulted if you ask for outside advice. In fact, I would recommend looking around for the people who have the best reputation and go to that attorney to get your VOP taken care of.
Ben: If folks want to speak to you, do you offer free consultations in VOP cases in the state of Delaware? How do people get a hold of you?
Bill: They can call the main number at the office, 302-678-8700 or they can contact me on my cell phone at 302-584-2755. I will be happy to get back to them.
Ben: Bill, thanks for taking the time today.
Bill: Thank you.