My son was arrested for dissordely intox and ressist arrest. the charges for the disordely intox were dropped and the ressist arrest Nolle Prossed. no charges, no fees. He even did some time on it (9 days) and was release when the judge found out that the warrantless arrest on the VOP had no documentation neither the PO violated him on them.
Right now the only thing on the docket is Violation Report Form Filed. no dates. The parole officer told my son he sended an e-mail to the judge to clear the VOP. A call to the clerk of courts just gave me information that they have no idea why it stands where is at.
A lawer offered to make a motion to dismiss but the money he want vs what we got is too big.
is there a way we can clear this?
The VOP does not necessarily have to be dismissed due to a dismissal of the underlying violation charge by the State Attorney's Office, since the standard of proof for a Violation of Probation is lower than that of an original criminal charge. In other words, the State may have determined that they did not have enough evidence to convince a jury beyond and to the exclusion of a reasonable doubt that your son committed the crimes of Disorderly Intoxication and Resisting Arrest; however, in the VOP hearing, the judge could find that other conditions of probation were violated merely by your son's presence at a bar or that he was consuming alcohol at all. The fact that the Probation Officer is recommending a dismissal of the VOP is a good sign. Also, not any big worries that the VOP wasn't automatically dismissed, that's normal. The judge will deal with it at the VOP arraignment or one of the pre-trials. I would highly recommend hiring an attorney though; a VOP is potentially a bad thing. Use 's "Find a Lawyer" tool to locate other experienced criminal attorneys in your area and arrange consultations with at least three to find one you like and to get an idea of the range of fees they charge for your son's circumstances. It may be well worth the investment in an experienced attorney to make sure your son's VOP is handled properly and no mistakes are made. Good luck!
If you are charged with a Violation of Probation for a new criminal charge and you are able to beat the charge (Ie: Nolle Prosse/Dismissal), it still does not abate the Violation of Probation charge.
A violation of probation can be dismissed if the charges that caused the violation are nolle prossed; however, it is not mandatory. As stated by previous attorneys who answered this question, the burden of proof is different at a violation of probation hearing than it is for a new charge. A new charge must be proven to a jury beyond a reasonable doubt. A violation of probation must be proven to a judge by a preponderance of the evidence. This means that if the state does not have enough evidence to prove a new charge to a jury, it may still have enough evidence to prove the violation of probation to a judge.
Regarding the attorney you planned to hire: I am not sure what he will argue in his motion to dismiss. The fact that the state dropped the charges is irrelevant, as noted above. There are other possible grounds to dismiss a violation of probation, but none that you mentioned in your question.
That being said, you should hire an attorney to assist with the violation of probation. The attorney can negotiate with the prosecutor to try to convince him or her to drop the violation of probation. More importantly, if the state wants to push the issue and have a final violation of probation hearing, an experienced attorney will be able to make the right arguments to give your son the best shot at winning the hearing, or alternatively, setting up a good appellate issue.
Good luck.
Yes a Judge can dismiss your son's VOP if the new law violations were dropped, but that doesn't mean it is definately going to happen. Sometimes, the state recommends a dismissal based on these facts and/or a Judge will dismiss the VOP. However, the arrest in itself is enough to prove a violation, so the state can proceed with a violation of probation hearing against you. As some of the other attorneys said, the standard of proof for a VOP is preponderance of the evidence which is lower than the beyond a reasonable doubt standard that the state needs to overcome for general crimes.
