By Erin Gerstenzang

One of my favorite judges in Georgia likes to describe probation as a jail sentence that you serve on the outside so long as you can abide by the terms of probation. He often warns folks that if they cannot follow the rules, he will order them to spend the remainder of probation behind bars. Although it may sound harsh, what I appreciate about this warning is that it is much more honest than a lot of other explanations of probation that are given in court.

Prosecutors sometimes describe probation as a mere formality which will *give* the person in court the additional benefit of extra time to save more money or complete community service – as if probation is a reward or gift. This explanation falls short in a variety of ways, and it is easy for people to under-appreciate the severity of what can happen when things do not go as planned while on probation.

And while there are cases where probation should be viewed as a gift, it is also frequently used as a way for the government to police behavior – including conduct that has little to do with the original charge.

One of the things attorneys, judges and prosecutors occasionally fail to mention is that probation also serves as a formal invitation to law enforcement to come into your home, search your property, and tell you what to do on a regular basis. This is because you give up important constitutional rights when you agree to probation – especially if you waive your 4th Amendment rights at the time of the plea.

Will the probation officer come to your home?
Happily, most probation officers do not make home visits for many common misdemeanor and traffic offenses, but most probation terms contemplate the possibility of it happening.

Will you be exposed to jail time when you go on probation?
Probation can also lead to unexpected jail time. For instance, if someone is on probation because they needed extra time to save money for the fine, and they are later charged with possession of marijuana, the judge who handled the speeding ticket could be authorized to put the driver in jail for the remainder of the speeding ticket probation. This is because almost all probation sentences include the rule against violating any laws (including new traffic ticket). An arrest for marijuana possession (or new traffic ticket) authorizes your original judge to put you in jail for the remainder of the speeding probation for simply being arrested on a new charge. Luckily it is rare to see traffic court judges exercise their power in this way, however, anyone considering probation should be aware of this power and act accordingly. Going on probation means giving a lot of power over your life to someone else.

Why is probation usually 12 months long for misdemeanor offenses in Georgia?
In Georgia, judges frequently sentence people 12 or more months of probation in connection with a misdemeanor or traffic offense. The length is 12 months because that is the maximum amount of jail time you could be facing on most traffic and misdemeanor offenses. If you are coming from another state, be cautious when thinking about going on probation as Georgia handles probation quite differently than other states.

In Georgia, probation is used far more frequently than some other states. People are put on probation for 12 months for seemingly non-punitive reasons. One of the most common examples of this is when it is used to facilitate payment plans for large court fines on simple traffic offenses. This can feel like a great way to buy some extra time when you are speaking with the deal, but it can have disastrous consequences down the road.

In Georgia, there are a number of reasons a judge might sentence someone to 12 months of probation.

One reason judges like probation is for efficiency reasons when it comes to managing the court calendar. Sometimes the judge wants to close a case early on even though the person has not yet had time to complete all of the special conditions relevant to the case. For instance, in a drug case, the person may have to pay a fine, complete community service, get treatment and take a class. Because those things are often not completed at the time of the plea, probation is used as a way to make sure that those things are done. The judge assigns the probation officer the task of monitoring your progress, and if things are not completed, or the person on probation is arrested on a new offense, then the judge has the power to put them in jail for the remainder of probation. A 12-month probation sentence can quickly become a lengthy jail sentence when things don’t go according to plan.

Another use of probation is when there is a victim in the case. Let’s say there was a traffic accident and the other driver incurred medical expenses, or property was destroyed. Although usually, insurance will take care of it, it is not uncommon for judges to put the driver on probation to give the prosecutor time to schedule a restitution hearing so that the judge can make a ruling on whether the victim should be compensated for any financial loss in connection with the offense.

Judges also like to use probation in order to ensure that a person on probation behaves a certain way. For instance, if someone is charged with being underage and consuming alcohol, the judge may want to put that person on probation for 12 months and have probation test that person regularly to make sure they are not drinking alcohol anymore. Some counties require probationers to call an automated line every morning to see if they have been randomly selected to come in that day and submit to a drug and alcohol test.
Other times judges will sentence someone to a lengthy probation period in order to get them into a court-ordered treatment program. Some of the DUI and Drug Court programs actually require 24 months or more of probation.

Finally, although in many cases misdemeanor probation can be designed to be anywhere between 0 and 365 days, there are certain offenses that actually require a minimum of 12 months on probation. For example, a conviction of DUI in Georgia requires 12 months of probation. In those cases, the judge would not be permitted to shorten the probation period – regardless of how compelling the reasons may be.