By Erin Gerstenzang

One of my favorite judges in Georgia describes probation as a jail sentence that you serve on the outside so long as you 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 probation explanations the court provides.

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

What rights are you forfeiting?

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

One fact attorneys, judges, and prosecutors occasionally fail to mention is that probation 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. These actions occur 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.

Additionally, most probation terms include the possibility of a probation officer coming to your home. However, most of them do not make home visits for many common misdemeanor and traffic offenses.

Will you be exposed to jail time when you go on probation?

Another consideration of probation is that it can lead to unexpected jail time. For instance, if you are on probation because you need extra time to save money for a fine, and you are later charged with possession of marijuana, the judge who handled the speeding ticket could authorize putting you in jail for the remainder of the speeding ticket probation. This happens because almost all probation sentences include the rule against violating any laws, including new traffic tickets.

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 authority over your life to someone else.

Why is probation usually 12 months long for misdemeanor offenses in Georgia?

You should also take into account the amount of time you could spend on probation. In Georgia, judges frequently sentence people to 12 or more months in connection with a misdemeanor or traffic offense. The length is 12 months because that is the maximum amount of jail time you could face on most traffic and misdemeanor offenses.

If you are coming from another state, be cautious when considering going on probation because Georgia handles probation differently than other states. Probation is also used more frequently. People are put on probation for 12 months for seemingly non-punitive reasons. One of the most common examples is when the court uses it to facilitate payment plans for large fines on simple traffic offenses. This option can feel like a great way to buy extra time, but it can have disastrous consequences down the road.

Another reason a judge might sentence you to 12 months of probation is that it is more efficient when it comes to managing the court calendar. Sometimes the judge wants to close a case early even though the person has not had time to complete all of the special conditions relevant to the case. For instance, in a drug case, you 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, the court uses probation to make sure they get done. The judge assigns the probation officer the task of monitoring your progress, and if you do not complete these things, or you are arrested on a new offense, then the judge has the power to put you in jail for the remainder of probation. For this reason, a 12-month probation sentence can quickly become a lengthy jail sentence when things don’t go according to plan.

The court may also use probation when there is a victim in the case. Let’s say there was a traffic accident, and the other driver incurred medical expenses, or you destroyed their property. Usually, insurance will take care of it. However, it is not uncommon for judges to put you (the driver) on probation to give the prosecutor time to schedule a restitution hearing. At the hearing, the judge will rule whether you should compensate the victim for any financial loss connected to the offense.

Additionally, judges like to use probation to ensure a person behaves a certain way. For example, if you are charged with underage drinking, the judge may want to put you on probation for 12 months and have you tested regularly to make sure you are no longer consuming alcohol. In situations like this, some counties require probationers to call an automated line every morning to see if they have been randomly selected to submit to a drug and alcohol test.

Other times, judges will sentence someone to a lengthy probation period to get them into a court-ordered treatment program. Some of the DUI and Drug Court programs require 24 months or more of probation.

Finally, although in many cases misdemeanor probation is designed to be anywhere between 0 and 365 days, certain offenses 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.

In summary, while probation might seem like a favorable option, it is not something you should take lightly. Carefully take all of these factors into account before accepting a probation plea. And if you need help navigating your legal options, you can schedule a free consultation with EHG Law.