Probation provides an alternative to incarceration for many people who have been convicted of a misdemeanor or felony in California.

Most first-time, non-violent offenders are eligible for probation and can remain out of police custody if they follow the court-ordered terms of their probation.

If you’re facing criminal charges, a criminal defense attorney can assist you in the process of requesting probation as a sentencing alternative. To help get you started, we’ve provided answers to some of the most frequently asked questions about California probation laws below.

1. What is probation?

In California, certain criminal offenses come with sentencing guidelines that may include jail time. Probation is a sentencing alternative that allows you to avoid spending time in state prison or county jail if you’re convicted of a crime that might otherwise result in incarceration. The purpose of probation is to:

Rehabilitate offenders
Protect the public, and
Provide safety and/or restoration to victims

Probation requires you to abide by specific, court-ordered “terms,” or rules of your probation, for a set period. The details and terms of probation will differ according to whether you’ve been convicted of a misdemeanor or felony offense.

2. What is the difference between misdemeanor probation and felony probation?

There are two types of probation in California:

Misdemeanor probation, also known as “summary probation,” or “informal probation,” and
Felony probation, which is also called “formal probation.”

The two types of probation differ in a few key ways, including:

Duration
How they are supervised, and
Additional monitoring (such as an electronic ankle bracelet)

Misdemeanor probation

Misdemeanor probation typically lasts up to two years. Misdemeanor offenders are not assigned a probation officer but are typically required to check in with a judge at scheduled court appearances. It’s rare for a judge to require any kind of additional monitoring, like wearing an electronic ankle bracelet, during misdemeanor probation. However, a judge may request “probation reports” from the county probation departments in certain misdemeanor cases, such as those involving sex crimes.

Some California misdemeanors for which probation is commonly granted in lieu of jail time include:

Driving under the influence (DUI) – Vehicle Code 23152 VC
Drunk in public – Penal Code 647f PC
Drug possession – Health and Safety Code 11350 HSC
Petty theft – Penal Code 484(a) PC
Shoplifting – Penal Code 459.5 PC
Theft of $25,000 or more – Penal Code 487 PC (grand theft)
Residential burglary or robbery – Penal Code 460 PC
Trespassing – Penal Code 602 PC
Domestic violence – as defined under multiple statutes including Penal Code 243(e)(1), domestic battery and 273d – child abuse
Indecent exposure – Penal Code 314(1) PC
Prostitution – Penal Code 647(b) PC

Felony probation

Because felony crimes are considered more serious than misdemeanors, felony probation is typically longer and more stringent than misdemeanor probation and often requires more supervision. California felony probation typically lasts between two and five years.

If you receive felony probation, you will be required to regularly check in with an assigned deputy probation officer. In some cases, a judge may require an offender to wear an electronic ankle monitor while on felony probation.

3. How do I get probation in place of incarceration in California?

For most misdemeanor offenses, such as drug possession and DUI, probation is the standard sentence. Reasons why you might receive a jail sentence instead of probation for a misdemeanor include:

The judge has reason to believe you pose a risk to public safety
You have an extensive criminal history

If you’re convicted of a felony, you can request probation as part of a plea bargain.

Your criminal defense attorney can request a sentencing hearing where they will ask the judge to grant you probation. Probation will be granted or denied at the judge’s discretion, however, you may supply character witnesses to help demonstrate your eligibility.

If the offense is a felony or a misdemeanor sex crime, the judge may also be supplied with a report from the county probation department that will inform their decision.

4. What are some common California probation terms?

Probation allows you to stay out of custody provided you abide by court-ordered probation terms. The terms of your probation will depend on the severity and nature of the offense and other relevant circumstances.

While probation terms differ on a case-by-case basis, some California probation terms include:

Submitting to drug, alcohol, or other kinds of testing
Completing a court-approved treatment program for alcohol or drug abuse/addiction, domestic violence, or other types of counseling or rehabilitation
Avoiding criminal activity and arrests
Abiding by any restraining orders held against you
Maintaining employment or educational status
Completing court-ordered community service
Paying all necessary fines, court fees, and/or restitution
Terms relevant to specific offenses, such as the use of an ignition interlock device in a DUI case

Failing to abide by the terms of your probation can result in legal consequences such as harsher probation terms or incarceration.

5. Can I travel if I’m on probation?

Travel restrictions during probation vary depending on whether you are on misdemeanor or felony probation. If you are on misdemeanor probation, you will need to get the court’s permission to travel out of state if:

Your probation term is one year or longer
The crime for which you were convicted was your second or subsequent DUI, is a registered sex offense, involved the possession or use of a firearm, or involved the use or threat of physical or psychological harm

If you are on felony probation, you must get permission from the California probation department in order to travel. The process of requesting and receiving permission to travel generally takes at least a few weeks, so it is recommended that you submit your request well in advance of your intended travel date.

6. Can I modify the terms of my probation?

It is possible to request a modification to the terms of your probation at any time during your probation term by:

Submitting a formal request to a judge,
Submitting a written request to your court-appointed probation officer (if you are assigned one), or
Having your attorney submit a written request to the prosecutor on your behalf

Some common reasons to have probation terms modified include:

Certain terms of probation are too cumbersome to complete during your assigned term (such as counseling or treatment programs)
You want to have a protective order modified or removed
You have a valid reason to have your ability to travel reinstated, such as a family emergency

A judge will consider multiple factors when determining whether to modify probation terms or remove a protective order. Often, the most important things that the judge will consider are:

Whether you have taken responsibility for your behavior
The impact that changing your probation terms or protective orders will have on victims, family members, or others
Treatment programs or other probation terms that have already been completed, and
Whether modifying the terms of your probation would be considered more just from a legal standpoint

If you are interested in pursuing a modification to the terms of your probation, it is crucial that you seek the advice of a criminal defense attorney prior to submitting a request.

7. Is it possible to end my probation early?

You can petition to have your probation terminated early at any time. To do so, your attorney can help you file a motion after which you or your lawyer will attend a court hearing where you can argue to have your probation end before its scheduled date. The judge will consider multiple of factors in the decision to terminate your probation, including:

Your criminal history and the likelihood that you will commit a future offense
How much of your term you have already served
How well you’ve complied with the terms of your probation
The seriousness of the offense
Whether being on probation is causing you hardships, such as difficulty finding employment or educational opportunities
Whether you have demonstrated remorse and personal growth

If you think you may be eligible for early termination of your probation, a criminal defense attorney can advise you throughout the process and help you make your case to the judge.

8. What happens if I violate the terms of my probation?

If the court becomes aware that you’ve violated the terms of your probation, you may be summoned to appear in court, or a warrant may be issued for your arrest.

You will then be entitled to a probation hearing where the prosecutor will attempt to prove that you violated probation, and you can make an argument in your defense. The judge will take both arguments into account as well as other factors, such as your criminal record, when making a decision.

If the judge finds that you are guilty of violating the terms of your probation, they can either:

Let you remain on probation, essentially giving you a second chance, or
Terminate your probation status and reinstate the jail or prison sentence that you would have received had you not been granted probation.

If the judge does allow you to remain on probation, they may alter the terms to make them harsher and stricter than before.

9. When can I get my record expunged?

There are many benefits to getting your criminal record expunged, such as no longer being required to disclose your convictions to potential employers.

In order to have your record expunged, you must file a petition to the court. When you are eligible to file a petition depends on whether you are on misdemeanor or felony probation.

If you are on misdemeanor probation, you can petition to have your record expunged as soon as you successfully complete your probation.

If you have successfully completed felony probation, you will still need to have your felony reduced to misdemeanor before you can file expungement paperwork.

If a judge allows you to terminate your probation early, they may grant you an expungement at the same time. Your attorney can assist you in completing the necessary paperwork and filing a petition for record expungement.

If you’ve been arrested on criminal charges or are currently on probation in California, the Helfend Law Group can offer the expert legal advice or representation you’re looking for.

With more than four decades of experience defending clients against all types of charges, attorney Robert M. Helfend has earned a reputation as one of LA’s most trusted criminal defense attorneys.

No matter where you are in the legal process, the Helfend Law Group is ready to assist you. Call today to schedule a free consultation – 1-800-834-6434.