Massachusetts Courts have adopted a new Court Order starting in September of 2015 to deal with conditions of release in Probation hearings. According to the new order a judge may order a person released on certain conditions after there has been a Probation violation.
Any condition of release in a probation violation hearing can be in place for until the probation case is over, usually 30 days.
After Judge finds that a person has violated terms and conditions of probation a judge may set certain conditions of release on a person. The condition may impose one or a combination of conditions.
Report to Probation as directed
Electronic monitoring. The probationer shall submit to electronic monitoring, which may include
Required residence. The probationer shall reside at a specified address, which may be verified by unannounced home visits by probation.
Abstinence and testing. The probationer shall abstain from the consumption of narcotics, including medical marijuana (if so ordered), and/or alcohol, with testing to verify such abstinence.
Motor vehicle restrictions. The probationer shall not operate a motor vehicle, with such exceptions as the court may allow.
Violation of Conditions of Release in Probation Surrender Case
If the court or a probation officer has reasonable grounds to believe that a probationer has violated a condition of release, the court or probation officer may summons the probationer for a hearing or, if there is probable cause, issue an arrest warrant. A probation officer, if there is probable cause, may arrest the probationer without a warrant. The court shall then hold a hearing as soon as practicable to determine whether there is probable cause to believe that the probationer has violated a condition of release. The rules of evidence shall not apply, and this determination may be “decided based on documents (e.g., police reports) and the representations of counsel.” Paquette v. Commonwealth, 440 Mass. 121, 133 (2003). The court may, in its discretion, allow the presentation of testimonial evidence and cross-examination “when the circumstances of a particular case warrant.” Id. If the court determines that there is probable cause that a probationer has violated such a condition of release, the court shall have the authority, in the exercise of discretion, to order the probationer detained until the completion of the probation violation hearing. See id. at 126 (“if the person violates the explicit condition of his release, then his liberty can be curtailed”). When granted conditional release, a person’s “continued freedom [i]s entirely within his own control, and the deprivation thereof [i]s an inevitable consequence of his alleged failure to conform his conduct . . . to the explicit condition of his earlier release.” Id. at 129.
4. Conditions of release imposed under Rule 5(c) are not conditions of probation. A violation of a condition of release shall not itself be the basis for a finding of a violation of probation, although the judge may consider such violation in determining a proper disposition under Dist./Mun. Cts. R. Prob. Viol. P. 8(d) and 9(b).
Effective September 8, 2015.