What Happens If You Violate Probation in Pennsylvania?
If you violate probation in Pennsylvania, your probation officer can file a violation, you may be detained, and a judge will hold hearings to decide whether you broke a condition and what should happen next. Under 42 Pa.C.S. 9771(b), the court can add conditions, impose a brief sanction or revoke probation and resentence you, and Pennsylvania Rule of Criminal Procedure 708(B) requires a hearing "as speedily as possible" where you are present and represented by counsel.
Jail for a technical violation is now capped by statute. Act 44 of 2023, approved December 14, 2023 and in effect since June 11, 2024, rewrote 42 Pa.C.S. 9771(c) to create a presumption against total confinement for technical violations and to limit any jail term based on them to a maximum of 14 days for a first technical violation and 30 days for a second, with narrow exceptions. The Lehigh County Court of Common Pleas and the REFORM Alliance both confirm the June 11, 2024 effective date. This post explains what counts as a violation, how Gagnon hearings work, what a judge can do, and how Act 44's early termination review may help people who stay compliant.
What Counts as a Probation Violation in Pennsylvania?
A probation violation is any failure to follow the terms of a probation order, and Pennsylvania law sorts violations into two groups.
New criminal conduct. Being convicted of, or pleading guilty to, a new crime while on probation.
Technical violations. Act 44 defines a technical violation as a violation of the specific terms and conditions of probation other than by committing a new crime you are convicted of or plead guilty or no contest to. Examples can include:
Missing appointments with your probation officer
Failing a drug or alcohol test
Missing court-ordered treatment or classes
Moving or leaving the county without permission
The difference matters because the law treats the two groups very differently when it comes to jail.
What Are Gagnon I and Gagnon II Hearings?
Pennsylvania probation violation hearings are often called Gagnon hearings after the U.S. Supreme Court's 1973 decision in Gagnon v. Scarpelli. The Court held that "a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing" under the standards set in Morrissey v. Brewer.
Gagnon I: The Preliminary Hearing
The first hearing asks whether there is probable cause to believe you violated probation. If you were detained, it also bears on whether you stay in custody while the violation is resolved.
Gagnon II: The Final Hearing
The second hearing decides whether you actually violated probation and, if so, what the consequence will be. Rule 708(B) requires a finding of record that you violated a condition before probation can be revoked. You have the right to be present and represented by counsel.
Scheduling of the two steps varies by county, so ask your lawyer how your county handles them.
What Can a Judge Do After a Probation Violation?
Under 42 Pa.C.S. 9771(b), the court has three main options once a violation is proven:
Increase the conditions of probation, such as adding treatment, more reporting or electronic monitoring
Impose a brief sanction under 42 Pa.C.S. 9771.1
Revoke probation and resentence you
Revocation does not automatically mean prison. Act 44 limits when the court can order total confinement after revoking probation.
How Does Act 44 Limit Jail for Technical Violations?
Act 44 created a presumption against total confinement for technical violations. Under the amended 9771(c), a court can order total confinement only if one of these applies:
You were convicted of another crime
There is clear and convincing evidence that the technical violation created an identifiable threat to public safety that less restrictive options cannot address
A preponderance of the evidence shows the technical violation was sexual in nature, involved assaultive behavior or a credible threat to cause bodily injury, involved possession or control of a firearm or dangerous weapon, involved the manufacture, sale or distribution of controlled substances, involved absconding, or involved an intentional and unexcused failure to follow programming or conditions on three or more separate occasions
Even when one of those exceptions applies, a jail term based on a technical violation is capped at 14 days for the first technical violation and 30 days for the second. For a third or later technical violation, the court can impose any sentencing alternative that was available at the original sentencing.
These caps do not apply to violations based on a new criminal conviction, and a new conviction can bring a separate sentence on the new case as well. How a judge weighs prior record in that new case is covered in our post on how Pennsylvania sentencing guidelines work.
Can Probation End Early in Pennsylvania?
Act 44 also created a probation review conference under 42 Pa.C.S. 9774.1. You become eligible for a review:
On a misdemeanor, after two years of probation or 50 percent of the probation sentence, whichever comes sooner
On a felony, after four years of probation or 50 percent of the probation sentence, whichever comes sooner
The conference must be held within 60 days of eligibility. Certain recent violations can block early termination, including violations that were sexual in nature, assaultive, involved a firearm or dangerous weapon, involved drug distribution, involved absconding, or involved three or more intentional and unexcused programming failures.
The practical lesson: a clean record on supervision now affects how soon supervision can end. If you finish probation and want the underlying record cleared, our post on getting a criminal record expunged in Pennsylvania explains the options.
What Should You Do If You Are Accused of Violating Probation?
Act quickly and carefully.
Contact a lawyer before the first hearing. Rule 708 requires representation by counsel, and early preparation can affect whether you are held.
Do not make statements to your probation officer about the alleged violation until you have spoken with your lawyer.
Gather proof of compliance, such as treatment attendance records, pay stubs, payment receipts and test results.
Keep reporting and following every other condition. A second violation while the first is pending makes everything harder.
Show up for every court date. A missed date can lead to a bench warrant and new trouble on supervision.
If the violation is based on a new arrest, the new case follows its own track. Our guide on what to do after an arrest in Pennsylvania covers those first steps. If probation came through a diversion program instead, see our post on what ARD is and whether it could clear your record, since ARD has its own rules for removal from the program.
FAQ
Will I go to jail for a first technical violation in Pennsylvania?
Not automatically. Under Act 44, there is a presumption against total confinement for technical violations, and any jail based on a first technical violation is capped at 14 days, even when an exception applies.
What is a Gagnon hearing?
It is a probation violation hearing named after Gagnon v. Scarpelli (1973). Gagnon I decides probable cause, and Gagnon II decides whether a violation happened and what the consequence will be.
Do I have a right to a lawyer at a probation violation hearing?
Yes. Pennsylvania Rule of Criminal Procedure 708(B) requires that the defendant be present and represented by counsel at the revocation hearing.
Can a new arrest violate my probation?
A new arrest can lead to a detainer and a violation filing. The Act 44 limits on jail for technical violations do not cover violations based on a new criminal conviction.
When can I ask for early termination of probation?
Act 44 created a probation review conference after two years or half of the sentence for a misdemeanor, and after four years or half of the sentence for a felony, whichever is sooner. The conference must be held within 60 days of eligibility.
Can I appeal a probation revocation?
Revocation decisions can be challenged on appeal. Our post on appealing a criminal conviction in Pennsylvania explains the deadlines and courts involved.
Talk to a Probation Violation Defense Attorney
Bolkovac Law Offices defends clients accused of probation violations across Western Pennsylvania. Attorney Mark D. Bolkovac began his career at the Westmoreland County Adult Probation and Parole office, was admitted to practice in Pennsylvania in 2002 and was appointed to the Pennsylvania Commission on Sentencing in 2024. The firm has offices in Greensburg, Indiana, Murrysville and Uniontown and offers free telephone consultations. Learn more about our probation violation defense and our wider criminal defense practice.
Visit Bolkovac Law Offices or call 724-837-2626 today. Contact us for more information.
The information in this article is for general information purposes only and should not be taken as legal advice for any individual case or situation. Reading this article does not create an attorney-client relationship. Every case is different and outcomes depend on the specific facts involved. To discuss your situation, contact Bolkovac Law Offices at 724-837-2626.
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