Probation Violation Lawyer in Gallatin, TN
01. Probation Violation
How a Probation Violation Case Works
A probation violation can put the original sentence back on the table. You have real rights at the hearing, and since 2021 Tennessee limits jail for many technical violations. Talk to a lawyer first.
How a violation case starts. When a judge learns you may have broken the law or a probation condition, the judge can issue a warrant for your arrest. For a technical violation reported by a probation officer, the judge may instead issue a criminal summons that orders you to come to court (Tenn. Code Ann. § 40-35-311(a)). The case goes back to the judge who granted probation, which can be a General Sessions judge on a misdemeanor.
Your rights at the hearing
• The judge must hold the hearing "at the earliest practicable time."
• You must be present, you have the right to a lawyer, and you can present your own witnesses and evidence (§ 40-35-311(b)).
• If you cannot afford a lawyer, you can ask the court to appoint one for a probation revocation (Tenn. Sup. Ct. R. 13).
• The State must prove the violation by a preponderance of the evidence (more likely than not), not beyond a reasonable doubt (§ 40-35-311(d)).
• To use a drug test lab report without the technician, the State must give you the report and affidavit at least 5 days before the hearing (§ 40-35-311(c)).
• If probation is revoked, you have the right to appeal (§ 40-35-311(e)(3)).
Technical Violations and Your Options
Tennessee law treats these very differently (§ 40-35-311(g)).
• Non-technical: a new felony, a new Class A misdemeanor, a "zero tolerance" violation under the Department of Correction's sanction matrix, absconding, or contacting the victim against a probation condition. The judge may revoke probation and order you to serve the original sentence, which may be reduced by time you served successfully on probation (§ 40-35-311(e)(2)). If the revocation is based on a new conviction, the judge may run the original sentence consecutively to the new one (§ 40-35-310(a)).
• Technical: everything else, such as a missed appointment, a missed payment or a curfew problem.
Limits on jail for technical violations (felony probation)
• First instance: the judge cannot revoke felony probation, even temporarily, based on one instance of technical violation (§ 40-35-311(d)(2)).
• Second or later instance: the judge may temporarily revoke and order no more than 15 days for a first revocation, 30 days for a second, 90 days for a third, and up to the rest of the sentence for a fourth or later one. Or the judge may resentence you to probation with a community-based alternative to incarceration (§ 40-35-311(e)(1)).
These caps are written for felony probation. On misdemeanor probation, the judge has the broader options in § 40-35-310.
Other outcomes. The judge can change or remove conditions, or release you from supervision, but cannot make conditions harsher except through a revocation (§ 40-35-308(a), (b)). At a revocation hearing the judge can extend probation by up to one year, but only for specific findings: repeated, intentional failure to do court-ordered treatment; intentional contact with the victim or the victim's family; or intentional failure to pay restitution you can afford (§ 40-35-308(c)).
On judicial diversion? If you violate a condition of judicial diversion, the court may enter a judgment of guilt and sentence you (§ 40-35-313(a)). That can cost you the dismissal and expungement diversion offers.
State probation vs. private probation. Felony probation in Tennessee is supervised by the Department of Correction's Community Supervision division. Misdemeanor probation can be supervised by private probation companies regulated by the state's Private Probation Services Council. Either way, only a judge can revoke your probation.
Call (615) 997-7618. Arrested after hours? Send us a message and we are notified right away.
