Legal Question in Criminal Law in Minnesota

Can a probation officer change the judges orders for my probation (without consulting the courts) and make me get a second drug assessment done because they didn't like the first ones findings?

Asked on 9/21/18, 7:14 am

1 Answer from Attorneys

Thomas C. Gallagher Gallagher Criminal Defense

Conditions of probation are set by the judge. The Probation Officer's job is to supervise the defendant to ensure that he or she complies with all conditions; and if not, to request a revocation of stayed sentence which would then be decided by the judge. Unfortunately, many judges will order "catch all" conditions that are broad and vague. One example could be "follow all rules and instructions of Probation Department." As often is the case in life, there is a noticable and significant difference between theory and practice. In theory, only the judge can set conditions that are enforceable. But the practical reality reflects that judges do not want to supervise probationers and delegate authority to do so to probation officers. Judges will generally back up "their" probation officers just about every time. Having said that, there have been many cases where a judge would not or could not revoke probation where the "condition" was set by the P.O. and not the judge (as reflected in the written sentencing Order and-or the sentencing hearing transcript (if prepared) .

Issues of interpretation can arise. If the judge ordered a condition of a chemical dependency assessment and follow any of its recommendations, what does that mean? Many would interpret it to mean one of those, not two. But, most judges will tend to want to back up the P.O. if brought to their attention. In the situation described it appears the choices are: 1) refuse to do as the P.O. demands are risk a revocation hearing and what may come of that; or 2) ask your lawyer to file a motion before the sentencing judge to clarify that by having the evaluation done, a second one is not required.

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Answered on 9/21/18, 7:28 am

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