When a person on probation is arrested for a new offense, his or her probation officer will often request a probation detainer, which if granted, will prohibit the defendant from release on bail. Probation detainers can make it difficult for a defendant to formulate a defense strategy or get their affairs in order prior to trial. If your loved one is being held in prison on a detainer, it is critical to retain an experienced criminal defense attorney who can petition the court to have the detainer lifted.
Filing a Motion to Lift a Detainer
In some cases, probation judges are willing to lift a detainer and let a defendant post bail. To initiate the process, the defendant must file a motion describing a number of important details, including:
- The defendant’s probation history;
- The severity of the new allegations being made against the defendant; and
- Why the defendant should be permitted to make bail and fight the charges while out of custody.
Although judges are often reluctant to lift a detainer, they may be convinced to allow a probationer to make bail if the defendant can demonstrate that he or she:
- Is employed;
- Is supporting a family;
- Has a clean probation record;
- Is attending a drug/alcohol or other treatment program;
- Has serious health issues; and
- Has significant support from the community.
Whether a motion to lift a detainer is successful depends on the specific facts of the case, including the nature of the defendant’s charges as well as their background. If the judge finds the motion compelling, he or she has the discretion to order a hearing on the issue. Alternatively, a judge may lift the detainer without a hearing or choose to deny the motion entirely without giving the defendant an opportunity to plead their case. In the event that a judge orders a hearing, the court clerk will schedule one as soon as possible. In most cases, hearings will be held within a few weeks of the motion’s approval, although this largely depends on the court’s schedule and the judge’s preference.
If a judge decides not to lift a detainer, the defendant will be required to stay in custody until:
- The new charges are resolved, through trial, a plea deal, or dismissal; or
- The defendant serves the maximum sentence on the probation case.
Although denials are usually permanent, in some cases, when a defendant’s circumstances significantly change in some way during the course of the case, the judge may reconsider the initial denial. For instance, if a defendant’s felony charge is reduced to a misdemeanor, the judge may decide to approve a release.
Call us Today to Speak With an Experienced Philadelphia Criminal Defense Attorney
Probation detainers can make it extremely difficult for defendants to fight their charges. Because of this, if your loved one was arrested while on probation, please call the experienced criminal defense attorneys at van der Veen, O’Neill, Hartshorn, and Levin at 215-515-6892 to set up an initial consultation.