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Interstate Commission for Adult Offender Supervision | Ensuring Public Safety for the 21st Century

Rule 5.108 - Probable cause hearing in receiving state

(a) An offender subject to retaking that may result in a revocation shall be afforded the opportunity for a probable cause hearing before a neutral and detached hearing officer in or reasonably near the place where the alleged violation occurred.

(b) No waiver of a probable cause hearing shall be accepted unless accompanied by an admission by the offender to 1 or more violations of the conditions of supervision.

(c) A copy of a judgment of conviction regarding the conviction of a new criminal offense by the offender shall be deemed conclusive proof that an offender may be retaken by a sending state without the need for further proceedings.

(d) The offender shall be entitled to the following rights at the probable cause hearing:

  1. Written notice of the alleged violation(s);
  2. Disclosure of non–privileged or non–confidential evidence regarding the alleged violation(s);
  3. The opportunity to be heard in person and to present witnesses and documentary evidence relevant to the alleged violation(s);
  4. The opportunity to confront and cross–examine adverse witnesses, unless the hearing officer determines that a risk of harm to a witness exists.

(e) The receiving state shall prepare and submit to the sending state a written report within 10 business days of the hearing that identifies the time, date and location of the hearing; lists the parties present at the hearing; and includes a clear and concise summary of the testimony taken and the evidence relied upon in rendering the decision. Any evidence or record generated during a probable cause hearing shall be forwarded to the sending state.

(f) If the hearing officer determines that there is probable cause to believe that the offender has committed the alleged violations of conditions of supervision, the receiving state shall hold the offender in custody, and the sending state shall, within 15 business days of receipt of the hearing officer’s report, notify the receiving state of the decision to retake or other action to be taken.

(g) If probable cause is not established, the receiving state shall:

  1. Continue supervision if the offender is not in custody.
  2. Notify the sending state to vacate the warrant, and continue supervision upon release if the offender is in custody on the sending state’s warrant.
  3. Vacate the receiving state’s warrant and release the offender back to supervision within 24 hours of the hearing if the offender is in custody.

References: ICAOS Advisory Opinions

2-2005 [Although Rule 5.108 requires that a probable cause hearing take place for an offender subject to retaking for violations of conditions that may result in revocation as outlined in subsection (a), allegations of due process violations in the actual revocation of probation or parole are matters addressed during proceedings in the sending state after the offender’s return]

Gagnon v. Scarpelli, 411 U.S. 778 (1973)
Ogden v. Klundt, 550 P.2d 36, 39 (Wash. Ct. App. 1976)
See, People ex rel. Crawford v. State, 329 N.Y.S.2d 739 (N.Y. 1972)
State ex rel. Nagy v. Alvis, 90 N.E.2d 582 (Ohio 1950)
State ex rel. Reddin v. Meekma, 306 N.W.2d 664 (Wis. 1981)
Bills v. Shulsen, 700 P.2d 317 (Utah 1985)
California v. Crump, 433 A.2d 791 (N.J. Super. Ct. App. Div. 1981)
California v. Crump, 433 A.2d at 794, Fisher v. Crist, 594 P.2d 1140 (Mont. 1979)
State v. Maglio, 459 A.2d 1209 (N.J. Super. Ct. 1979)
In re Hayes, 468 N.E.2d 1083 (Mass. Ct. App. 1984)
Morrissey v. Brewer, 408 U.S. 471 (1972)
In State v. Hill, 334 N.W.2d 746 (Iowa 1983)
See e.g., State ex rel. Ohio Adult Parole Authority v. Coniglio, 610 N.E.2d 1196, 1198 (Ohio Ct. App. 1993

History: Adopted November 4, 2003, effective August 1, 2004; amended October 4, 2006, effective January 1, 2007; amended September 26, 2007, effective January 1, 2008; amended August 28, 2013, effective March 1, 2014; amended September 14, 2016, effective June 1, 2017.