It is important that Rule 5.108 be read in conjunction with other rules regarding retaking and conditions, since this may affect the outcome of the proceedings and the impact of subsequent proceedings in the sending state. At the conclusion of a hearing, the presiding official must determine whether probable cause exists, believing that the supervised individual committed the alleged violations of the conditions of their supervision. However, a determination made in a proceeding for mandatory retaking must be made in view of Rule 5.103(a). This rule provides, in part, that officials in the receiving state must show through documentation that the supervised individual has engaged in behavior requiring retaking. See Rule 5.103(a). To support the receiving state’s request for mandatory retaking, as well as to provide a basis for subsequent proceedings in the sending state, which could result in revocation, the hearing officer in the receiving state should determine whether sufficient cause exists to conclude that the act or pattern of non-compliant behavior committed by the supervised individual is appropriately documented and deemed revocable. Behavior requiring retaking means “an act or pattern of non-compliance with conditions of supervision that could not be successfully addressed through the use of documented corrective action or graduated responses and would result in a request for revocation of supervision in the receiving state.” See Rule 1.101.
If a probable cause hearing is conducted based on alleged violations of supervision conditions imposed by either the receiving or sending state, two determinations may be required. First, the hearing officer must determine whether the supervised individual committed the alleged violation, that is, whether the evidence establishes noncompliance with a condition of supervision. If a violation is found, a second consideration may arise when revocation is contemplated. Specifically, if the sending state notifies the receiving state that it intends to pursue revocation based on the violation and requests a hearing, or if the receiving state conducts the hearing to create a record sufficient to support possible revocation by the sending state, the proceeding must ensure that an adequate factual record is developed for use in the sending state’s revocation process. Under Gagnon and Morrissey, the hearing officer must determine whether the violation is of sufficient nature that it would typically result in revocation in the receiving state. A hearing officer could conceivably find that the violation occurred, but that retaking is not warranted because it would not rise to the level of revocation in the receiving state. Two important points must be emphasized. First, the determination of the “likelihood of revocation” would not be conclusively binding on the sending state, as only the state granting conditional release has jurisdiction to make a final determination on revocation. See Scott v. Commonwealth, 676 S.E.2d 343, 347 (Va. App. 2009); Bills v. Shulsen, 700 P.2d 317 (Utah 1985); State ex rel. Reddin v. Meekma, 306 N.W.2d 664 (Wis. 1981). There is, nevertheless, a potential for conflicting conclusions between officials in the sending and receiving states regarding the severity of a violation and its implications.
Second, despite the fact that the determination of “likelihood of revocation” is based on the receiving state’s standards, a sending state could conceivably obviate the need for a probable cause hearing by asserting that it has no intention of revoking the supervised individual’s conditional release. Such an assertion by the sending state would prevent it from using the violation as a predicate for revocation, notwithstanding the jurisdiction to do so. This reading of Rule 5.108(a) is consistent with the general principles of Gagnon and Morrissey. The purpose of the probable cause hearing in the receiving state is not to test the sufficiency of a sending state’s decision to retake, but to determine the merits of alleged violations that occurred in the receiving state and to secure a record for subsequent proceedings in the sending state. Under the due process principles articulated in Gagnon and Morrissey, an assertion by the sending state that it has no intention to revoke conditional release (thus negating the need for a probable cause hearing in the receiving state) would act to bar consideration of the violations in any subsequent revocation proceedings.