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Rule 5.108 - Probable Cause Hearing in Receiving State

(a) A supervised individual 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 supervised individual to 1 or more violations of the conditions of supervision that would result in the pursuance of revocation of supervision in the receiving state and require retaking.

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

(d) The supervised individual 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 supervised individual has committed the alleged violations of conditions of supervision that would result in the pursuance of revocation of supervision, the receiving state may hold the individual 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 supervised individual is not in custody.
  2. Notify the sending state to vacate the warrant, and continue supervision upon release if the supervised individual is in custody on the sending state’s warrant.
  3. Vacate the receiving state’s warrant and release the supervised individual back to supervision within 24 hours of the hearing if the individual 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]

Case Law
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; amended September 29, 2021, effective April 1, 2022: amended September 20 2023, effective March 1, 2024, amended September 11, 2024, effective November 1, 2024

References

Definitions

Click terms below to reveal definitions used in this rule.

Supervised Individual – means an “offender” defined by Article II of the Interstate Compact for Adult Offender Supervision as an adult placed under, or made subject to, supervision as the result of the commission of a criminal offense and released to the community under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice agencies, and who is required to request transfer of supervision under the Compact.

Probable Cause Hearing – a hearing in compliance with the decisions of the U.S. Supreme Court, conducted on behalf of a supervised individual accused of violating the terms or conditions of the supervised individual‘s parole or probation.

Receiving State – means a state to which a supervised individual requests transfer of supervision or is transferred.

Retaking - means the act of a sending state physically removing or causing to have a supervised individual removed, from a receiving state.

Sending State – means a state requesting the transfer of a supervised individual, or which transfers supervision of a supervised individual, under the terms of the Compact and its rules.

Shall – means that a state or other actor is required to perform an act, the nonperformance of which may result in the imposition of sanctions as permitted by the Interstate Compact for Adult Offender Supervision, its by-laws and rules.

Supervision – means the oversight exercised by authorities of a sending or receiving state over a supervised individual for a period of time determined by a court or releasing authority, during which time the supervised individual is required to report to or be monitored by supervising authorities, and to comply with regulations and conditions, other than monetary conditions, imposed on the supervised individual at the time of release to the community or during the period of supervision in the community.

Warrant – means a written order of the court or authorities of a sending or receiving state or other body of competent jurisdiction which is made on behalf of the state, or United States, issued pursuant to statute and/or rule and which commands law enforcement to arrest a supervised individual. The warrant shall be entered in the National Crime Information Center (NCIC) Wanted Person File with a nationwide pick-up radius with no bond amount set.

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