District Court Standing Order
District/Municipal Court Rules District Court Standing Order 4-15: Conditions of release at a probation detention hearing
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Standing Order 4-15
This standing order is issued pursuant to Dist./Mun. Cts. R. Prob. Viol. P. 5(c) to set forth the only permissible conditions of release that may be imposed after a court finds probable cause at a probation detention hearing to believe that a probationer has violated a condition of probation. Such conditions are intended to be of limited duration, applying only until the probation violation hearing, which shall be within thirty days, absent “extraordinary circumstances.” Dist./Mun. Cts. R. Prob. Viol. P. 3(b)(iii), 3(c)(vi), 4(d). Conditions may be set only when the court, in the exercise of discretion, decides not to detain the probationer. Conditions of release shall be set forth in writing and a copy thereof served in hand to the probationer.
Upon a finding of probable cause that a probationer has violated a condition of probation, the court may impose any one or a combination of the following conditions:
a. No contact
The probationer shall have no contact with a specified person or persons, in person, by telephone, in writing, electronically, or otherwise, either directly or through someone else.
b. Stay away
The probationer shall stay a defined distance away from a specified person, persons, business, or location.
c. Report as directed
In addition to any preexisting reporting requirements, the probationer shall report to the probation department as ordered by the court or, with the court’s authorization, as directed by the probation department.
d. Electronic monitoring
The probationer shall submit to electronic monitoring, which may include
i. house arrest, with such exceptions as the court may allow;
ii. curfew, requiring the probationer to be at a specified address between specified hours; and/or
iii. exclusion zones, as set by the court.
e. Required residence
The probationer shall reside at a specified address, which may be verified by unannounced home visits by probation.
f. Abstinence and testing
The probationer shall abstain from the consumption of narcotics, including medical marijuana (if so ordered), and/or alcohol, with testing to verify such abstinence.
g. Motor vehicle restrictions
The probationer shall not operate a motor vehicle, with such exceptions as the court may allow.
If the court or a probation officer has reasonable grounds to believe that a probationer has violated a condition of release, the court or probation officer may summons the probationer for a hearing or, if there is probable cause, issue an arrest warrant. A probation officer, if there is probable cause, may arrest the probationer without a warrant. The court shall then hold a hearing as soon as practicable to determine whether there is probable cause to believe that the probationer has violated a condition of release. The rules of evidence shall not apply, and this determination may be “decided based on documents (e.g., police reports) and the representations of counsel.” Paquette v. Commonwealth , 440 Mass. 121, 133 (2003). The court may, in its discretion, allow the presentation of testimonial evidence and cross-examination “when the circumstances of a particular case warrant.” Id. If the court determines that there is probable cause that a probationer has violated such a condition of release, the court shall have the authority, in the exercise of discretion, to order the probationer detained until the completion of the probation violation hearing. See id. at 126 (“if the person violates the explicit condition of his release, then his liberty can be curtailed”). When granted conditional release, a person’s “continued freedom [i]s entirely within his own control, and the deprivation thereof [i]s an inevitable consequence of his alleged failure to conform his conduct . . . to the explicit condition of his earlier release.” Id. at 129.
Conditions of release imposed under Rule 5(c) are not conditions of probation. A violation of a condition of release shall not itself be the basis for a finding of a violation of probation, although the judge may consider such violation in determining a proper disposition under Dist./Mun. Cts. R. Prob. Viol. P. 8(d) and 9(b).