5.29.100 Revocation of Probation.
a) Arrest for Violation of Probation. A Probation Officer may arrest or cause to be arrested a supervised offender for violation of a condition of probation. Any Probation Officer may cause the arrest of the supervised offender without a warrant by providing Tribal Police with a statement that the Probation Officer has found probable cause to believe the offender has violated the conditions of his or her probation.
b) If the initial probable cause statement is oral, a written statement shall be prepared by the Probation Officer within 24 hours of the arrest. The Probation Officer’s statement shall be sufficient to commit the offender to incarceration pending a probable cause determination by the Tribal Court.
c) In the event of arrest, the Probation Officer shall cause to be filed a petition for revocation of probation, which shall include, but not be limited to, facts showing the basis for the arrest and for revocation of probation.
d) A probationer arrested without a warrant is entitled to determination of probable cause for the grounds for his or her arrest by a Tribal Court Judge within two judicial days of the time of arrest. The presence of the offender shall be required for the Judge to make the probable cause determination. If probable cause is found, the arrested probationer shall be or remain incarcerated without bail until the probation revocation hearing is held, provided the Judge in his or her discretion may set bail and such other conditions for release.
e) Probation Revocation Hearing.
1) A probationer is entitled to a hearing before the court prior to revocation of probation on the date set in any notice of revocation unless good cause for delay exists. The burden is on the party asking for the delay to show that good cause exists.
2) A probationer who is arrested for a probation violation and who remains incarcerated on the first Monday after the arrest shall appear no later than the date of any regular probation calendar occurring in the same week as the first Monday referenced above and the revocation hearing will be set there for no later than the tenth day after that appearance date, unless good cause for delay exists. The burden is on the party asking for the delay to show that good cause exists.
3) The probationer shall be entitled to notice of the date and time of the hearing, and the grounds for the proposed revocation. Notice to the probationer may be accomplished by personal service or service by first class mail to the probationer’s mailing address on record with the Tribal Court.
4) A violation of a condition is deemed to be a knowing violation if the probationer signed, and was given a copy of, the conditions of the probation.
5) Supervised offenders do not have a right to a jury trial at a revocation hearing.
6) If the probationer admits to violating a condition of probation, the court may revoke the probation after the probationer has had the opportunity to offer testimony or evidence regarding any circumstances tending to mitigate the violation.
7) If the probationer does not admit to violating a condition of the probation, the Prosecutor or Probation Office has the burden of proving by a preponderance of the evidence that the probationer violated a condition of the probation. Evidence may not be suppressed on the ground that, if an admission of a violation, no warning was given of a right not to incriminate oneself. The Judge may issue an order that any testimony or information from the defendant may not be used against the defendant in any criminal case arising from the same charge or incident that is the basis for the revocation.
8) Revocation may be based on demonstrably reliable hearsay evidence unless the Judge request witnesses present on the issue. The Prosecutor may show any aggravating circumstances, and the probationer may show any mitigating circumstances.
9) The court shall determine the appropriate disposition of a petition for revocation. An order revoking probation shall be in writing.
10) Penalty upon Revocation of Probation. A probationer who is found, after a hearing, to have violated a condition of his or her probation may be required:
i. In the case of probation during a suspended sentence, to serve the term of the original sentence in whole or in part, including incarceration and payment of fines; or
ii. In the case of deferred imposition of sentence, to serve such sentence as may be imposed by the court after a sentencing hearing.
iii. Probation may be continued with consent of defendant and approval by the court.