29-2266 Probation; violation; procedure.
29-2266. Probation; violation; procedure.(1) For purposes of this section:(a) Administrative sanction means additional probation requirements imposed upon a probationer by his or her probation officer, with the full knowledge and consent of the probationer, designed to hold the probationer accountable for substance abuse or noncriminal violations of conditions of probation, including:(i) Counseling or reprimand by his or her probation officer;(ii) Increased supervision contact requirements;(iii) Increased substance abuse testing;(iv) Referral for substance abuse or mental health evaluation or other specialized assessment, counseling, or treatment;(v) Imposition of a designated curfew for a period not to exceed thirty days;(vi) Community service for a specified number of hours pursuant to sections 29-2277 to 29-2279;(vii) Travel restrictions to stay within his or her county of residence or employment unless otherwise permitted by the supervising probation officer; and(viii) Restructuring court-imposed financial obligations to mitigate their effect on the probationer;(b) Noncriminal violation means a probationer's activities or behaviors which create the opportunity for re-offending or diminish the effectiveness of probation supervision resulting in a violation of an original condition of probation, including:(i) Moving traffic violations;(ii) Failure to report to his or her probation officer;(iii) Leaving the jurisdiction of the court or leaving the state without the permission of the court or his or her probation officer;(iv) Failure to work regularly or attend training or school;(v) Failure to notify his or her probation officer of change of address or employment;(vi) Frequenting places where controlled substances are illegally sold, used, distributed, or administered;(vii) Failure to perform community service as directed; and(viii) Failure to pay fines, court costs, restitution, or any fees imposed pursuant to section 29-2262.06 as directed; and(c) Substance abuse violation means a probationer's activities or behaviors associated with the use of chemical substances or related treatment services resulting in a violation of an original condition of probation, including:(i) Positive breath test for the consumption of alcohol if the offender is required to refrain from alcohol consumption;(ii) Positive urinalysis for the illegal use of drugs;(iii) Failure to report for alcohol testing or drug testing; and(iv) Failure to appear for or complete substance abuse or mental health treatment evaluations or inpatient or outpatient treatment.(2) Whenever a probation officer has reasonable cause to believe that a probationer has committed or is about to commit a substance abuse violation or noncriminal violation while on probation, but that the probationer will not attempt to leave the jurisdiction and will not place lives or property in danger, the probation officer shall either:(a) Impose one or more administrative sanctions with the approval of his or her chief probation officer or such chief's designee. The decision to impose administrative sanctions in lieu of formal revocation proceedings rests with the probation officer and his or her chief probation officer or such chief's designee and shall be based upon the probationer's risk level, the severity of the violation, and the probationer's response to the violation. If administrative sanctions are to be imposed, the probationer shall acknowledge in writing the nature of the violation and agree upon the administrative sanction. The probationer has the right to decline to acknowledge the violation; and if he or she declines to acknowledge the violation, the probation officer shall take action pursuant to subdivision (2)(b) of this section. A copy of the report shall be submitted to the county attorney of the county where probation was imposed; or(b) Submit a written report to the sentencing court, with a copy to the county attorney of the county where probation was imposed, outlining the nature of the probation violation and request that formal revocation proceedings be instituted against the probationer.(3) Whenever a probation officer has reasonable cause to believe that a probationer has violated or is about to violate a condition of probation other than a substance abuse violation or noncriminal violation and that the probationer will not attempt to leave the jurisdiction and will not place lives or property in danger, the probation officer shall submit a written report to the sentencing court, with a copy to the county attorney of the county where probation was imposed, outlining the nature of the probation violation.(4) Whenever a probation officer has a reasonable cause to believe that a probationer has violated or is about to violate a condition of his or her probation and that the probationer will attempt to leave the jurisdiction or will place lives or property in danger, the probation officer shall arrest the probationer without a warrant and may call on any peace officer for assistance. Whenever a probationer is arrested, with or without a warrant, he or she shall be detained in a jail or other detention facility.(5) Immediately after arrest and detention pursuant to subsection (4) of this section, the probation officer shall notify the county attorney of the county where probation was imposed and submit a written report of the reason for such arrest and of any violation of probation. After prompt consideration of such written report, the county attorney shall:(a) Order the probationer's release from confinement; or(b) File with the sentencing court a motion or information to revoke the probation.(6) Whenever a county attorney receives a report from a probation officer that a probationer has violated a condition of probation, the county attorney may file a motion or information to revoke probation.(7) The administrator shall adopt and promulgate rules and regulations to carry out this section. SourceLaws 1971, LB 680, § 21; Laws 2003, LB 46, § 11. AnnotationsWhere a complete record of the evidence and testimony is made at a probation revocation hearing, the court is not required to specify which particular evidence, exhibits, or witnesses were relied on for its judgment. State v. Jaworski, 194 Neb. 645, 234 N.W.2d 221 (1975).A written report from the probation officer is not a jurisdictional requirement in a probation revocation proceeding. State v. Kartman, 192 Neb. 803, 224 N.W.2d 753 (1975).Where errors in state probation revocation proceedings were not prejudicial to the probationer, he was not entitled to federal habeas corpus. Kartman v. Parratt, 397 F.Supp. 531 (D. Neb. 1975).