Motion to Lift Detainer: Frequently Asked Questions about Probation Detainers in Philadelphia, PA
The Philadelphia criminal defense attorneys of Goldstein Mehta LLC may be able to help you get a probation detainer lifted. Our attorneys have represented clients who have been arrested for new charges while on probation. In some cases, we have been able to get the probation judge (“the back judge”) to quickly lift the detainer by filing a motion to lift the detainer. If you do not take action, you will remain in custody until your case is resolved, which could take a year or more. Call 267-225-2545 today for a complimentary criminal defense strategy session and to discuss the possibility of getting a detainer lifted while you are still facing new charges.
As criminal defense attorneys, we frequently receive questions from clients about probation issues. Some of the most common questions we receive are:
1) What is a probation detainer?
A probation detainer is an order from the defendant’s probation judge directing the prison system not to release the defendant until the defendant sees the judge. When a person who is on probation for a previous offense is arrested on new charges, in most cases, the defendant’s probation officer will lodge a detainer when the defendant goes through preliminary arraignment. The order prevents the defendant from being released even if the defendant is able to make bail. If the defendant does not retain counsel to address the probation issue first, the judge's order will remain in effect and the defendant will remain in custody until the new case is resolved. If the defendant beats the new case, then the defendant will likely be released without a hearing if there are no other probation violations. If the defendant is found guilty of something in the new case, then the defendant will have a probation violation hearing scheduled within a few weeks in front of the probation judge. At that hearing, the judge will find the defendant in violation and decide on a new sentence for the violation. The sentence could range from more probation to jail time.
2) How do I get a detainer lifted?
In some cases, it is possible to have the probation judge lift the detainer order and allow the defendant to fight the new charges while out on bail. Once a probation detainer has lodged against the defendant, the defendant's probation officer typically cannot lift it without the supervising judge's permission. Therefore, getting a detainer lifted will typically require retaining counsel to file a motion to lift the detainer. The motion to lift the detainer is a written motion which will set out the history of the defendant’s probation, the allegations in the new case, and the reasons why the defendant should be permitted to fight the charges from the street instead of from custody.
Judges are often reluctant to lift probation detainers because they are only lodged against defendants who were already on probation when they were arrested for a new case. However, our attorneys may be able to gather enough mitigation information about you or your loved one or information that shows that the Commonwealth’s evidence in the new case is weak that we can convince the judge to lift the order pending trial. For example, if a defendant who is on probation for drugs is arrested for a new misdemeanor drug case, we may be able to convince a judge to release the defendant if we can show that the defendant was working, supporting family members, and attending drug treatment. This is even more likely if we are able to arrange for the defendant to enter a program upon his or her release. Each case is different, and our attorneys offer a free criminal defense strategy session at which we can discuss the likelihood of success in filing a motion to get a detainer lifted.
3) How long does it take to get a detainer lifted?
Once we are retained to file a motion to lift a detainer, there is no set time period in which the probation judge must schedule a hearing on the motion. Our probation lawyers will typically be able to file the motion within a day or two of being retained. The rest of the time table is then dependent on the court system. The probation judge could deny the motion without a hearing, schedule a hearing, or lift the detainer without a hearing. In most Philadelphia cases, it is often possible to get a hearing scheduled within a week or two. If the motion to lift the detainer is successful and the judge agrees to lift the order, then the defendant could be released on the day of the hearing. In the suburban counties, it could take one or two months to schedule a detainer hearing. Each judge is different, and the judges have a significant amount of discretion in terms of if and when they schedule probation cases. However, in many cases, we are able to convince the judge to schedule a hearing quickly and hear the case on the merits.
4) Will the judge lift the detainer?
There is never any guarantee as to whether a judge will lift a detainer. Typically, when either the probation case or new case is for charges which are not particularly serious or when there is some compelling mitigation evidence in the defendant’s background, the odds of winning a motion are greater. If the defendant has a lot of community support and friends and family who will attend the hearing, then the odds of getting a detainer lifted substantially increase. Likewise, if we can show that the defendant was working, attending some kind of treatment, or has health issues, those are all factors that could lead to a successful motion. The likelihood of success depends on the defendant’s background, the nature of the new and old charges, and also on the judge who is supervising the defendant’s probation. We can never guarantee that a detainer will be lifted, but in many cases, it is worth filing the motion and asking the judge for a hearing. In many cases, the probation judge will release the defendant pending trial if the defendant retains counsel and files a motion.
5) What if the judge won’t lift my detainer?
If the judge will not lift the detainer, then the defendant will remain in custody until the new charges are resolved or the defendant serves the maximum possible sentence on the probation case. In some instances, if there is a significant change in circumstances during the course of the case, then it may be possible to ask the back judge to reconsider. For example, if felony charges are later dismissed and the defendant is left facing only misdemeanor charges, it may be worth asking the probation judge to reconsider an initial ruling denying a motion to lift a detainer. Although we cannot guarantee that a motion will be successful, we can guarantee that if you do not file one, you will remain in custody until the new case is over.
6) Should I pay my bail if I have a detainer?
If you have a detainer, you should not pay your bail. If you pay your bail, you will not receive any time credit for the time spent in custody on the new case. You will receive time credit only for the probation case, meaning that if you are ultimately convicted of the new case and sentenced to a period of incarceration, you will not receive any credit for the time which you spent in custody prior to sentencing. If you pay your bail and you have a detainer or warrant from a different jurisdiction, you would typically be transferred to the other jurisdiction, which could make it more difficult to resolve the new case as there are often transportation issues.
7) What are the odds that the judge will lift the detainer?
It is never possible to guarantee that any particular detainer will be lifted, and it is often difficult to make a prediction as to the exact chances of success. However, our attorneys have represented numerous clients in probation matters and successfully had detainers lifted in a number of cases. Examples of successful probation case outcomes include:
Commonwealth v. A.W. - Motion for Reconsideration of Custdoail VOP Sentence Granted; Client Immediately Paroled to Treatment
The judge found A.W. in technical violation of probation for theft and drug possession while a different attorney represented A.W.. The judge sentenced A.W. to 11.5 - 23 months in the county jail. The client retained Goldstein Mehta LLC within ten days of the sentence, and our attorneys immediately filed a motion to reconsider the VOP sentence within ten days as required by the rules. The back judge quickly scheduled a hearing on the Motion to Reconsider, and prior to the hearing, we were able to work with the client's family to locate a treatment facility which A.W. could attend if released. Once our attorneys presented the judge with alternative treatment options, the judge reconsidered the sentence and granted immediate parole to treatment. We were able to help A.W. avoid a lengthy jail sentence in the county jail.
Commonwealth v. Z.B. – Detainer Lifted and Client Sentenced to Time Served on Section 17 Detainer
The client previously pleaded no contest to misdemeanor drug charges as part of a Section 17 diversionary program in Montgomery County. After getting arrested again in a different jurisdiction, the Montgomery County probation officer took Z.B. into custody and lodged a probation detainer. The client retained Goldstein Mehta LLC, and our defense attorneys immediately filed a Motion to Lift the Detainer, arguing that Section 17 probation does not give the judge the authority to lodge a probation detainer. Instead, the judge must schedule a hearing and either continue the probation or impose a judgment of sentence.
In this case, the judge had already scheduled a hearing that was still months away. After receiving the motion and recognizing that the law was unclear as to whether Section 17 probation provides the authority to lodge a detainer, the judge quickly moved the probation violation hearing up by two months. The client then stipulated to the probation violation in exchange for a time served sentence and was released shortly thereafter. By filing a creative motion on the client’s behalf, our defense lawyers were able to save the client months in the county prison.
Commonwealth v. J.B. – Probation Detainer Lifted, Full Acquittal Obtained in Domestic Assault Case
Police charged J.B. with Simple Assault, Terroristic Threats, Recklessly Endangering Another Person, and other related charges in the Philadelphia Municipal Court for allegedly assaulting his girlfriend. J.B. was on probation for similar charges, so the probation officer took him into custody and lodged a probation detainer. If J.B. had done nothing, he would have had to stay in jail for months until the new case was resolved. Fortunately, J.B. retained Zak T. Goldstein, Esq., and our defense lawyers promptly filed a Motion to Lift the Probation Detainer with the client’s back judge. By putting together a thorough mitigation packet which showed J.B.'s exemplary work record, successful compliance with probation other than the new charges, and extensive family and community ties, we were able to have J.B. released so that he could fight the case from the street.
Attorney Goldstein then obtained a full acquittal for J.B. at trial. By cross-examining the complainant on the inconsistencies between her testimony at trial and the statement she had given to police and showing that she had a motive to lie, our attorneys were able to convince the trial judge that the complainant should not be believed. This was particularly true in light of the complainant’s lack of visible injuries and the fantastical nature of her allegations. Accordingly, our criminal defense attorneys successfully had the client’s probation detainer lifted and then obtained a full acquittal at trial.
Commonwealth v. M.M. - M.M. was arrested on a potential technical probation violation. Attorney Goldstein filed a motion to lift the detainer and had a hearing scheduled within a week. At the hearing, our defense lawyers convinced M.M.'s back judge to find that M.M. had not violated the terms of his supervision. The client was immediately released the same day.
Our Philadelphia Detainer Lawyers Can Help
If you or are loved one are dealing with the consequences of a probation detainer, call 267-225-2545 today for a free 15-minute criminal defense strategy session with one of our Philadelphia criminal defense lawyers. We have successfully defended thousands of cases and successfully moved to have detainers lifted on numerous occasions. Do not just assume that you or your loved one must remain in jail until the new case is resolved. We can help you evaluate the merits and likelihood of success in filing a motion, and we may be able to help you or your loved one get out of jail.