29-2266.03. Probation officer; imposition of custodial sanction; report to sentencing court; hearing; notice; rights of probationer; county attorney; powers; commitment order.

(1) Whenever a probation officer seeks to impose a custodial sanction and the probationer acknowledges the violation, agrees to the custodial sanction, and waives the hearing, the probation officer shall submit a written report to the sentencing court outlining the nature of the violation and the sanction to be imposed. Upon receiving the probation officer’s report, the court shall issue a commitment order accordingly.

(2) Whenever a probation officer seeks to impose a custodial sanction and the probationer declines to acknowledge the violation, the probation officer shall submit a written report to the sentencing court outlining the nature of the violation and the sanction to be imposed. The probationer is entitled to a prompt consideration of such charge by the sentencing court. Except as provided in subsection (1) of this section, the court shall not impose a custodial sanction on a probationer unless the violation of probation is established at a hearing by a preponderance of the evidence.

(3) Prior to the custodial sanction hearing, the probation officer shall provide the probationer written notice of the grounds on which the request to impose a custodial sanction is based. The probationer has the right to hear and controvert the evidence against him or her, to offer evidence in his or her defense, and to be represented by counsel. The right to hear and controvert the evidence does not include a right to confront witnesses. The right to offer evidence includes, but is not limited to, the right to submit affidavits and reports for consideration by the court and the right to testify and call witnesses.

(4) The county attorney of the county where probation was imposed may appear at and participate in a custodial sanction hearing to offer evidence, call witnesses, and cross-examine witnesses. The court shall receive the affidavit and report of the probation officer as evidence and may receive additional affidavits and reports related to the requested sanction or sanctions.

(5) After a custodial sanction hearing, if the court determines that a custodial sanction should be imposed, the court shall issue a commitment order accordingly. The decision to impose a custodial sanction shall be based upon the probationer's risk level, the severity of the violation, and the probationer's response to the violation, and shall be made in accordance with the procedure in this section, relevant court rules, and the matrix of rewards and graduated sanctions developed by the administrator. A custodial sanction may be combined with one or more administrative sanctions.

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