Administrative Rule 20.25.801

20.25.801 ON SITE HEARING AND REVOCATION OF PAROLE

  1. If an officer of the department has reason to believe a parolee has violated any of the conditions of the parolee's release, the department must conduct an on-site hearing unless the parolee waives the right to an on-site hearing or pursuant to (3), no on-site hearing is necessary.
  2. In order to waive the right to an on-site hearing the parolee must sign a waiver that clearly specifies the rights the parolee is relinquishing and admit to at least one of the violations as outlined in the report of violation.
  3. No on-site hearing is necessary if the parolee is convicted of a felony offense during the period of supervision, or if the parolee is arrested in a state in which the parolee had no permission to travel or reside.  If no on-site hearing is necessary the hearing panel may utilize the court judgment and conviction or out-of-state arrest documents in lieu of the on-site hearing summary.
  4. For an on-site hearing the parole officer shall serve the parolee with a report of violation and notice of on-site hearing.
  5. The on-site hearing must be held at or reasonably near the site of the alleged violation within a reasonable time after the service of the report of violation to the parolee.  If the parolee is arrested out-of-state, the hearing will be conducted by the state tasked with supervision of the parolee or upon return to Montana custody.
  6. The parolee may have witnesses attend the on-site hearing, but only if the witnesses have relevant testimony to present concerning whether the parolee did or did not violate the conditions of release on parole, and only if the witnesses can qualify to enter the correctional facility if the hearing is held in a secure facility.
  7. A hearing officer of the department will preside over the on-site hearing.  If the hearing officer finds there is probable cause to hold the parolee for the final decision of the board, the parole officer will notify the board and submit a summary of the hearing to the board.
  8. The parolee may be held in a state prison pending an on-site hearing or after a hearing officer has determined there is probable cause to hold the parolee for a final decision of the board.
  9. The board staff will deliver a copy of the board's written decision to the offender within 21 days of the decision.  The written decision will include reasons for the decision and disposition, and a summary of the evidence upon which the board relied.
  10. If a hearing panel determines that the offender has violated the provisions of release, the hearing panel, at its sole discretion, will determine the amount of time, if any, that will be counted as time served while the parolee was in violation of the provisions of release.
  11. A parole violation warrant will remain active until the parolee is in Montana custody and may not be quashed without the approval of a board hearing panel.  If the parolee's sentence expiration is reached, a hearing panel will review the case to determine if keeping the warrant active is in the best interests of justice.  If the panel decides to keep the warrant active after the parole discharge date, not including dead time, a panel will review the parolee's status annually.
  12. Unless the parolee waives the revocation hearing, the board will schedule a revocation hearing within 90 days of receipt of the on-site hearing summary or of receipt of notice of conviction or return to Montana custody.  If the parolee waives the revocation hearing the parolee must sign a waiver that clearly specifies the rights the parolee is relinquishing.  Once the hearing is scheduled, the parolee may request a continuance and board staff may grant the continuance if the parolee can show good and substantial cause for the continuance.
  13. At the revocation hearing the parolee may be represented by counsel at the parolee's expense, and may present witness testimony if the testimony relates to the violations.  An indigent parolee may request appointed counsel if difficult or complex issues are present and if the parolee is unable to articulate the issues.  A decision on the request for appointed counsel will be rendered by a board hearing panel after due consideration of the request.
  14. A parolee who contests parole revocation or the parolee's counsel shall, at least 20 days before the revocation hearing, present to the board staff:
    1. any requests for information from the parolee's file that the parolee needs for the hearing;
    2. a list of witnesses and exhibits the parolee intends to present at the revocation hearing;
    3. a list of information the parolee will present at the hearing; and
    4. any requests for subpoenas the parolee wants the board to issue.  The board will only issue subpoenas for extraordinary reasons and in cases where the board considers a person's testimony is crucial to a determination of the issue of revocation.
  15. The presiding hearing panel member will conduct the revocation hearing and will make an audio and video record of the hearing.  The decision of the board in a revocation hearing is by a preponderance of the evidence.  The board may consider:
    1. reports of the supervising officer;
    2. the report of the on-site hearing, if one was conducted; and
    3. the information and evidence presented at the hearing.
  16. If the board decides the parolee has violated the parole, the hearing panel may, considering the nature of the violations and the criteria for release grant decision, take any of the following actions:
    1. continue the parolee on parole with release to the community;
    2. continue the parolee on parole, but authorize the parolee's detention in custody until the parolee satisfies conditions imposed by the board;
    3. revoke the parole and set no re-parole date;
    4. revoke the parole, but order the offender's re-parole on a date certain;
    5. revoke the parole and set a date within one year when a board hearing panel will conduct an administrative review of the offender's case; or
    6. make any other appropriate order.  (History: 46-23-218, MCA; IMP, 46-23-215, MCA; Eff. 12/31/72; AMD, 1978 MAR p. 1552, Eff. 12/1/78; AMD, 1993 MAR p. 297, Eff. 2/26/93; AMD, 1994 MAR p. 168, Eff. 1/28/94; AMD, 1999 MAR p. 290, Eff. 2/12/99; AMD, 2010 MAR p. 2816, Eff. 12/10/10; AMD, 2012 MAR p. 1619, Eff. 8/10/12; AMD, 2016 MAR p. 139, Eff. 1/23/16)