People v. O’Day.

2022 COA 24. No. 19CA2314. Fifth Amendment—Probation Revocation Hearing.

February 24, 2022

Defendant pleaded guilty to (1) vehicular eluding in exchange for a two-year deferred judgment and sentence and (2) criminal mischief in exchange for a supervised probation sentence. About nine months later, he was arrested for obstructing a peace officer, unlawful possession of a controlled substance, unlawful distribution of a controlled substance, resisting arrest, unlawfully carrying a concealed firearm, and possession of weapon by a previous offender. The court revoked defendant’s deferred judgment and sentence and resentenced him to 18 months in community corrections to run consecutively with the sentence in the second case.

On appeal, defendant argued that the district court violated his right against self-incrimination by compelling him to answer whether he had been charged with new offenses while on probation and had pleaded guilty to those charges. During a revocation hearing, a defendant-probationer is not entitled to the same constitutional guarantees afforded defendants in criminal prosecutions facing substantive criminal charges. A defendant’s privilege against self-incrimination is not implicated by questions asked to determine whether he or she violated probation conditions, unless the answers could be used against the defendant in a retrial of the underlying case or in a separate criminal proceeding. Here, defendant’s answers revealed conduct for which he had already been prosecuted and the resulting consequences; the answers weren’t relevant to an issue of guilt in this case; and there was no other pending case against defendant in which his answers could be used against him. Accordingly, the district court did not violate defendant’s self-incrimination privilege.

The judgment was affirmed.