A defendant who is placed on probation for a criminal offense generally cannot leave the state without permission of the court. The same rule applies while on bond. On request, some courts will grant a defendant permission to travel out of state for a job, or in cases of family or medical emergency.
The law allows one exception where a defendant can move out of state. This is called Interstate Compact Transfer pursuant to the Interstate Commission for Adult Offender Supervision (ICAOS). When a transfer occurs, the person’s probation does not terminate, but continues in the next state.
A transfer of probation must occur where any offender wants to remain in another state for more than 45 consecutive days in any 12-month period. For stays shorter than this, the defendant can request a travel pass. The court will generally not allow a transfer just for the purpose of attending school our treatment such as an in-patient facility in another state.
Probationers in all of the following cases must go through the transfer process:
- Any case with more than 90 days of supervision (eg, probation) remaining.
- Felony offenders.
- Misdemeanor offenders with a sentence of at least one year of supervision (eg, probation) and the offense had either 1) physical violence or threats thereof, or psychological harm; or 2) possession of a firearm; or 3) a second or subsequent offense of DUI; or 4) a sex offense that requires registration.
- Some deferred prosecutions.
The probationer who wants to transfer out of state must file a fee and submit an application. The fee is non-refundable. The fee is payable to the Clerk of the Circuit Court. The application will be submitted to the court for approval, but then the state to which the probationer wants to transfer must accept him.
The criteria for transfer are the following:
- The defendant must be a resident of the receiving state for at least one year prior to the date of the offense; OR
- The defendant must have family in the receiving state (such as a parent, grandparent, aunt, uncle, adult child, adult sibling, legal guardian, or step parent) who has resided in the receiving state for at least 180 days and is willing to assist in supervising the defendant and the offender can gain employment or has a means of support; AND
- The defendant must be in compliance with all the rules of probation from his state at the time of the application for transfer.
While waiting for the receiving state to accept, the offender remains on probation and cannot leave the state. A sex offender cannot leave the state at all unless it is pursuant to a transfer. Thus, a sex offender cannot get a travel pass for any purpose, and must wait the approval of the application.
If the probationer already lived in a different state on the date of sentencing, he may be eligible for immediate transfer. But he must stay in the sentencing state until the application for transfer is approved.
The receiving state does not collect fines or court costs from the defendant. That role is still performed by the original state that sentenced the defendant to probation.
Anyone thinking of relocating should talk to the probation officer first, because the consequences of leaving the state, even with a legitimate purpose, can be re-sentencing.