Daily Archives: November 7, 2018
In nearly all misdemeanor DUI’s that result in a conviction, probation is a term of the driver’s sentence. There is, however, much confusion about what exactly misdemeanor DUI probation entails. But, before I go into what probation entails, let’s discuss what probation even is and where it comes from.
In 1841, a Boston cobbler named John Augustus persuaded a Boston Police Court to place a “drunkard” in his care to become rehabilitated prior to sentencing. 37 years later, in 1878, the mayor of Boston hired a former police officer, “Captain Savage,” to become what many recognize as the first probation officer. By this time, many federal judges were regularly suspending the sentences of people convicted of crimes. In 1916, the United States Supreme Court decided what is known as the “Killets Decision,” where it held that a federal judge by the name of Killets could not suspend a criminal sentence indefinitely. The Killets Decision led to the passing of the National Probation Act of 1925, which allowed courts to suspend the sentences of people convicted of crimes and place them on probation.
Simply put, probation is court supervision over an offender for a specified period of time rather than placing the offender in jail or prison.
In the context of a California DUI, probation is much more than merely supervision.
For a misdemeanor DUI in California, a person can be placed on summary (informal) probation for a period of three to five years depending on the circumstances surrounding the DUI. Probation can be less if a driver is able to get the DUI reduced to, for example, a “wet reckless.” Summary probation, also known as informal probation, is given in all misdemeanor DUI cases and doesn’t require supervision by a probation officer. For felony convictions, on the other hand, formal probation requires supervision and meetings with a county probation officer.
In addition to being placed on probation, the court will sentence a DUI offender to abide by certain conditions during the time of probation, some passive and some active.
The passive conditions of probation can and will include not picking up any new cases (this does not include infractions such as traffic tickets), not driving without a valid license, and not driving with any measurable amount of alcohol in their system. Normally, it is not illegal to drive with some alcohol in a person’s system as long as they’re not above a blood alcohol content of 0.08 percent or higher, or if they are “under the influence.” However, when a person is on probation, they cannot have any alcohol in their system, not even a 0.01 percent blood alcohol content.
Additionally, normally a person does not have to submit to field sobriety tests or a pre-arrest breathalyzer when stopped on suspicion of a DUI. However, if a driver is already on probation for a California DUI, they must submit to field sobriety tests and a pre-arrest breathalyzer if they are stopped on suspicion of a subsequent DUI.
The active conditions of probation include the driver doing whatever the court orders them to do during the probationary period. This can include paying their fines and fees, completing a court-approved DUI course, completing a MADD Victim Impact Panel, completing a Hospital and Morgue program, completing AA meetings, completing community service, and completing community labor (which in most Southern California courts means picking up trash on the side of the freeway with CalTrans). Although the purpose of probation is to avoid jail, sometimes going to jail for a shorter period of time is a condition of probation.
If the probationary period expires and the person has completed all of their passive and active conditions of probation, probation will terminate, the case is completed, and the driver should discuss a 1203.4 dismissal (commonly referred to as an “expungement”) with their attorney.
On the other hand, if a person violates any condition of probation, the court can revoke probation and sentence the driver up to the maximum of what the original DUI allowed. For a first time DUI, this is a $1,000 fine and six months in county jail. For a second or third time DUI, this is a $1,000 fine and a year in county jail.
Although not pleasant, probation is, most of the time, a preferred alternative to potentially spending months in jail for a California DUI.