A recent comment from a TrafficCourtPros.com user highlights a common question. “What happens if a driver is cited for an infraction version of a DUI probation violation?”
What? Is there such a thing? Cant you go to jail for violating misdemeanor probation? In California some probation violations can be simple infractions, and some can land you in jail, or even both.
Here is the imaginary situation as presented by D. User:
“I was convicted of DUI in 2010 and given 5 years of unsupervised probation.”
“Got pulled over for a headlight that was out. Cop made me due field sobriety test and then breathlyzer, I blew a .05 two times. The cop told me that i was under zero tolerance and was not supposed to be driving with any measurable amount of alcohol in my system.”
|“He gave me a citation and circled “infraction” and wrote California Vehicle Code section 23154 dui probation violation on the ticket. He took my license and gave me a 30 temporary drivers license paper. I was not arrested and was allowed to go home.|
“My question is, what penalties am I facing in the criminal court?”
“I know my license will get suspended for one year by the DMV, but I am more concerned about going to jail. I contacted the lawyer that took my case from my 2010 DUI, and he said that since the cop gave me an “infraction” it will be handled by the traffic court and all i will have to pay is a fine. He said that technically i can go to jail for a Dui probation violation, but in practice, when it is handled as an infraction, I can just pay the fine at the ticket window and be done with it, as the DA will never hear about it.”
D. User, if a client were to hire me and ask what the possible penalties are, I might state that technically, a misdemeanor probation violation can expose you to a maximum of 1 year in the county jail and a fine of $2,000. I would say that the judge can revoke your probation and re-sentence you on the original DUI conviction – and that there is probably a “suspended” (pending) jail sentence already hanging over your head.
in California, a typical driving under the influence misdemeanor probation case will have terms of probation to follow, two of which will state:
1) “Defendant shall not drive a motor vehicle with any measurable amount of alcohol in his/her blood;” and
2) “Defendant shall not drive a motor vehicle unless properly licensed and insured.”
Anyone convicted of a violation of one of these terms of probation can be arrested, sentenced to jail, and can have their probation completely revoked . . . if the criminal court or an interested prosecutor finds out about it, and wants to pursue it.
Sometimes prosecutors, and the officers who make recommendations to prosecutors, decide not to turn Veh Code 23154 violations into probation violation hearings for efficiency purposes. They know that the DMV is going to suspend your drivers license and punish you anyway. And the most cynical of those out there may think that once a defendant’s drivers license is suspended for a year, that person will show up in the criminal court soon or later for driving with a suspended drivers license. They may expect to see you then.
Here, it appears D. User was lucky, and properly had a valid drivers license at the time. Had his drivers license been suspended still from the DUI conviction by the Department of Motor Vehicles, he would have faced a more serious charge of a violation of Vehicle Code section 14601.2. That version of driving on a suspended drivers license comes with a free minimum jail term, 2 negligent drivers points on your DMV driver history report and a misdemeanor conviction. (More info on Veh Code 14601.2 charges)
Assuming D. User had a valid drivers license at the time of his detention, the officer had a few options for punishment. A new DUI arrest was one possibility.
Even a person with a low Blood Alcohol Content like 0.05% can be charged with a new driving under the influence crime if there is evidence of impairment such as running a red light. (See Vehicle Code section 23152(a).) But here, it appears there was no evidence of bad driving.
People who are not on probation and not impaired may drive legally with a BAC of 0.07% or less in CA. But people on DUI probation cannot drive legally with that BAC. If they do and are caught, they generally have 2 problems: 1) a violations of Veh Code 23154; and 2) a possible probation violation and revocation of probation.
And maybe loss of a car.
For those unlucky persons, Vehicle Code section 23154 allows law enforcement officers to write a citation (promise to appear) to a driver who is caught driving while on probation with a small amount of detectable alcohol on their breath (and therefore in their blood). Because the statute itself does not mention a violation is a “misdemeanor” crime, a violation of 23154 is an infraction, and therefore not a crime by default.
However, even though the citation for a 23154 violation itself presents only an infraction charge, it can be used by a prosecutor as a basis to separately charge a probation violation on the original criminal DUI case.
As an infraction, the 23154 violation is usually handled by a traffic division of the local county’s Superior Court. The traffic division does not administer probation cases. Infractions are not crimes in CA. Criminal cases with or without probation are handled by a completely separate criminal division of the local county’s Superior Court.
Sometimes the criminal divisions and the traffic divisions do not communicate well, or not at all. This fact means that the violations might just remain an infraction, and will not cause any probation problems if the case stays and is resolved in the traffic division.
D. User’s Query Plunges On:
“My attorney also suggested that sometimes officers dont show up to traffic hearings when challenged by plaintiff, so he said i can contest it, and hope that officer will not show up to court and i can maybe win the case, which will also supersede DMV license suspension. The thing im worried about is that if I challenge the citation will that alert the courts and then have the case handled by the criminal court instead of the traffic court? or does it have to be handled by traffic court since that is where ticket was written to.
Also, how will the judge decide or even know how to decide on a case if handled in the traffic court? I would be glad to just pay the fine and move on, but Im not sure the advice the lawyer gave me is correct or a good idea?”
Even with traffic infractions, a defendant has the right to a trial. They are presumed innocent, and they have the right to cross examine witnesses against him/her in the trial. And it is true that sometimes officers do not show up for trials on traffic tickets. Sometimes those tickets get dismissed, sometimes they get a continued trial date.
If you are innocent, demand a trial. It is your right. Dont plead guilty to something you did not do.
But what if D. Users are guilty?
D. User’s fears of keeping the case alive too long are a sign of a wise soul. It is possible, even if unlikely, that the little infraction VC23154 may later produce a probation violation as a misdemeanor or a full revocation of probation if allowed to fester.
If D. User were to appear on the infraction, enter a plea of “Not Guilty”, and get a trial – he might lose that trial. The officer may show up and testify that he measured Users’ blood alcohol content with a PAS device and it showed a measurable amount of alcohol in the blood. He will then testify that he confirmed the fact that you were previously convicted of a DUI offense, and that you were on probation at the time. Maybe he would say he really wanted to arrest your for a second DUI, but did not have perfect evidence.
That last statement would not be admissible, and D. User would be well advised to object to it at the trial. If he has one. Nonetheless, based upon the admissible evidence offered in court, the judge would decide the case.
Oh, sure, I guess the judge would hear your evidence. But what would it be? Do you have any defense at all? Maybe you could hire and bring in a forensic toxicologist to testify on your behalf and give an expert opinion that the PAS machine was not operating properly due to temperature differentials or some crap like that.
But the truth is, D. User’s chances at trial might be real slim. And the dangers of keeping the case alive are high.
What if D. User wins the trial? What if he is found not guilty? Will that save his drivers license from the automatic suspension he mentions? No.
The Department of Motor Vehicles handles DUI suspensions and DUI probation suspensions, and negligent driver points suspensions independently of the court’s action on the case. If D. User wants to somehow challenge the suspension of his drivers license following a Veh Code 23154 violation, he must demand a hearing with the DMV to challenge the administrative drivers license suspension.
If I were on DUI probation and received a Veh Code 23154 ticket as an infraction, I might just pay it off and plead guilty by mail AS FAST AS POSSIBLE, then thank my luck stars I avoided more jail time.
What should you do? I have no idea. Your facts are different. Every court is different. Make your own choices.
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