First Offense Misdemeanor Driving Under the Influence convictions in California generally get similar sentences no matter what county.
|Although a conviction of the DUI statute(s): Vehicle Code section 23152(a) and Veh Code 23152(b) has a maximum sentence of 1 year in county jail, most first time DUI offenders are sentenced to little or no jail time and a term of misdemeanor probation. |
In most cases, the terms of probation are standardized. Here is what you need to know about Misdemeanor DUI probation in order to avoid common violations caused by confusion or correctable problems.
Probation is a Substitute for Jail Time:
When a court offers a Defendant probation, what the court is really saying is: Accept these terms of probation or accept jail time. Of course, most people prefer probation over jail, but you do have the option to say “No, I want Jail Time”.
Generally, when stating a sentence on a first offense DUI, the court will state there is a jail term “Suspended” pending the completion of probation. In most courts for a Misdemeanor first offense DUI, this Suspended Term is 30 or 60 days. So long as probation is completed without problems, the Suspended Jail Sentence is not carried out.
Misdemeanor Probation is Usually “Informal”:
In most California Superior Courts, misdemeanor probation is also called “Court” or “informal” probation because there is almost no active court monitoring of the defendant. Instead of active monitoring, (which does exist in Felony probation), the court issues a set of court orders (probation terms) that must be complied with. Usually, the term of probation is 3 or 5 years.
Most Common DUI Probation Terms:
There are standard terms of probation that are issued in nearly all CA 1st offense under the influence cases:
1) Pay a Fine (Fine amount varies from court to court);
2) Attend and complete First Offender DUI / Substance Abuse Program (AB548 program in many cases : More Info on DUI Classes);
3) Complete Sheriff’s work program or community service as ordered (some courts will require a few days of jail here);
4) Do Not Drive At all (unless properly licensed and insured);
5) Install an alcohol detection Ignition Interlock Device in any car you own or drive;
and possibly other terms tailored to the situation.
Of course, there are deadlines for most of the terms, such as the fine payment and signing up for classes.
Terms of Probation Are Stated Orally By The Judge, and Given To Defendant in Writing When the Conviction Happens:
How do you know what the terms of your probation are? Well, the court gives them to you when you are convicted. Conviction only happen when a defendant pleads guilty, or at the end of a trial that the defendant loses. If you do not have a trial, you get the terms of probation at the hearing where you plead guilty.
About 90% of DUI cases end in a guilty plea. Very few end with a jury trial.
Before taking a guilty plea to a misdemeanor, a judge must first get the defendant to waive their right to a jury trial on the record. Normally, this happens with the client in court, who pleads guilty and give up the right to a jury trial in live court orally. In most courts, the judge will also require a written “Waiver Form” to document the guilty plea.
Once the guilty plea is taken, the court states the terms of probation, and the court clerk writes them up on a document known as a “Minute Order”. Every defendant who is in court and pleads guilty gets a Minute Order that will list any probation terms.
Defendants with private criminal defense attorneys can send the Attorney to court to plead guilty for them – thus avoiding a court appearance. When this happens, the defendant does not hear the court state the terms of probation, but the attorney is required to provide the terms of probation to the defendant in writing.
If you have lost your terms of probation, you can get them by contacting the probation department at the court where you were convicted. You can also go to the court clerks office and view/copy the court’s file on your case.
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If You Miss a Deadline, Schedule a Court Date:
When any of the terms of probation are violated, the court issues an arrest warrant. Usually this happens when a defendant does not complete a class on time, fails to pay the fine on time, or fails to show up for jail time or the Sheriff’s work program.
Usually when a violation is alleged by the court, a warrant issues and the court revokes the probation completely. When there is a revocation of probation, the court can re sentence the defendant on the original charge or impose the suspended jail sentence.
Defendants are entitled to a hearing before they can be convicted of a probation violation, but the burden of proof is much lower for the government than the standard “beyond all reasonable doubt”. Probation violations are easy to prove for a prosecutor, especially when there is a paper trial like in a DUI case.
Once probation is violated, revoked, or a warrant issued, the defendant cannot just continue on probation as if nothing is wrong. If a defendant misses a fine payment, future payments will not get a warrant recalled or probation reinstated, the judge must first give the defendant permission to pay the fine (rather than just do the sentence in jail instead of probation). The same is true of a defendant who fails to complete the AB 548 classes on time. The defendant cannot just re enroll in the classes and expect everything to be fine.
The proper way to solve a probation violation problem is to get the case back in court, and usually, ask the judge to recall the warrant without remanding the defendant to jail, do not require posting of bail, and give the defendant a second chance and reinstate probation.
How To Prevent DUI Probation Problems:
1) Make sure you meet all fine payments as ordered by the court. Do not wait for a bill. Keep records of your payment and prof of mailing if you do not pay in person (recommended);
2) Sign up for the classes on time, and do not go after drinking (drinking is a common reason for dismissal).
3) If you are not sure if your case is OK – call the criminal division court clerk at the court where your case was heard and ask for the status.
4) Do not drive while your license is suspended;
5) Go to the jail or sheriff’s work program on time, even though it hurts! (Having to work or take care of old family never works as a defense to a probation violation)
The Worst Way to Deal With a Probation Violation?
If a probation violation warrant results in an arrest, the chances of a good outcome are low. Voluntary action is the secret to a good result.
When there is a probation violation on a DUI case, even something as simple as a missed class, the court will issue a warrant and send it to the sheriff’s office for service on the defendant (ride to jail). Most Sheriff’s offices will make at least one attempt to arrest the defendant at home or work, and then will follow up randomly. Most people who are caught on DUI probation violation warrants are caught driving, or at the airport.
Law Enforcement will do DUI pre dawn warrant sweeps during election years.
An Attorney Is Worth The Money If You Have A DUI Probation Violation Problem:
DUI probation violations can be solved quickly with a private attorney. If the problem is recent, an attorney can usually in most California Criminal courts, get the case added on to the court’s schedule within 4 days – sometimes the next day and make a request to reinstate probation without the client being in court.
For older warrant problems, and in difficult courts, the defendant does have to appear in court even if they have hired a defenbse attorney. Some judges want to ask the defendant questions – like: “Why should I give you a second chance”. The attorney can get the appearance scheduled, and help you get in and out fast, but can also demand and conduct a hearing to defend the client if the judge refuses to cooperate with a reinstatement of probation.
And when I do the work for a client with a DUI warrant, I make sure I can give a well prepared and persuasive presentation to the court, and effective defense at a probation violation hearing if needed.
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