We get a lot of questions from people who were unable to complete some term of misdemeanor probation by the court deadline. It’s a common problem. What do I do?
|What if I dont have the money for the DUI classes? What if I cannot pay the fine because my house just burnt down? |
What if I did not go to the Sheriff’s Work Program because I had to work suddenly all alone in the ER trauma center?
Here are some (more free) answers. We’ll deal with the subject by using a Sacramento California First Offense DUI Probation as an example because, well. . . , because we want to use those key words today. But the general principles may apply to different types of probation in different places and will at least help you understand something.
What is Probation?
Probation is an optional substitute for straight jail time. It works like this: In Sacramento a first offense DUI conviction can produce a straight jail time sentence of up to one year. But Sacramento County cannot put all first time DUI offenders in jail, so they offer some defendants “Probation” instead of Straight Jail time.
If the Defendant Accepts the “terms” of the offered probation, no jail is required. But if the Defendant screw it up, the court can revoke probation and re sentence the defendant to straight jail.
Usually, the terms of probation for a first offense DUI in Sacramento County Superior Court will include:
1. Pay a Fine (by a deadline);
2. Do approx 8 days of jail time, minus credit for time already served – then the balance of days may be served by working with the Sheriff’s Work program if they accept you (by a deadline);
3. Do not drive without valid license and current insurance;
4. Do not drive with any measurable amount of alcohol in your blood; and
5. Complete a course of substance abuse classes (by a deadline – this term may vary);
When a defendant is offered probation in court, the judge should state these terms verbally, and ask the defendant if the accept the terms. If the defendant accepts, no straight jail time is imposed. Then the court clerk and/or judge should give you the terms in writing and have you sign them.
The defendant has the right to refuse probation, and instead elect straight jail time without probation terms.
The terms of probation cost money to complete. The Defendant must pay for the Sheriff’s work program, must pay the fine, and must pay for the classes.
The terms of probation require time. You may have to miss work. You may have to miss school. The court does not care how much important crap you miss, because the other option is straight jail time.
A defendant has a right to decline probation. Probation is a privilege for people with money to pay what it costs. Probation is not a right for people with zero money. A defendant does have the right to decline probation if they know in advance they cannot comply.
What To Do If You Know You Cannot Comply With The Terms of Probation on Time.
Prior to Accepting the Terms of Probation:
What if the Judge tells you the fine is $3500 and you have 10 days to pay? no way you can do it. What then?
If you know that you cannot comply with a term of probation at the time the judge asks you if you accept the terms, the correct thing to is to tell the judge you are not able to meet those terms and ask for an alternative. Do not accept the terms of probation if you know you cannot comply. Negotiate. Ask for what you want.
After Accepting the Terms of Probation:
Ok – say you thought you could comply. Everything was fine, then you got laid off and cannot pay the fine by the deadline? What if you suddenly realized you cannot show up for the sheriff’s work program because you broke your leg off?
The correct thing to do is to go into court in advance of the deadline, and ask the judge to a change in the terms of probation to give you an extension on the deadline, or more time to pay, etc.
To get the case back on the court’s calendar before there is a problem, you need to get there before the deadline. Do not let the deadline pass first.
Go in person to the court clerks office with your case paperwork and ask for a walk in court appearance, or a date for a request to amend or change probation.
Some courts will add you on ot the morning’s calendar right away. Some courts require that you fill out a calendar request form and schedule a date for a later time. Some courts will tell you “come back tomorrow”.
Once in court, tell the judge the problem, ask for a “modification of probation terms”. It is a very common request, seen in criminal courts hundreds, no thousands of times a day.
Tell the judge what you want. Ask for it. Expect a good result. Tell the judge you are trying to do everything right.
If you do this work voluntarily, prior to the deadline, you can expect a good result, and very little stress.
The best way to get this work done correctly is to hire a private defense attorney to do the work for you. Normally, an attorney working a courthouse already can do a request to amend probation terms on a misdemeanor case within a day or so. It really requires very little work if it is done prior to the deadline. And nearly all judges will cooperate with a request made early.
Do not try to get probation terms changed by phone, or by writing a letter to the judge. It will not work, you must go in person or hire an attorney to do the work for you.
Most public defenders will not do this work for a PD Client, mainly because they get released from a case after a conviction. But some Public Defenders are super cool and friendly, and if you had one of these for the original case, call her up, explain the problem, and ask for help. Chances are the she will probably be in the same courtroom every morning, and can do it for you quickly. But keep in mind they are not getting paid to help you, and you are asking for charity.
OK – recap – if you cannot pay a probation fine in time, go early and ask for more time in person. If you cannot complete court ordered classes on time or the sheriff’s work program on time – go in and ask for more time in advance.
What to Do If You Miss The Deadline and Have Violated Probation?
If you miss a deadline to pay a fine on a DUI case, or get booted from the Sheriff’s Work program because you had a few beers for breakfast, it is a violation of probation.
Typically, when the court becomes aware of a violation, probation gets revoked completely, and the case re opened. It takes a little while, some times days or a couple of weeks, but they revoke probation.
Because probation gets revoked, you cannot just pay the fine late, or re sign up for the classes on your own. You dont need to pay a probation fine any more if there is no probation. Unless probation gets reinstated, there is no point in trying to complete a term after revocation.
After revocation, comes a new sentencing hearing.
That is the part many people have a hard time understanding. For you math people, I will convert it for you: Probation Revocation = (Terms of Probation – Terms of Probation) + new sentence.
Probation revocation also produces a warrant for the arrest of the Defendant. And that basically is an order from the court to law enforcement that says: “Find this person and bring them to court for sentencing”.
When there is an outstanding probation revocation warrant, the defendant needs to get into court ASAP. Going to court voluntarily is good, being brought in by the Sheriff is bad.
Probation can be reinstated after revocation and a warrant. Most people who take care of these problems fast and voluntarily get a second chance in Sacramento, and other places. Once they show up in court (or have an attorney go for them), the court will reset the deadline(s) and try again.
Of course, the judge does not have to reinstate probation upon a request. The judge can say no – 30 days straight jail you blew it. That does happen. Some judges have a no tolerance police on DUI probation violations. They view it as the defendant ignored their direct court order, which is not good.
The best way to take care of a DUI warrant is to hire a private defense attorney to get the case back on the court’s docket again for a warrant recall / probation reinstatement request.
In many courts, a skilled attorney can get a DUI probation violation warrant case back on the court’s schedule in a couple of days. Sometimes the same day.
For more info on how to handle DUI warrants, see our article on the subject.
If you know you cannot complete a term of probation in time, go to the court in person, ask for an appearance, and ask the judge for more time or modification of the terms of probation. GO early, get good result.
Make sense? Poverty, school, work and having kids are not defenses to a probation violation. Stop telling me about them. Forget about that part of the story. Take action, avoid trouble. If you’re too late for that, hire an attorney like me to do the courthouse – “I screwed up but want to do everything right now” – work for you.
If you want a Free Attorney Case Review for a Probation problem or DUI warrant, email cdort(at)dortlaw.com
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