Any time there's a claim that you violated your probation in a DUI case, you're entitled to have a probation violation hearing. In other words, the judge can't just automatically find that you violated your probation and then sentence you to the maximum for whatever it is that you pled guilty to.
Obviously, in felony cases, probation violations are much more severe because, for a felony DUI, you're typically looking at up to three years in prison. Whereas in a misdemeanor DUI, first offense, you're typically looking at up to six months in jail, or if it's a second or third offense, you could be looking at up to a year in jail.
So, these DUI probation violations in Los Angeles can be severe. Really what the court and the prosecutor are looking at is keeping the public safe. So, to that end, if you violate your probation in any way, you're probably looking at some jail time, and you're going to want to get an attorney immediately.
Because the attorney will be able to argue to try to keep you out of jail and explain to the judge and prosecutor why you're not a danger to the community.
Then you get into splitting hairs as to what the violation is. Is it an internal violation where you violated one of the terms and conditions of probation? In other words, maybe the judge told you to abstain from using alcohol during your probationary period.
That was one of the terms of your probation, and they found you drunk, walking around the street, and they tested your blood alcohol level, and you had alcohol in your system, and now you violated that term and condition of probation.
Or is it as simple as you not doing your DUI class in a timely fashion? So, that would be an internal violation – either not doing something you were supposed to or doing something that you were not supposed to.
I would consider an external probation violation in a DUI case to pick up a new topic. Everybody is ordered to obey all laws, and if you don't follow all directions, you're going to violate your probation and be looking at whatever the maximum is for the DUI you pled to.
Another area where I see people getting nailed on is driving. Even if you're not drinking and driving, if the DMV told you that your license is suspended and you're still on a suspended period and the police pull you over and catch you, that's a serious offense. You're looking at mandatory jail time for that type of probation violation.
Another scenario is that when you're on DUI probation, one of the standard terms and conditions is to have no blood alcohol level while you're driving. In other words, you can't drink at all, even if you're under the .08. So, if they test you and you're a .03, for example, and you're driving, then you violate your DUI probation, and you will be looking at jail time.
Standard For Probation Violation In A DUI Case
All the judge has to do is find by 51% that you violated your probation. If the judge finds that, then you've violated your probation, and you're going to be subject to jail time, community service, Caltrans, or whatever punishment the judge deems appropriate in your particular case, your specific scenario, and when someone is alleged to have violated their DUI probation.
Then they decide they want to have a probation violation hearing; then the prosecutor is going to call witnesses to try to prove to the judge – not a jury, you're not entitled to a jury in a probation violation situation – but the judge, they're going to have to prove by 51% – which is a -preponderance of the evidence – that you violated a term and condition of your probation, and therefore, should be punished for that.
A lot of times, I see people get caught in scenarios. Instead of them trying to file a new case against them, the prosecutors do what's called an “instead of” filing, which means instead of filing a recent lawsuit, they're just going to go right for the probation violation because they know that's easier to prove.
They know they only have to prove that by 51% or a preponderance of the evidence versus in a DUI trial, they'll have to prove the case beyond a reasonable doubt, which is a much higher standard.
So, suppose you have a probation violation related to a DUI case. In that case, there are all sorts of different angles that can be utilized to help you, to keep you out of jail, but obviously, you're going to need a seasoned DUI attorney to help make the final decisions on exactly how you're going to handle your case.
What I do is I have you come in, and we sit down and strategize on what we're going to do, what I'm going to have you do, and what I'm going to do moving forward, so we try to keep you out of jail and minimize the damage related to your DUI probation violation.