A DUI probation violation occurs when a person, who has been placed on probation for a DUI offense, violates a term or condition of the DUI probation. A few examples of probation violations include failing to pay court-ordered fines, not attending DUI school or a treatment program, and not adhering to random drug and alcohol testing.
If a violation of probation occurs, then a probation officer or police officer can arrest the probationer and bring him/her to a probation violation hearing. A judge can also issue a bench warrant for the defendant’s arrest.
A probation hearing is held before a judge and it gives the probationer the chance to present evidence that:
- he/she did not violate probation, or
- if a violation occurred, it was minor.
If the judge finds that there was no probation violation, then the defendant remains on probation with the same terms and conditions.
If the judge finds there was a violation, then he/she can:
- do nothing and allow the probationer to remain on his/her original probation terms,
- make the terms harsher, or
- impose a jail or prison term.
Our California criminal defense attorneys will discuss the following in this article:
- 1. What are the most common reasons for a DUI probation violation?
- 2. Who initiates a DUI probation hearing?
- 3. What happens at the hearing?
- 4. What are the possible outcomes of the hearing?
1.What are the most common reasons for a DUI probation violation?
A DUI or DWI probation violation occurs when a person put on probation for a DUI offense violates a term or condition of that probation.
Common acts that form the basis for a probation violation include:
- committing a crime or criminal offenses (in addition to the DUI which forms the basis for the probation),
- failing to submit to a DUI breath test or DUI blood test if arrested on suspicion of drunk driving or driving under the influence (such tests may also include a preliminary alcohol screening (PAS) test),[i]
- not attending DUI school or a drug or alcohol treatment program,
- driving without an ignition interlock device (IID),
- failing to adhere to random drug and/or alcohol testing,
- not performing community service, and
- driving with any measurable blood alcohol content (BAC).
As to the last violation, note that California Vehicle Code 23600 VC prohibits people on DUI probation from driving with any measurable amount of alcohol in their system. This is referred to as California’s “zero-tolerance” law.
A violation of this law can result in probation revocation. This will occur if the defendant’s BAC is measured at 0.04% or greater. The defendant can usually avoid having probation revoked, however, by serving at least 48 hours of jail time.[ii]
Note that many first-time misdemeanor DUI offenders violate probation by receiving a new DUI charge during their probationary period. A new charge not only violates probation, but it will result in new criminal charges that are in addition to the underlying DUI offense.
Note, too, that if you violate the terms of your probation, you must attend a probation hearing.[iii] This is a court appearance that is held before a judge. The probationer has the right to be represented by a:
- DUI defense attorney, or
- Defense lawyer.
2. Who initiates a DUI probation hearing?
If a person violates a probation term, then:
- a probation officer (PO) or police officer can arrest that person, and
- bring him/her to a hearing.
In addition, a judge may issue a bench warrant for the person’s arrest.
Bench warrants are not the same things as arrest warrants. Arrest warrants are issued because of suspected criminal activity. Bench warrants get issued for such things like:
- a probation violation,
- failure to appear for a court date, and
- failing to obey a court order.
Once issued, a bench warrant gives law enforcement officers the authority to:
- arrest the person named in the warrant, and
- bring that person to court.
Note that a bench warrant generally does not expire. It remains in effect until recalled by the judge.
3. What happens at the hearing?
A probation violation hearing is a court proceeding where the probationer is given a chance to plead his/her case.
This means the person can present evidence to show that:
- he/she did not violate the DUI probation, or
- if a violation occurred, it was minor.
The hearing is held before a judge and both the prosecutor and the probationer’s DUI lawyer are present. The prosecutor often presents evidence that the probationer did in fact violate a probation condition.
Note that the burden of proof during these hearings is “by a preponderance of the evidence.”
This means a prosecutor has to show that it is more likely than not that the probationer violated probation.
The burden is a lower burden than “beyond a reasonable doubt,” which applies in a criminal trial.
Defendants at these hearings have the following rights:
- the right to be represented by an attorney,
- the right to call witnesses, and
- the right to testify on his/her own behalf.
At the conclusion of a hearing, the judge makes a finding as to whether or not the defendant violated any probation terms.
4. What are the possible outcomes of the hearing?
If the judge finds that the defendant did not violate his/her probation, then nothing happens. The defendant stays on probation and the conditions remain the same as before the hearing.
If a judge says a defendant did violate probation, then the judge may:
- reinstate the defendant’s probationary sentence on the same terms and conditions (which is more usual for a first-time violation),
- modify the defendant’s probationary terms so that they are stricter, or
- revoke the probationary sentence and order the defendant to serve his/her prison or jail sentence.[iv]
Note that probation is given as an alternative to prison or jail. If probation gets revoked, then the defendant has to face the jail or prison term for the offense that he/she originally committed.
Note, too, that when a defendant violates a probation term, and the act was also a criminal offense, the party might also face new criminal charges.
For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law offices at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.
They also represent clients throughout California, including those in Los Angeles, San Diego, and Orange County.
[i] See, for example, California Vehicle Code 23154 VC.
[ii] See California Vehicle Code 23600 VC.
[iii] Penal Code 1203.2 PC.
[iv] See, for example, Penal Code 1203.1 PC.