Probation & Probation Violations in California DUI Cases

 


Most people convicted of a California DUI are granted probation. DUI probation lets a defendant stay out of jail by agreeing to certain terms and restrictions.

These terms usually include payment of a fine and completion of California DUI school. The defendant must also agree not to drive with any measurable blood alcohol concentration (“BAC”) during the probationary period (usually three years).

Failure to comply with such terms and conditions may result in a DUI probation violation (also known as a "PV"). The judge can then revoke probation and sentence the defendant to jail.

To help you better understand DUI probation, our California DUI defense lawyers discuss, below:

If, after reading this article, you have additional questions, we invite you to contact us at 855-LAWFIRM.  You may also find helpful information in our articles on California DUI penalties and DUI plea bargaining.

Judge in black robes yelling at lawyer and his female client in a courtroom
Violating a condition of DUI probation in California can result in a defendant going to jail.

1. California DUI Probation Conditions

California imposes certain conditions whenever a defendant is sentenced to DUI probation. Some of these depend on whether it is the defendant's first DUI, second DUI, third, or subsequent "wet reckless" conviction. Others are imposed no matter how many prior drunk driving or "wet reckless" convictions the defendant has.

The following are examples of the range of conditions the court can impose. The precise terms will vary depending on whether the defendant is a first-time or repeat offender.1

Conditions that vary based on whether it is a first or subsequent "wet" offense

  • A base fine of $390-$1,000. Depending on the county in which the conviction occurs, this amount will typically double or triple after penalties and court assessments are added in.
  • A driver's license suspension of six months to four years.  In many cases, this can be converted into a restricted license.  A restricted license lets someone drive to and from (1) school, (2) work, (3) DUI school, or (4) any other court-approved location.
  • A twelve-hour to thirty-month alcohol program (otherwise known as DUI school).
  • A set number of days in a county jail.

General terms of all DUI probations

There are also probation conditions that are imposed regardless of whether it's a first or subsequent conviction.2 This include:

2. California's Zero Tolerance Laws

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.

People caught violating this law (or refusing to submit to a chemical test while on probation) can have their probation revoked. 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 spending at least 48 hours in county jail.4

A more serious consequence of violating California's "zero tolerance" law is an automatic one-year driver's license suspension.5 To fight this suspension, the defendant must request a DMV hearing within ten (10) days of the "zero tolerance" arrest and then win it.

3. California Ignition Interlock Devices (IIDs)

Ignition interlock devices (IIDs) allow a car to start only if the driver provides an alcohol-free breath sample. A judge typically orders a defendant to install an IID (at the defendant's expense) as a condition of DUI probation when:

  • The defendant has a particularly high BAC (0.15% or greater),
  • The defendant refused to submit to a chemical blood or breath test, or
  • It is the defendant's second or subsequent DUI.6

But certain California counties--including Los Angeles, Alameda, Tulare, or Sacramento--require the installation of an IID for any DUI.7 The period in which the device must remain installed varies from five months to four years depending on:

  1. Whether it is a first, second, third or subsequent conviction, and
  2. Whether the defendant was convicted of a "standard" DUI under Vehicle Code 23152 VC or for a DUI causing injury Vehicle Code 23153 VC.8

The California DMV will also automatically require an IID for a period of one to three years if a driver is caught driving with a suspended license while under the influence of alcohol and/or drugs.9

4. Driving While on DUI Probation

One mandatory term of drunk driving probation is that the defendant does not commit any additional criminal offenses while on probation. This includes vehicle code violations such as:

Another offense that is problematic for people on DUI probation is Vehicle Code 14601.2 VC, driving on a license suspended due to DUI.

VC 14601.2 carries a mandatory jail sentence and heavy fines. It is also what's known as a "priorable" offense. This means that the penalties increase with each subsequent VC 14601.2 conviction.

And doing any of the above can lead to charges for the probation violation itself as well as the other criminal offense. 

5. Alternative Sentencing

A variety of probation conditions may be imposed instead of jail or prison. These are typically referred to as "alternative sentencing" options. Some of the most popular alternative sentencing options that a judge can impose in connection with DUI probation include:

  • Cal-Trans roadside work;
  • Community service;
  • House arrest / electronic monitoring, possibly with the SCRAM device (SCRAM stands for Secure Continuous Remote Alcohol Monitor and is a tamper-resistant ankle bracelet that checks for alcohol. It is typically only issued in cases involving multiple DUIs and/or alcohol addiction);
  • Victim restitution to anyone who suffered injury or damages in connection with the offense; and/or
  • Alcohol education classes (discussed below).
Counseling
Alcohol education classes (also known as California DUI school) are a common condition of probation in drunk driving cases.

6. California Drunk Driving Programs

Often as a condition of drunk driving probation, the judge and/or prosecutor will require a defendant to attend special alcohol-related classes. Some of these classes, such as California DUI school, are required by law.

Other programs, such as Alcoholics Anonymous ("AA") are to help with a perceived addiction. Still others are designed to act as a deterrent to prevent subsequent drunk driving. Examples of such preventative programs include MADD's Victim Impact Panel ("VIP") and Los Angeles's Hospital and Morgue ("HAM") program.

Let's take a closer look at these programs.

6.1. California DUI School

California DUI school consists of any of five court-approved alcohol programs. The precise program a defendant will be sentenced to depends on whether the conviction is for a first or a subsequent offense.

These five "drinking and driving" programs are:

  1. A twelve-hour program. This is typically imposed in connection with a first "wet reckless" conviction, or sometimes with a "dry reckless" conviction.
  2. A three-month program (commonly referred to as the AB541 program). This program is usually imposed for a "standard" first-time DUI.
  3. A nine-month program. The judge will order this class if the defendant's BAC is particularly high on a first offense OR if the defendant is convicted of a "wet reckless" and has a prior "wet" or DUI conviction within the prior 10 years.10
  4. An 18-month program (commonly referred to as the SB38 program). The judge will impose this class for a "standard" second DUI.
  5. A 30-month program (currently only offered in Los Angeles and Stanislaus Counties).  The judge orders this program if the defendant's BAC is particularly high in connection with a second DUI OR if it is the defendant's third DUI and he/she has already completed the 18-month program.

While enrolled in any of these programs, the defendant must refrain from using alcohol and/or drugs. If a program leader suspects that an attendee is "under the influence", that person faces expulsion from the program and, as a result, a probation violation.

6.2. Alcoholics Anonymous

Even if the defendant is not an alcoholic, prosecutors and/or judges will often require him/her to attend Alcoholics Anonymous ("AA") meetings once or twice a week. The court will give the defendant an attendance verification form. The meeting director must "sign off" each session the defendant attends.

Failure to attend meetings or to obtain a valid signature on the verification form can be charged as a probation violation.

6.3. Mothers Against Drunk Driving (MADD) "Victim Impact Panel" (VIP)

The MADD VIP program is a "scare tactic" that may be imposed as a DUI probation condition.  Depending on the county in which the defendant is convicted, the court may require attendance at this program by first-time offenders. Other counties may impose it as a discretionary condition of probation.

California's MADD VIP program lasts about two and one-half hours. It includes a presentation by at least one person whose life has been affected by drunk-driving. It may also include a video presentation and/or a slide show. Depending on the county, there may also be a presentation by a police officer and/or a drunk driving offender.

6.4. Hospital and Morgue (HAM) Program

Los Angeles County sometimes refers first-time DUI offenders to its Los Angeles's Hospital and Morgue ("HAM") program, which is run by the coroner's office. Other counties (including Orange County) may run similar volunteer programs, often aimed at younger drivers (although anyone may be referred).

The HAM program consists of a four-hour visit to the hospital (usually an emergency room) and a four-hour visit to the morgue. The goal is to prevent drinking and driving by showing offenders first-hand the injuries it can cause.

While not all of the people who are brought into the E.R. or morgue will be victims of drunk driving, some will. The HAM program also includes a power-point presentation and tour of both locations. Attendees will observe bodies being processed (photographed, fingerprinted, and undressed) and autopsied.  Some courts may additionally require defendants to write a 1,000-word essay about their experience.

7. Compliance with DUI Probation Terms

Judges require proof of enrollment in any and all programs that are conditions of DUI probation. This includes classes, community service, Cal-Trans, etc. Defendants must also provide proof of compliance other terms of probation, such as payment of fines and/or restitution.

Failure to provide such proof can result in the issuance of a California bench warrant for the defendant's arrest.11 A bench warrant authorizes law enforcement to locate, arrest, and bring the defendant before the issuing judge.  In addition, once the defendant appears before the court, the judge will likely sentence him/her for a probation violation for disobeying a court order.

Common reasons a bench warrant is issued in cases of DUI probation include failure to:

  • show proof of enrollment,
  • show proof of completion,
  • attend  court-ordered alcohol programs, community service or labor,
  • pay fines,
  • pay victim restitution, and/or
  • appear for any post-conviction appearances.

Charged with DUI in California? Call us for help...

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If you or a loved one is in need of help with probation violations we invite you to contact us for a free consultation in office or by phone.

Call us at 855-LAWFIRM or complete the form on this page to speak confidentially to an experienced California DUI defense attorney in your areas.

We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

We also have offices in Las Vegas and Reno that represent people charged with violating Nevada's DUI probation laws.

Legal References:

  1. The listed terms are taken from California Vehicle Code sections 23538, 23542, 23548, and 23552, depending on whether the conditions are imposed in connection with a first, second, third, or subsequent offense, respectively.
  2. The listed conditions are taken from California Vehicle Code section 23600 VC -- Conviction and pronouncement of sentence for violations of 23152 or 23153; probation; minimum confinement or fine; violation of probation.  ("(a) If any person is convicted of a violation of [California Vehicle Code] Section 23152 or 23153, the court shall not stay or suspend pronouncement of sentencing, and shall pronounce sentence in conjunction with the conviction in a reasonable time, including time for receipt of any presentence investigation report ordered pursuant to Section 23655.

    (b) If any person is convicted of a violation of Section 23152 or 23153 and is granted probation, the terms and conditions of probation shall include, but not be limited to, the following:

    (1) Notwithstanding Section 1203a of the [California] Penal Code, a period of probation not less than three nor more than five years; provided, however, that if the maximum sentence provided for the offense may exceed five years in the state prison, the period during which the sentence may be suspended and terms of probation enforced may be for a longer period than three years but may not exceed the maximum time for which sentence of imprisonment may be pronounced.

    (2) A requirement that the person shall not drive a vehicle with any measurable amount of alcohol in his or her blood.

    (3) A requirement that the person, if arrested for a violation of Section 23152 or 23153, shall not refuse to submit to a chemical test of his or her blood, breath, or urine, pursuant to Section 23612, for the purpose of determining the alcoholic content of his or her blood.

    (4) A requirement that the person shall not commit any criminal offense.

    (c) The court shall not absolve a person who is convicted of a violation of Section 23152 or 23153 from the obligation of spending the minimum time in confinement, if any, or of paying the minimum fine imposed by law.

    (d) In addition to any other provision of law, if any person violates paragraph (2) or (3) of subdivision (b) and the person had a blood alcohol concentration of over 0.04 percent as determined by a chemical test, the court shall revoke or terminate the person's probation as provided by Section 23602, regardless of any other proceeding, and shall only grant a new term of probation of not more than five years on the added condition that the person be confined in the county jail for not less than 48 hours for each of these violations of probation, except in unusual cases where the interests of justice would best be served if this additional condition were not imposed.")

  3. California Vehicle Code section 23154 VC -- Persons on probation for driving under the influence; operation of motor vehicle with blood-alcohol percentage of .01 percent or greater prohibited; use of preliminary alcohol screening test.  ("(c)(1) A person who is on probation for a violation of [California Vehicle Code] Section 23152 or 23153 who drives a motor vehicle is deemed to have given his or her consent to a preliminary alcohol screening test or other chemical test for the purpose of determining the presence of alcohol in the person, if lawfully detained for an alleged violation of subdivision (a).")
  4. See California Vehicle Code 23600, endnote 2 above. ("(d) In addition to any other provision of law, if any person violates paragraph (2) or (3) of subdivision (b) and the person had a blood alcohol concentration of over 0.04 percent as determined by a chemical test, the court shall revoke or terminate the person's probation as provided by [California Vehicle Code] Section 23602, regardless of any other proceeding, and shall only grant a new term of probation of not more than five years on the added condition that the person be confined in the county jail for not less than 48 hours for each of these violations of probation, except in unusual cases where the interests of justice would best be served if this additional condition were not imposed.")
  5. See California Vehicle Code 23154 -- Persons on probation for driving under the influence; operation of motor vehicle with blood-alcohol percentage of .01 percent or greater prohibited; use of preliminary alcohol screening test.
  6. California Vehicle Code 23575 -- Court-mandated use of ignition interlock device. ("(a)(1) In addition to any other provisions of law, the court may require that a person convicted of a first offense violation of [California Vehicle Code] Section 23152 or 23153 install a certified ignition interlock device on any vehicle that the person owns or operates and prohibit that person from operating a motor vehicle unless that vehicle is equipped with a functioning, certified ignition interlock device. The court shall give heightened consideration to applying this sanction to a first offense violator with 0.15 percent or more, by weight, of alcohol in his or her blood at arrest, or with two or more prior moving traffic violations, or to persons who refused the chemical tests at arrest. If the court orders the ignition interlock device restriction, the term shall be determined by the court for a period not to exceed three years from the date of conviction.")
  7. California Vehicle Code 23700 VC -- Pilot program to reduce driving under the influence offenses; establishment in Alameda, Los Angeles, Sacramento, and Tulare Counties.  
  8. See same.
  9. California Vehicle Code 23573 -- Violations necessitating ignition interlock device; installation and maintenance; license restriction; exemptions; failure to comply. 
  10. California Vehicle Code 23103.5 -- Acceptance of guilty or nolo contendere plea to a violation of Vehicle Code 23103 in place of charge for violation of 23152; statement by the prosecution; duty of court; violations; effect.  
  11. California Penal Code 978.5 -- Bench warrant of arrest; issuance; service.   

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