DUI Probation is a very common resolution in many DUI cases. However, the law does not require that a defendant is placed on probation. Instead, a defendant in a DUI case can resolve his or her case for a “terminal disposition”, meaning, after the sentencing, there are no obligations to the court because after the sentence is complete and the case is over. In fact, you must agree to be placed on probation.
Defendants Want to Be on DUI Probation to Avoid Jail Time.
Some defendants are not eligible for DUI probation because of the record or the nature of the offense. For instance, if you are charged with a 3rd felony, the DA can allege a special allegation under California Penal Code section 1203(e)(4), which disqualifies another grant of probation.
In contrast, most misdemeanor DUIs are sentenced to summary probation. It is also common for felony DUI to be sentenced to probation (especially on 1st offense). A person on felony probation will be supervised by the probation office. In contrast, misdemeanor probation (unless it is a Ventura County case) does have supervision. If a defendant is found guilty and the court decides that probation is appropriate, the court has broad discretion in determining what condition of probation should be imposed (California Rule of Court 4.414). For example, some sentencing courts will impose as a condition of DUI probation that the defendant completely abstains from drinking alcohol and does not visit any locations where alcohol is sold. Other DUI probation conditions can be equally harsh and you might want to hire an attorney to argue to the court that your DUI probation conditions should be different. (California Penal Code section 1203.1(j)). California Supreme Court in People v. Lent 124 Cal 3d 481 provided a rule for the imposition of terms and conditions of probation:
“…a condition of probation will not be held invalid unless it
(1) has no relationship to the crime of which the offender was convicted
(2) related to conduct that is not in itself criminal
(3) requires or forbids conduct which is not reasonably related to future criminality…”
The Lent‘s court determined that “conditions which regulate conduct, not itself criminal must be reasonably related to the crime of which the defendant was convicted or to future criminality”. But, while the sentencing court can not make conditions of DUI probation that “exceed the bounds of reason” if an objection to the term of probation is not raised at the time of sentencing, such objection is waived for appeal (People v. Welch 5 Cal 4th 228 (1993)).
You or your attorney must speak up and object to a condition of probation in open court at the time of sentencing or you lose that right. You must argue that the condition of probation you don’t like is overbroad and unreasonable and it has little bearing on factors contributing to the particular crime. For example, if the court imposes a condition that is not related to a DUI prosecution, you must object at the time the court orders it. You can request that the court orders a probation report to have the Probation Department weigh in on the sentence (this is very uncommon for misdemeanors in Los Angeles County). If the probation department prepares a favorable probation report, the recommendation of the probation department will be very convincing to the Court. A probation report has to be prepared in felony cases but is completely discretionary in misdemeanor cases. Note: Ventura County places DUI offenders on Formal DUI probation, a very unusual sentence by Los Angeles County standards.
Also, under recent changes in the law, probation for most cases is limited to 1 year for misdemeanors and 2 years for felonies. This law does not apply to DUI, however, it does apply to “wet reckless” cases, a common alternative to DUI cases. Also, this new law applies retroactively to persons who were placed on probation prior to the new law.
PEOPLE V. KITE (87 Cal.App. 5th 986)
This 2023 decision from the San Diego Division of California Court of Appeals limits DUI probation to the maximum possible punishment under the conviction. Kite was convicted of a DUI and a Hit and Run, both felonies. Under the sentencing laws, his maximum exposure for a felony DUI is 3 years in the California State Prison, and a felony Hit and Run carried an additional maximum of 8 months. The 8 months is calculated based on the law which states that when a person is convicted of 2 crimes in the same case, he can be sentenced to the highest number of years under the most serious crime and then an additional jail time can be added for any other crimes not to exceed 1/3 the midterm for any additional crimes. A hit-and-run sentencing range is 16 months (low term) 2 years (mid-term) and 3 years (upper term). Here, because the midterm is 2 years, a third of it is 8 months. Thus maximum jail time for Kite for the felony DUI and felony hit and run conviction is 3 years and 8 months.
The court held that the length of probation for DUI cases cannot exceed the maximum punishment. This means that Kite’s maximum probationary period is 3 years and 8 months. The court thus reduced his probation from 5 years (the original sentence) to 3 years and 8 months.
Thus, if you are on probation for a felony DUI for 5 years, you can reduce the probation to 3 years as long as you do not have other convictions or special allegations. Los Angeles DUI attorney can get your probation period reduced. Call Criminal Defense Attorney Los Angeles Now.
If you believe that the conditions of DUI probation imposed on you are not fair and are not reflective of the facts of the case, call us so that we can discuss with you the modification of your DUI probation. Also, if you are in violation of your DUI probation, call Los Angeles DUI lawyer. We can help avoid a probation violation and save you from a possible jail sentence. Keep in mind, that the new law in California allows the judges to deny expungements, to wit, dismissal under PC 1203.4, when defendants did not complete their probation successfully. Call (818) 921 7744 to get a free consultation from one of the best DUI attorneys in Los Angeles. We are here to provide you with quality defense at an affordable price.