Often, violation of probations can result in more jail time than the plea bargain deal itself. Paris Hilton and Lindsey Logan were sentenced to jail not after pleading guilty but after being found in violation of probation.
So, what is probation? Probation is a period during which a probationer has to abide by certain rules. In exchange for an easier sentence, the probationer can be ordered to:
(1) do some jail,
(2) do some community service,
(3) do an alcohol education program and an alcohol deterrence class,
(4) wear an alcohol monitor bracelet,
(5) install an ignition interlock device in his or her car
(6) ordered not to consume any alcohol
(7) ordered to drive only with a valid driver’s license and insurance,
(8) ordered to submit to chemical testing if requested by a police officer,
(9) ordered not to violate any law.
In addition, the court can impose whatever orders it deemed appropriate under Lent case. If during the probation, one of the court orders or terms of probation is violated, the court can hold a probation violation hearing and sentence the probationer to whatever the court deems an appropriate punishment, including jail time up to the maximum permitted under the statute for the convicted crime (for example, for a first offense misdemeanor DUI, defendants often are sentenced to no jail time, but the maximum punishment for 1st offense DUI is 6 months in jail).
In Los Angeles DUI cases, the probation for misdemeanor DUIs is always “informal”, also called “summary” or “court probation”, which means that there is no probation officer to report to and no probation fees to pay. For comparison, in Ventura County DUI, the judges often put defendants on formal probation that requires reporting to a probation officer once per month and a payment of probation costs.
If the probationer gets arrested for yet another crime, he or she will likely face a probation violation hearing after which the court will determine if there is a violation of the probation and what the punishment should be.
The probationers have due process rights (14th Amendment) at the probation revocation hearings.
In California, the rights originate mostly in People v. Vickers, a 1972 Supreme Court case which in turn mostly relied on the US Supreme Court decision in Morrissey v. Brewer that give probationers the following rights:
(1) right to counsel;
(2) written notice of the claimed violation;
(3) disclosure to the probationer of the evidence against him or her;
(4) opportunity to be heard in person and to present witnesses and documentary evidence;
(5) the right to confront and cross-examine adverse witnesses;
(6) a neutral and detached hearing body;
(7) a written statement of the fact finder as to the evidence relied on and the reasons to revoke if the court has not stated its reasons on the record.
Keep in mind, should you start reading Morrissey opinion, Morrissey court dealt with a parole revocation hearing, whereas Vicker’s court dealt with a probation revocation, but it adopted the same approach for the probation revocation hearings.
But, when a defendant admits to a probation violation without Vicker’s rights, the probation violation is invalid and should be reversed.
Also, under the newly passed AB 1950 law, probation is limited to 1 year for a misdemeanor and 2 years for a felony. This allows many defendants to avoid violation of probation. The new law applies retroactively and will terminate probation even when defendants did not comply with its terms. The only exception to this rule is when the crime specifically states how long the probation must last. For example, DUI statutes specifically say that probation must be 3 years. In this example, AB 1950 cannot be used to shorten the length of probation. In most other cases, the court must terminate probation early. A defendant can also file a motion to terminate probation early under AB 1950 and have his probation terminated at a hearing. This applies even when there are outstanding obligations to the court. For example, if you have not completed your CalTrans but under AB 1950 probation must terminate, the court cannot extend probation or convert CalTrans into jail time. This law is found in Penal Code section 1203.1.
EXAMPLE: During a plea bargain, a defendant negotiated a probationary sentence of 5 years for a felony offense that does not specifically proscribe a specific length of probation. This sentence is in violation of AB 1950. Under the law, the grant of probation is illegal and the defendant must be resentenced to 2 years. Some judges think that when a probationary length was negotiated with the prosecutor, the remedy is for the prosecutor to withdraw the plea. Los Angles Criminal defense attorney and Los Angeles DUI attorneys think this is not a correct analysis of the law because, under AB 1950, the court loses jurisdiction to withdraw the plea.
For a detailed discussion of your DUI case or a probation violation hearing, please contact Los Angeles DUI Attorneys directly at 323-464-6424.