Often, violation of probations carries more exposure than the plea bargain 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 detection bracelet,
(5) install an ignition interlock
(6) ordered not to drink or not to drink with any measurable amount of alcohol,
(7) ordered to drive only with a valid driver license and insurance,
(8) ordered to submit to a 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. If during the probation, one of the orders is violated, the court can hold a probation revocation hearing and sentence the probationer to whatever the court deems an appropriate punishment, including jail time.
In cases of DUI’s in Los Angeles County, the probation is “informal”, also called “summary” or “court probation”, which means that there is no probation officer to report to and no probation fees to pay. Contrast that to a DUI in Ventura County, where the courts routinely order formal probation that requires reporting to a probation officer once per month and a payment of probation costs of approximately $1,500.00.
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 to 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’s court dealt with a parole revocation hearing, whereas Vicker’s court dealt with a probation revocation, but it adopted the entire scheme for the probation revocation hearings.
When a defendant admits to a probation violation without waiving those 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 allow you to terminate probation even when you 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 that probation must be 3 years. In this example, AB 1950 cannot be used to shorten the lenght 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 probaiton or convert CalTrans into jailtime. This law is found in Penal Code section 1203.1.
EXAMPLE: During a plea bargain, a defendant negotiated a probationary sentenced of 5 years for a felony offense that is not specifically proscribes a specific length of probation. This sentence is in violation of AB 1950. Under the law, the grant of probation is illegal and defendant must be resentenced to 2 years. However, because the sentence was negotiated with the prosecutor, the case has to go back to court for an opportunity to withdraw plea. The DA must agree to the reduction or to be allowed to withdraw from the plea bargain.
For the detailed discussion of your DUI case or a probation violation hearing, please contact Los Angeles DUI Attorneys directly at 323-464-6424.