Interviewer: Let’s talk about probation. So how often is probation given to someone who’s convicted? And what is a typical probation scenario for DUI?
Brian: For misdemeanor DUI’s, I don’t know if I’ve ever had a client get probation. With aggravated DUI’s, I have never had a client NOT receive probation. Probation is in place to ensure that the person is doing well once released back into society after serving a prison term, which is basically required on most aggravated DUI convictions.
Probation Entails a Monthly Service Fee
There’s only one type of aggravated DUI conviction that does not require any prison time and may only require one day in jail, and that’s if you were driving with a child under the age of 15 in the vehicle, which is technically a classic felony, but you can have a sentence as low as one day in jail. Probation also ensures that the court gets paid its money and that the person does their counseling.
If there’s an aggravated DUI conviction, the minimum amount of fines and fees, I believe, comes out to about $4,500. The court wants to make sure that the person is paying those fines and fees off. And the terminal probation gives the person usually two or three or four years to work out a payment plan to pay off their fines and fees before they’re released from probation. Unfortunately, all the time that they are on probation, they are also paying a $65-a-month probation services fee. So they are paying to be allowed to continue to pay.
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Probation Officers Can Make Home Visits
Probation, usually, it’s not fun. I don’t believe I’ve ever had any client have intensive probation. They’ll just have either standard, also known as supervised probation, or they’ll have unsupervised probation with compliance monitoring. Or they will have unsupervised probation. The most common is supervised probation, where basically they have to check in with a probation officer. A probation officer might come to their house with a breath-testing device and do a surprise visitation, just knock on the door and tell the person to blow into this device. And if you test positive, you’re going to be in trouble.
Interviewer: Probation officers come to your house?
Brian: Probation is the following: You’re not allowed to drive, you’re not allowed to consume alcohol, you need to pay off your fines and fees, and you need to do your counseling. Whatever they want you to do, you’re going to have to do it, and the judge is very likely going to side with the Probation Office.
The Court Will Typically Follow the Recommendations of Your Probation Officer
Unfortunately, in the eyes of the court, the Probation Department is given a lot of leeway. I remember one instance that occurred quite a while ago. The Probation Department wanted my client to do something that wasn’t required as part of the sentence. If I remember correctly, it was something like attending domestic violence counseling on a DUI case. Unfortunately, the court said that if the Probation Department feels that that is appropriate then the judge is going to say it’s appropriate, too.
You Can Qualify for an Early Release From Probation
A person can get off of probation early. In most types of felonies, people can be released from the terms of probation after serving half of their time. So with a three-year probation term, after a year and half they’re able to get off probation early as long as they have successfully completed everything that’s required of them.
Aggravated DUI’s are different in that the law only allows someone to get off of probation on an aggravated DUI after serving two-thirds of his or her probation term. As time goes on, it is possible to get that supervised probation reduced down to unsupervised probation or unsupervised probation with compliance monitoring. Or it’s just possible that supervised probation becomes easier. Instead of checking in every month, you check in every 3 months. They just want to make sure primarily that you are not committing new offenses and you’re doing everything you’re supposed to be doing.
Committing a Crime While on Probation
The big hammer over the head occurs if someone commits a new crime while on probation, especially if that new crime is a felony. Under Arizona law, it is required that if you are on probation at the time of a new offense and you are convicted of that new offense, you have to get no less than the presumptive sentence on the new offense, which means you can’t get a mitigated sentence, you have to get the presumptive sentence. On top of that, whatever sentence you get for violating your probation has to be consecutive, which can in theory mean that if you’re on probation for an aggravated DUI and you commit another aggravated DUI, on the new case you have to get, if convicted, 4 1/2 years to 7 1/2 years plus either being reinstated to probation or 1 to 3.75 years in prison. So it could be 4 1/2 to 7 1/2 plus 1 to 3.75 years in prison.
Your Attorney Will Encourage You to Successfully Complete the Terms of Your Probation
Interviewer: When you work with a client, if you’re going to do a plea agreement, do you have to work on the probation elements of the case as well to mitigate those? Is that part of your work?
Brian: It’s not part of the contract. In making it not part of the contract, hopefully that encourages them to do well on probation. It’s kind of like a tough love type thing. They can hire me to take care of the probation violation if there is any.
Hopefully my advice in talking to them throughout the course of the initial case has convinced them how important it is to do well on probation, do everything that’s required of you. If there’s a probation violation, for example, on a class 4 aggravated DUI. Now, if on a class 4 DUI someone got the minimum sentence, which is four months in Department of Corrections plus probation, I strongly advise my clients that a probation violation is going to get you 1 to 3.75 years in prison.
Do not violate your probation. If you violate probation, you are facing a lot of prison time. You’re doing four months now, that’s not fun, you’re not going to like it, but you can overcome it. You’ll get out of prison and you move on with your life, and you do what’s required of you. If you get a violation of probation, though, that’s going to be years away from your family. You do not want to have to deal with that.
I have yet to have a client come back to me and hire me for a probation violation. Hopefully that’s because they haven’t violated probation. It’s possible that they just don’t want to call me back because of how much I’ve talked to them and instilled in them how important it is to do well on probation, but I’d like to think it’s that people did not violate probation.
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Are Probation Officers Difficult to Deal With? Or Is That an Urban Myth?
Interviewer: How hard it is, depending on the level of supervision, not to violate? Are probation officers out to get you? Do they want to get you? Or is it that you do what you’re supposed to and you won’t have any problems?
Brian: I’ve heard horror stories. Sometimes probation officers are not nice people. They don’t like their jobs. They’re definitely in a position of power, they hold your life in their hands, and some of them take advantage of that.
Unfortunately, I think the biggest issue on a probation violation is failing to check in. As well as failing to pay off the fines and fees, which are high. It’s going to be difficult to pay off the fines and fees. I think one of the more common ones is driving. If you’re convicted of an aggravated DUI, it used to be that your license was revoked for 3 years. Now it’s more likely that it’ll be revoked for 1 year and you can get a to-and-from-work permit for two years with an ignition interlock device on any vehicle you operate. But still that’s a long time not to be able to drive.
People do get tired of taking the bus to work or taking cabs. It gets expensive. Sometimes they just say, you know what, forget this. I don’t care that I’m not allowed to drive. I’m just going to drive to work. I don’t work that far. I’m just going to do it and hope for the best. If an officer catches them, that’s considered a violation of probation, and they are literally looking at 1 to 3.75 years in prison because they got tired of taking a bus or calling a cab or walking.
Interviewer: Are you ever hired for probation violation cases on their own, after the court case?
Brian: No. People know me as the DUI guy. If they have a pending DUI case, I can handle probation matters. Very rarely will a person be dealing with a probation violation that is not also because there’s another charge out there. So if that other charge is an aggravated DUI then I represent people on their new charge of aggravated DUI and their probation violation.
But if they violate their probation because they were caught burglarizing a house, they’re likely not going to call me. I don’t handle burglaries. All I do are the DUI cases. Chances are if they’re going to hire an attorney for their burglary case, that attorney will also represent them on the probation violation.
The Court Decides the Length of Probation
Interviewer: When you’re negotiating a plea agreement, for instance, do you try to negotiate a lower level of supervision on probation, or is that not even something you’re able to control?
Brian: The amount of time on probation is actually up to the judge. It is not something that is negotiated between the prosecutor and the defense attorney. I have never had probation in misdemeanor courts.
In felony courts, it is going to happen if only to ensure that the person pays off their fines and fees. It’s an argument to the judge. I don’t believe I’ve ever had anyone get the maximum. On an aggravated DUI, it is usually about three years. That’s just to ensure that the person pays off all their fines and fees and, in a way, protects the client from having to have their fines and fees go to collection and all of a sudden they’re dealing with a collection agency.
I think very rarely, like maybe once or twice in my career, I’ve been able to convince the court to give my client one day of probation, just enough time for them to pay off their fines and fees and if they’ve already done the counseling that’s required of them. It is extremely rare. It’s really not recommended, especially if people are going to need time to do all the terms of probation. You don’t want to set up your client for failure. Sometimes that means asking for a few years of probation. Sometimes you’re not doing your client a service if you’re just asking for 6 months of probation because you’re setting them up to fail.
Interviewer: That is an interesting perspective.