Interviewer: That makes sense. We have discussed this issue in general terms but we haven’t gone in to detail yet. On DUI cases, when does probation come into play? Is it only if you’re convicted? Or can you get probation while you’re going through the process for a DUI?
Brian: Probation is only a term of a sentence It is only following a conviction. With misdemeanor DUI’s the length of the probation can be up to five years. With felony DUI’s it can be up to 10 years. That is technically the only way to get quote-unquote probation.
Is There a Probation Term Before a Conviction? What Are Pre-Trial Services?
However, in some cases, and it’s mostly in felony cases, if there is some concern that a person is a threat to the public, the judge may decide to give this person a bond and/or release this person to what’s called pre-trial services.
Pre-trial services are run by the Probation Department. It is very similar to the terms and conditions of probation. What it basically says is this: We are going to let you stay out of custody, or we’re going to put you in custody but if you bond out, we want there to be some assurances that you are not out there drinking, possibly not out there driving, not out there committing new crimes, and we want to make sure that you are going to show up to court.
So someone who’s placed on pre-trial services will have to check in with a pre-trial services officer, which is also a probation officer. They may have to wear an ankle monitor. They’re not allowed to consume any alcohol. They’re not allowed to drive in certain situations. The terms of pre-trial services can mimic the terms of probation, but technically, legally speaking, quote-unquote probation is only for people who have been convicted of some sort of offense.
When Might You Be Ordered to Follow Pre-Trial Services?
Interviewer: In what circumstances have you seen people put on pre-trial supervision? You mentioned some of the common specific things they’ll have to do. That sounds pretty severe. When is that likely to be imposed?
Brian: It’s different for each individual. Some people get pre-trial services, some people don’t, and there’s sometimes no rhyme or reason to why one person got it and one person didn’t. It’s completely up to the judge who is doing the initial appearance court.
And recently there was one judge that must have been so new that two clients who ended up signing up with me had ankle monitors. I’ve never even heard of someone having an ankle monitor while on pre-trial services. So I was able to get in front of a different judge and get those ankle monitors removed. But the judge sees if the person has ties to the community. A person is more likely to get a bond if they are from out of state. It’s not really fair, but in theory that person is more of a flight risk because they’re going to go home to their other state and they may decide not to come back.
Someone who has a prior DUI conviction might find him or herself enrolled in pre-trial services. If someone had alcohol and drugs alleged to be present in their system during the arrest that might also be a reason for pre-trial services. If they were rude to the officer, if they fought the officer during the arrest and if there’s a number of different charges, these are all reasons why they could be on pre-trial services.
Now, on the other hand, there are people that have all those same issues, and they’re released on their own recognizance without a bond and without pre-trial services.
Can Your Attorney Reduce Your Release Conditions?
Interviewer: By the time people retain you, is too late for that determination to be affected?
Brian: Usually when a person hires me, they’re past that point where their release conditions are decided. However, if the release conditions are too onerous, I can go in front of a judge and ask that the release conditions be reconsidered. Normally the rule is, unless there’s a change of circumstances, release conditions are not reconsidered.
I’m usually able to convince the judge that there are enough changes in circumstances to warrant at least the consideration of a change in circumstances. I am often able to get my client off of pre-trial services or to get their bond money relinquished back to them.
Some of my clients aren’t wealthy. They have a difficult time paying for legal services, and some people need their bond money in order to pay their attorney’s fees, but they don’t want to go back into custody just to do that. So I’ve been pretty successful in convincing the court that my client needs their bond money back, they are not a flight risk, they are not a danger to society, but they need their money back in order to pay legal fees. It’s something that can be reconsidered; however, I am usually not retained prior to the initial decision on release conditions.