In Spanish, the verb "probar" means to test or to prove. The English word "probation" is from the same stem. Probation describes a period of time after a criminal offense where the convicted person must prove that they are on the straight and narrow by following certain rules the judge lays out.
Probation after a conviction for driving under the influence (DUI) may include a condition that the probationer completely abstain from alcohol, and it will certainly include a condition that they do not drink and drive. A violation of a probation condition can result in serious consequences.
TL;DR (Too Long; Didn't Read)
Anyone who violates DUI probation by drinking and driving is likely to have their probation revoked, which may result in a jail term. Their parole officer can arrest them or cause them to be arrested and required to appear at a parole violation hearing before the court.
What Is DUI Probation?
Driving under the influence (DUI) or driving while intoxicated (DWI) is a crime in every state. Generally, drivers who are convicted of this crime are sentenced to a term of probation as part of their sentence. This may be after serving a jail term or instead of one. The judge determines the terms of probation depending on state law and the circumstances of the crime, but typically, probation lasts for at least one year.
Probation is a period when the driver must show that they can and will behave in a prudent, law-abiding manner. A probation officer supervises the convicted driver to see whether they abide by the conditions of probation as ordered by the court. These typically include limitations and restrictions on the use of alcohol. A violation of any condition will result in negative consequences to the driver.
Typical Probation Conditions
Each state determines the conditions that judges can impose on those convicted of crimes, but they usually give the courts discretion in crafting the terms. That means that there is no universal list of probation terms and conditions. However, some conditions are used quite regularly. They can include:
- Completing a substance abuse evaluation and recommended treatment program.
- Abstaining from alcohol and drug use.
- Attending Alcoholics Anonymous meetings.
- Submitting to random controlled substance and alcohol testing.
- Installing and using an ignition interlock device (IID) in every vehicle driven.
- Submitting to a DUI breath or urine test if stopped for a DUI.
- Driving with any measurable blood alcohol concentration (BAC).
Abstaining From Alcohol
Must a driver on DUI probation stop drinking alcohol completely? Anyone on probation should review the terms and conditions with their own attorney to be sure they understand what they can and cannot do. While in some states, abstinence from alcohol is a condition of DUI probation, in others it is not. Drinking and driving is almost always a condition of probation.
For example, Georgia forbids alcohol use by those on DUI probation. Drivers convicted of a DUI in Georgia must abstain from all alcohol use or face probation revocation. This is also the case in Michigan, where a probation officer conducts random drug and alcohol tests and anyone testing positive for alcohol or drugs is taken into court.
In Florida, the driver is prohibited from using intoxicants "in excess." In other states, this issue is left for county courts to determine, and the answer varies depending on the county in which the driver was arrested.
Violation of Probation Conditions
If a driver is caught violating a condition of their probation, the consequences depend on how serious the court considers the error. A minor violation, like failing to complete a substance abuse program on time, may simply result in a new deadline to do so. A serious violation, like another instance of driving under the influence, can have much more serious consequences.
Any criminal defendant accused of a probation violation has a legal right to a hearing. Either the probation officer or a law enforcement officer can arrest the driver and bring them to the hearing. This kind of hearing is often held in the same way a trial is conducted, and both the driver and the prosecutor can present evidence.
The state must prove that the violation occurred, usually by a preponderance of the evidence standard, meaning more likely than not. The driver can present evidence that they did not violate probation. If the court finds that the driver did violate probation, any number of penalties can issue.
Potential Penalties for Parole Violation
When considering a serious parole violation, the court is likely to either revoke or extend the parole. But those are not the only options. Since probation is imposed as a less onerous alternative to jail time, revocation of probation can mean a renewed jail sentence.
Faced with a serious parole violation, a judge can:
- Revoke probation and re-impose the original jail sentence.
- Revoke probation and impose a longer jail sentence.
- Impose an extended period of probation.
- Keep the original probation period but add additional terms.
California Probation Rules
It is said that as California law goes, so goes the country. Whether or not this is completely true, it is useful to look at what alcohol restrictions are imposed by California and how DUI probation works in the state.
Generally, California does not condition probation on absolute abstinence. Rather, under Vehicle Code Section 23600, it is illegal for anyone on DUI probation to drive with any measurable amount of alcohol in their system. This is referred to as California’s zero tolerance law. A driver violates this law if their BAC test result is 0.01 percent or more.
Compare this to the limit for commercial drivers of 0.04 percent BAC and the limit for regular drivers of 0.08 percent. When a driver on probation violates this law, their probation can be revoked and they can be sent to jail. A new DUI charge during the probationary period can also result in new criminal charges in addition to the prior offense.
Violating the Terms of Probation in California
Anyone found to be violating a term of their DUI probation in California can be arrested by their probation officer and taken to court. Alternatively, the court can issue a bench warrant to have the driver brought into court to face the charges.
If the driver or their attorney convinces the judge that they did not violate the terms of probation, the entire issue disappears. The driver stays on probation as previously ordered. If the court finds that the driver did violate the probation, it has more options.
For a first time violation, the judge may simply issue a warning and reinstate the old terms and conditions of probation. However, the judge can make the terms stricter or can revoke the probation entirely and order the driver to jail.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.