In the realm of DUI convictions, one crucial aspect of the legal process is probation. Today, we have the opportunity to gain insights from Atty. Brian Douglas Sloan, an experienced legal professional in Phoenix, AZ, who will shed light on the different types of probation sentences for individuals convicted of DUI offenses.
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 DUIs, there are only certain courts that may require probation. With Aggravated DUIs, I have never had a client NOT receive probation. Probation is in place to ensure that the person is completing the terms of their sentence, prior to and after serving a jail or prison term, which is required on all DUI convictions.
Probation Entails a Monthly Service Fee
There’s only one type of Aggravated DUI conviction that does not require any prison time, but does require at least 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 Class 6 Felony. Still, you can have a sentence as low as one day in jail, but as high as two years in prison. Being on DUI / DWI probation also ensures that the court gets paid its money and that the person does their required alcohol or substance abuse counseling.
If there is an Aggravated DUI conviction, the minimum amount of fines and fees, comes out to about $4,500. The court wants to ensure that the person will continue paying off those fines and fees, and, for that reason, Felony Probation tends to be for several years, with the maximum being ten years. Normally the fines and fees will be required to be fully paid before probation can be terminated, and since Felony Probation often comes with monthly probation fees, the failure to pay off fines and fees in a timely manner leads to more fees being added to the total. Probation Service Fees are usually around $65-a-month probation, so a person is usually in a position where they are paying a monthly fee to be allowed to continue to pay a monthly fee, when they have to set up a payment plan for their fines and fees, if they can’t be paid off in full up front.
How Often Do Probation Officers Visit Your Home?
Probation officers in Arizona may conduct home visits as part of their supervisory duties for individuals on probation. The frequency of these home visits can vary depending on the specific terms and conditions of the probation set by the court. Also, DUI probation can consist of different levels of probation.
I don’t believe I’ve ever had any client have Intensive Probation, which would be the highest form of probation possible for Aggravated DUI cases. Someone convicted of a DUI would either Standard, also known as Supervised Probation, or would be placed on Unsupervised Probation with compliance monitoring. Or they will have Unsupervised Probation.
What Does Supervised Probation Mean?
The most common form of Probation when convicted of a Felony Aggravated DUI is Supervised Probation, where they must 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, they have the authority to arrest you right there and take you to jail.
What Does Unsupervised Probation Mean?
Unsupervised Probation in Arizona grants individuals a bit more independence compared to Supervised Probation. It means that a probation officer does not directly supervise individuals and the probationer has more freedom to fulfill their probation requirements.
However, it does not release them from their obligations. They are still responsible for meeting all the terms and conditions set by the court, attending counseling sessions, paying fines and fees, and avoiding any further criminal activities.
Can You Drink on Unsupervised Probation
While on Unsupervised Probation, it’s important to note that consuming alcohol is generally prohibited in the Arizona probation rules. Any person placed on probation will have their specific terms of probation provided to them, in writing. Sometimes that term of probation may be to not consume alcohol at all. Sometimes that term of probation may be to not drink alcohol to excess.
Even without direct supervision from a Probation Officer, individuals must adhere to the terms and conditions set by the court, which often includes abstaining from alcohol. Violating this restriction can result in serious consequences, such as probation violations and potential penalties, which can include more jail or prison time, including up to the maximum allowed under Arizona law.
For the best DUI Defense Representation in Phoenix, AZ, contact Attorney Brian D. Sloan.
Interviewer: Probation officers come to your house?
Brian: Probation will normally include the following: You’re not allowed to drive without a valid license, 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 will have to do it, and the judge will likely side with the Probation Office if they report a violation of your terms of probation.
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 not required as part of their 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, the judge will say it’s appropriate as well.
You Can Qualify for an Early Release from Probation
A person can get off probation early. With most Felony probation terms, people can be released from probation after serving half of their time. So with a three-year probation term, after a year and a half has passed, if there have been few if any issues, that person may be eligible to get off of probation early, as long as they have completed everything required of them.
Aggravated DUIs are different, however, and law only allows someone to get off probation on an Aggravated DUI after serving two-thirds of their probation at a minimum.
As time passes, it is possible to get that supervised probation reduced to Unsupervised or Unsupervised Probation with Compliance Monitoring. Or it may be possible that Supervised Probation becomes easier. Instead of checking in every month, a probationer may only be required to check in every three months. The Probation Department just wans to ensure that people on probation are not committing new offenses and doing everything they are supposed to be doing.
How Much Jail or Prison Time for a DUI Probation Violation
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 committing a new offense and if you are convicted of a new Felony offense, you have to get no less than the presumptive sentence on the new offense, which means you cannot get a mitigated sentence, and your only options are either the presumptive sentence, or an aggravated sentence.
On top of that, whatever DUI probation violation sentencing in AZ you get for violating your probation has to be consecutive. This can, in theory, mean that if you were on probation for an Aggravated DUI, and you commit another Aggravated DUI, upon conviction of this new Aggravated DUI, you have to get 4 1/2 years to 7 1/2 years, PLUS either being reinstated to probation or an additional 1 to 3.75 years in prison on the probation violation. So it could be 4 1/2 to 7 1/2 + 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 my Legal Services Agreement. Hopefully, making it not part of the contract encourages clients 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, but it is important that people on probation take probation very seriously, as the potential for extremely serious consequences is always close by.
Hopefully, my advice in talking to them throughout the initial case has convinced them how important it is to do well on probation and do everything required of them. Suppose there’s a probation violation, for example, on a Class 4 Aggravated DUI; now, if someone got the minimum sentence on a Class 4 DUI, which is four months in the Department of Corrections plus probation, I strongly advise my clients that a probation violation will get them 1 to 3.75 years in prison more. So, they serve 4 months in prison, get out, get their life moving again in the right direction, then they have to deal with the potential of going back into prison, this time for a lot longer, if they don’t fulfill any of the requirements of probation.
Do not violate your probation. If you violate probation, you are facing a lot of prison time. You are doing or had to do four months because of this conviction, and that’s not fun, you won’t like it, but you can overcome it. You will get out of prison, move on with your life, and do what’s required of you. However, if you were to then violation probation, you face the potential of years away from your family. You do not want to have to deal with that. And some people can’t deal with that, and know that they won’t be able to complete the terms of probation. Some people opt to not do probation, and instead to the years in prison up front. However, if if someone were to decide to just do the entire prison term, they would still likely be placed on a form of parole, which would only last a few months, rather than a few years.
Fortunately, I have yet to have a client return 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.
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 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 take advantage of that. But a lot of the probation officers I have spoken to over the years have been very nice people, who are trying to do a difficult and stressful job, and want their probationers to succeed.
Unfortunately, I think the three biggest issue with a probation violation tend to be failing to check in as required, failing to pay off the fines and fees, and driving without a valid license.
If you are convicted of an Aggravated DUI, it used to be that your license was revoked for three years. Now it’s more likely that it’ll be revoked for one 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 would be considered a violation of probation, and they are looking at 1 to 3.75 years in prison because they got tired of taking a bus, calling a cab, or walking.
Interviewer: Are you ever hired for probation violation cases on your 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, 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 will likely not call me. I don’t handle burglaries. All I do are the DUI cases. Chances are, if they 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 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 can control?
Brian: The amount of time on probation is up to the judge. It is not negotiated between the Posecutor and the Defense Attorney. The same goes for probation in Misdemeanor Courts, if the case happens to be in one of the courts that mandates probation.
In Felony courts, it will happen only to ensure that the person pays off their fines and fees. It is an argument to the judge. It is very rare for someone to get the maximum of 10 years Supervised Probation, and the average Felony Aggravated DUI case will usually include three years of probation. 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.
In very rare circumstances, 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, and is not recommended unless there are exceptional circumstances, but, technically, that does comply with the terms of the plea agreement.
What is incredibly important to consider when requesting the amount of probation from the judge is that you don’t want to set up your client for failure. Sometimes that means asking for a few years of probation. Sometimes you are not doing your client service if you ask for six months of probation because while it sounds nice, you are setting them up to fail if the terms of their Sentence cannot be completed in that short amount of time.
Interviewer: That is an interesting perspective.