How Probation Works for DUIs

By San Diego Attorney on April 28, 2021

If you’ve been arrested for a DUI, your biggest concern is staying out of jail. We have good news: California courts can invoke other, and oftentimes lighter, punishments for defendants convicted of driving under the influence. One option that defendants tend to overlook is probation, which may allow them to avoid jail time altogether. How can you qualify? Let’s find out.

Probation vs. Jail Time

It is important to know that probation is different from parole. With parole, a defendant must first serve time in jail or prison before he can be offered early release. Parole is designed by a parole board that will look over the defendant’s criminal record and behavior while in prison before they decide whether to release him or not.

Probation, on the other hand, is decided by a judge during a sentencing hearing, after a defendant has already been convicted. Probation will allow the defendant to avoid jail time (or the majority of his jail time) while fulfilling certain court requirements. If the defendant was convicted of a DUI, he may have to attend substance abuse treatment and DUI classes, and check in with either a probation officer or a judge regarding his behavior to complete the terms of his probation.

There are two types of probation in California:

• Informal/Summary Probation: Informal probation is only available for misdemeanor crimes. Instead of going to jail, a defendant may have to complete community service, attend substance abuse treatment, pay restitution, or meet with a counselor. With informal probation, a defendant must meet with a judge on a regular basis to discuss the nature of his or her probation. Since January 1, 2021, informal probation can only last up to one year.
• Formal Probation: Formal probation applies to felony cases and has a much stricter structure. While under formal probation, a defendant will need to regularly check in with a probation officer, who will watch him or her closely for any violations. A defendant may also have to submit drug and alcohol tests, avoid contacting former criminal associates, pay restitution, perform community service, get counseling, and serve under house arrest. Formal probation is typically two years for a non-violent crime.

If a defendant violates the terms of probation, he or she may be sent to jail and face other charges. Violating probation typically means committing another crime, such as racking up another DUI.

Is Probation an Option After a DUI?

Most first-time offenders are eligible for informal probation after a DUI, especially if they pursue a wet reckless plea. This means, at maximum, you will have to meet with a judge for up to one year after your arrest instead of going to jail. You may still face all the other penalties for a DUI (such as the loss of your driver’s license), but you can avoid time behind bars. Once you have completed probation, your attorney can also begin the process of getting your criminal record expunged.

If you are charged with a felony DUI, probation is still an option, though it depends on how serious your charges are. Felony DUI charges either occur after four or more arrests for DUI or in cases involving an injury or death to another person. Probation is not an option for crimes involving injuries, meaning you may only get probation for a non-violent DUI.

All of these options should be discussed with a skilled San Diego criminal defense lawyer who has in-depth knowledge of sentencing guidelines. At jD LAW, our lead attorney has spent more than 30 years fighting DUI charges on behalf of his clients. He understands the scenarios where judges will consider probation and how to get clients a fair deal. To discuss your case in a free consultation, call us at (760) 630-2000.