Interviewer: How often do your clients have to undergo probation once their OVI case is resolved? What can be involved in probation?
Dale: Probation is too often involved in an OVI case, in my opinion. Probation’s a trick bag because what the court will give you a minimum sentence. They gave you 180 days, and they suspend 177 days. Those three days, and they could be served in a driving intervention program. There’s 177 days hanging over your head.
Now, you’re on active probation for a year, and all the judge says sometimes is “You must follow all the terms of probation.” You don’t even know what those terms are, if you’ve never been to the Probation Department.
If you have an attorney, he’s going to know what the terms of probation are. However, the Probation Department could say, “No consumption of alcohol within a year, and there will be random testing of your urine.”
So, they’ll call you up, and within 24 hours you’ve got to provide a urine sample. If you drank within the period, and they call you in for a random test and you’re found to have some alcohol, not over the legal limit, just some alcohol in your system. If that occurs, you will have a probation violation, and those 177 days are still there.
Violating Your Probation: Will You Be Arrested?
Interviewer: What will happen if you violate your probation? Can you be arrested?
Dale: Yes, you can be arrested and incarcerated up to 177 days. That’s another reason why I have my clients assessed and attend the treatment program BEFORE the case is over to avoid the probation department.
The Different Probation Levels
Interviewer: What kinds of probation are there? Is it just one level?
Dale: No, there’s what they call reporting probation, and inactive probation. Now, inactive probation is, “You have been sentenced to a year inactive probation. You don’t have to report to anybody, but if you get in trouble again, and it comes to our attention, those 177 days is hanging over your head and you could have a longer jail sentence.”
Reporting probation is active probation. You go to the probation department. You talk to the probation officer. They give you all kinds of things to do. They might say, “I want you to go to AA meetings a week. You’re going to be subject to random urine sampling.” Active probation requires more participation on your part. You may have to maintain a three-year probation period if you are sentenced to active probation.
Interviewer: Three years? When will the probation normally begin?
Dale: As an attorney, it behooves you to know your court and you better know your judge. I know the judges that sentence people for the three-year period.
Interviewer: So, some judges will give three years or two years of probation.
Dale: Yes, active probation.
Interviewer: Will this tend to occur on the first-time OVI convictions, or when someone has multiple convictions?
Dale: I know judges that would do order a three-year probation on a first-time OVI.
The Provisions of Active Probation
Interviewer: What are some of the provisions of active probation, in general?
Dale: Besides having to report, and abstaining from all alcohol and drug use, being subject to random urine samples, attending AA meetings, going to treatment, you will basically have to do whatever the probation department wants to do to you.
Your Attorney Can File to Terminate Your Probation
Now, this is what I do for my clients. Say my client did get two years’ probation. After eight months, or nine months I would file a motion to terminate probation, and for the grounds I would say, “They’ve done wonderfully on probation, there’s been no violations. This is causing them a hardship.” And about 80% of the time, I will obtain that termination.
Interviewer: That is very beneficial for your clients because if they don’t watch out the probation could last for a very long time.
Dale: Yes, you have to look at these cases from beginning to end. With an OVI case, you have to have the big picture in your mind. Also, it doesn’t hurt to know the Probation Department.