Probation for drunk driving offenses can differ significantly from other types of criminal probation. Unlike the conventional form of probation, within the terms of most all dui terms of probation are compliance requirements seeking to deter the future abuse of alcohol and/or drugs. What follows is a general overview of some of the issues likely to be presented during the course of a probation in Indiana. Should probation be required for a client, my goal is to insure that unreasonable and oppressive requirements are eliminated and that my client be afforded the most convenient road to successful compliance as possible.
Attempts by the legal system at alcohol deterrence can prove costly both financially as well as emotionally for clients not adequately prepared. Over the years I have spent considerable time and effort challenging often unreasonable measures with which to deal with a defendant’s perceived alcohol abuse and/or dependency. From required ingestion of Antibuse, a treatment that compels violent nausea and sickness should alcohol be consumed, to various forms of alcohol monitoring devices both within the home and attached to motor vehicles.
The probationer in drunk driving cases will almost always be prohibited from visiting establishments where the sale of alcohol is the primary product sold and is subject to random testing for alcohol consumption at the discretion of a supervising probation officer. For those employed by establishments providing alcohol to the general public, I have often been able to make allowances for employment related activities.
In almost all alcohol related probation, the individual begins probation with a mandatory alcohol/drug evaluation and ordered to comply with the recommendations based upon the assessment. Unfortunately, at this point neither the judge, prosecutor nor defense attorney have much input as to the evaluation or motivations behind it. In my experience no matter the protestations of the evaluation to the contrary, compliance with the specified recommendations will almost assuredly be mandatory.
Within the probationer’s residence we must challenge judicial orders that may compel the instillation of SCRAM monitoring devices which require daily submission potentially several times daily. These requirements may exist irrespective of the burdens such requirements may have upon an individual’s employment and/or familial obligations.
An attorney must often fight the instillation of ignition interlock devices that may be ordered affixed to an individual’s vehicle as a pre condition to allowing the defendant to resume driving on a restricted basis. Not only is the probationer required to pay for such apparatus, but history indicates the realistic potential of faulty machinery either casting suspicion on the Defendant or at the very least causing time consuming distraction away from productive daily activity.
As stated elsewhere within my site, the consequences for a violation of probation can also be different depending upon how the original sentencing order for the dui conviction was written. For example, one with three hundred sixty five days suspended to probation essentially means that should a probationer be found by a “preponderance of evidence” to have violated the terms of his or her probation in any way, the judge may sentence the probationer to all of the potential incarceration time suspended.
If the dui sentence was termed as a “direct commitment” for one given the alternative of home detention or work release as opposed to jail or prison, there would be no violation of probation hearing at all to contest charges. Merely by virtue of the alternative corrections facility refusing to further supervise the defendant due to failure to abide by any of the facilities rules, a direct transfer of the probationer can be undertaken for the defendant to serve the conclusion of the suspended amount of jail time.
One must know that if confronting a violation of probation accusation within a drunk driving case, the judge may decide the sentencing in any way he or she sees fit. Unlike the specific terms of the original dui agreement that must be either accepted in its entirety or rejected in its entirety by the sentencing judge, within the context of a proven violation of probation, the judge will seek the input of the respective parties from the prosecutor’s office, probation department and defense attorney. However, the ultimate decision on sentencing for the violation will be the judge’s alone.
When and if a probation violation is alleged within a dui case, it is critical that I be contacted right away. By pro active measures I can often coordinate a unified position between the assigned prosecutor and probation case officer to sway the sentencing options for a violation back in our favor. One of the most difficult impediments to the probationer is the attempts at traveling to a sufficient number of treatment sessions that may satisfy good faith attempts at rehabilitation when one’s license has been suspended. Although certainly beneficial and encouraged, an additional suggestion that I have made to many clients in appropriate circumstances is to explore alternative forms of therapy that may prove equally or more productive.
For example, clients who may suffer from anxiety and/or depression can potentially open up new successful avenues of productivity in addressing such a recognition from prescribed medication and theraputic measures with which to deal with these underlyong problems; issues that may be a root cause to the alcohol dependency that gives rise to a violation. In so doing, we may discover that long term mental health benefits can not only be produced, but for the immediate purpose of preventing criminal punishment demonstrate to a sentencing judge that the destructive force of incarceration is not within a client’s nor society’s best interests.