DUI Probation Explained by Jon Scott Fox   April 2010

If a person is convicted of DUI in Washington State, typically the sentence is "suspended" for five years. Recall that the maximum sentence for a misdemeanor DUI in Washington State is one year. A suspended sentence means that some of the jail time is "suspended," such that the judge may impose the jail time if there are violations of probation. Typically, for a first offense DUI in Washington State, the jail time that would actually be imposed at the time of sentencing is either one or two days, depending upon certain circumstances. The remaining jail time, 363 or 364 days, is what is "suspended." The way to think of it is that the suspended jail time is hanging over the head of the individual on probation. A violation of probation permits the judge to impose some or all of this remaining suspended jail time.

DUI probation may either be active or "records check." During active probation, an individual reports to a probation officer as required by the probation officer. In King County, active probation usually results in monthly visits to the probation officer. In addition, the probationer is required to report any new violations and in some jurisdictions, the probation officer will administer a random drug or alcohol test or even a polygraph test. The probation officer also monitors compliance with any alcohol treatment requirements imposed by the judge. If the probation officer believes that the probationer it is not complying with the exact requirements of the court sentence, the probation officer may set a court hearing to review compliance and to request that the judge impose sanctions. Sanctions for violation of probation can include service on a community "work crew" run by the local county or jail time.

In practice, "active" probation usually extends no longer than two years. Then, the probation changes to "records check" where the court clerk will check the records to determine if there are any new criminal law violations. However, jurisdictions vary and in some jurisdictions, active probation may run the entire five years that is permitted under the applicable DUI statutes.

Proper preparation of a DUI defense will always include taking steps to minimize the impact of probation. One of the major reasons that active probation is imposed is to verify that the individual has obtained an alcohol evaluation and is complying with all required follow-up. There is no reason why this cannot be accomplished during the pre trial preparation phase of representation. It is usually very good advice to obtain an alcohol evaluation and complete the required follow-up, if possible, well before the trial date in a DUI case.

One relatively unknown, but quite important fact, is that certain violations of DUI probation result in mandatory minimum sentences that exceed the mandatory minimum sentence for the DUI itself. For instance, in a first offense DUI case where the mandatory minimum is one day in jail, a violation of one of the stated "statutory" probation conditions will result in a mandatory period of confinement for 30 days. The excerpt from the statute, RCW 46.61.5055, is set forth below.

(11)(a) In addition to any nonsuspendable and nondeferrable jail sentence required by this section, whenever the court imposes less than one year in jail, the court shall also suspend but shall not defer a period of confinement for a period not exceeding five years. The court shall impose conditions of probation that include: (i) Not driving a motor vehicle within this state without a valid license to drive and proof of financial responsibility for the future; (ii) not driving a motor vehicle within this state while having an alcohol concentration of 0.08 or more within two hours after driving; and (iii) not refusing to submit to a test of his or her breath or blood to determine alcohol concentration upon request of a law enforcement officer who has reasonable grounds to believe the person was driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor. The court may impose conditions of probation that include nonrepetition, installation of an ignition interlock device on the probationer's motor vehicle, alcohol or drug treatment, supervised probation, or other conditions that may be appropriate. The sentence may be imposed in whole or in part upon violation of a condition of probation during the suspension period.

(b) For each violation of mandatory conditions of probation under (a)(i), (ii), or (iii) of this subsection, the court shall order the convicted person to be confined for thirty days, which shall not be suspended or deferred.

Throughout Washington State, in your writer's experience, courts have different interpretations regarding the language "the court shall order the convicted person to be confined for 30 days." Many courts interpret this section to give discretion to the judge to either impose jail time or some other form of confinement such as electronic home detention or participation at an inpatient treatment facility. This interpretation is based upon a statutory analysis because the other DUI statutes that impose penalties mention the term "jail" when referencing penalties, but this section mentions only "confinement." Either way, a violation of any of the above stated conditions will result in a penalty of 30 days of confinement to be served either as actual jail time or some other option, depending upon the judge's interpretation of the law.

It is important to obtain the best representation you can for a pending DUI charge. Doing so may avoid probation altogether. However, if a violation of probation is alleged, it is critically important to be represented by an experienced DUI defense attorney because in almost every probation violation hearing, the imposition of a serious amount of jail time is an option for the trial judge.