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What is Probation?

Posted by Richard Wagner | Apr 09, 2020

There are two types of probation: formal and informal.

Drunk driving lawyer OC

Probation is the suspension of the imposition or execution of a sentence and the conditional release of a defendant into the community under the direction of a probation officer (“formal” or “supervised” probation) or the court (a “conditional sentence,” “informal probation,” “summary probation,” or “court probation”).

In Los Angeles, when you get put on misdemeanor DUI probation, they use the term “summary probation,” and in Orange County, they use the term “informal probation.”

How Long is DUI Probation?

In felony cases, the court may grant probation for up to 2 years. PC Section 1203.1(a). In misdemeanor cases, the court may grant probation for up to 1 year, unless an offense includes a specific probation length, such as DUI. PC Section 1203a. For a first misdemeanor DUI with no injury, the minimum length of probation is 3 years. 

Certain felonies are not eligible for probation. However, misdemeanors and most felonies are eligible for probation.

How Much Jail Time For DUI Probation Violation?

A court may revoke or modify probation at any time before the term expires. If you fail to comply with the terms and conditions of your probation, the court may find you in violation, revoke your probation, and sentence you up to the maximum amount for the offense for which you are on probation. For example, if you are on probation for a first DUI, and you violate probation, you can be sentenced to up to 6 months in the county jail.

Because the standard of proof in a probation violation hearing is far lower than that at a criminal trial, you may want to waive your right to a probation violation hearing and stipulate to a violation. The court need only be satisfied that there is a preponderance of evidence that the terms of probation have been violated.

Can You Transfer Your Probation To Another State?

I read someone thought there was a hole in the plot of Ozark because Erin was moving back to Illinois from Missouri after she was ordered to do community service. Not true. I can't remember if Erin was actually convicted of a crime. With her mom being a lawyer, she probably got pre-plea diversion. This means the case was postponed until Erin did her community service. Once Erin completes the community service, she or her mom, as her lawyer, goes back to court. If Erin has stayed out of trouble, the case gets dismissed once proof of completion of the community service is filed with the court.

If, on the other hand, Erin pleaded guilty or no contest and was placed on probation, she was most likely placed on informal (summary) probation. This means there is no probation officer. She is not supervised by the probation department. No check-ins, etc. Erin or anyone else can get their community service transferred to another state. If you are on formal probation, the process is more of a headache. Interstate probation supervision is governed by the Interstate Compact for Adult Offender Supervision. Erin would have to sign a waiver of extradition and an agreement to accept whatever differences in supervision may exist between the two states. However, if she were on informal probation, it would be relatively simple.

It depends on the court, but some judges will accept different types of community service. Erin may not even have to go through court. For example, a recently retired judge here in Newport Beach allowed community service to be done informally through a church or local charity. He did not require you to sign up through the court and pay the processing fee. You just did the community service and brought proof of the hours on letterhead.

About the Author

Richard Wagner

Attorney Profile Defense Lawyer Richard Wagner upholds and defends freedoms and liberties enshrined in our United States and California Constitutions.  “Richard was able to achieve an even better outcome for my case than what we initially thought was possible. I couldn't be more grateful to h...