3 Things You Absolutely Cannot Do While on Probation for DUI
Does being on probation for DUI allow you to avoid jail time? Or just delay it?
If you are convicted of DUI, you face:
- Confinement in jail for up to 6 months,[i]
- A fine of up to $1,000,[ii]
- The suspension of your driver’s license for 6 months,[iii] and
- (Applicable only if your DUI occurred in the counties of Alameda, Los Angeles, Sacramento, or Tulare) Mandatory installation of an interlock ignition device in any vehicle you drive for 5 months.[iv]
Or you could be sentenced to probation.[v]
Probation means that you don’t have to go to jail.[vi] But, in exchange, you must adhere to certain conditions for a period of 3 to 5 years.[vii] If you fail to follow these conditions (also known as your “terms of probation”), then your probation can be terminated and you can be sent to jail — for up to six months[viii] — instead. Receiving probation does not mean that you’ve avoided jail time; it means that you have a jail sentence hanging over your head for the next 3 to 5 years.
That’s what’s at stake when you’re on probation for DUI — if you mess up, you can be put in jail.
So, what are the conditions you’ll have to comply with for the next 3 to 5 years?
These conditions are imposed whether you’re sent to jail or sentenced to probation:
- A fine of up to $1,000,[ix]
- The suspension of your driver’s license for 6 months,[x] and
- (Applicable only if your DUI occurred in the counties of Alameda, Los Angeles, Sacramento, or Tulare) Mandatory installation of an interlock ignition device in any vehicle you drive for 5 months.[xi]
These additional conditions apply only if you’re sentenced to probation:
- You must attend a 3-month DUI class,[xii]
- You must obey all laws,[xiii] and
- You cannot drive with any alcohol in your system.[xiv]
Sounds simple enough, right? Let’s take a closer look.
1. You Cannot Neglect Your DUI Class
Once on probation, you are obligated to complete a 3-month DUI class.[xv] (The class will last for 9 months if your blood alcohol level was .20 or higher.[xvi]) The class consists of interviews with a licensed instructor, educational classes, group sessions, and Alcoholics Anonymous meetings.[xvii]
Not only must you enroll in the class, you must provide the Court with proof that you actually completed it. If you fail to enroll, participate, or complete the DUI class, your probation will be terminated and you can be sent to jail for up to six months.[xviii]
There’s another reason you should complete the class: you can’t get your license back until you do.[xix] You cannot drive again until you follow through with this class.
It takes commitment to complete a DUI class. But the reward — restoring your privilege to drive, at minimum[xx] — is well worth the effort.
2. You Cannot Drive for 6 Months
Once you are sentenced to probation, your driver’s license will be suspended for 6 months.[xxi] This means that for six straight months you cannot drive at all — not for work, not for class, not even to take your kids to school. If you drive while your license is suspended, you will be committing a misdemeanor that is punishable by up to 6 months in jail, up to a $1,000 fine, or both jail time and the fine.[xxii] This penalty is in addition to the penalty you suffered for your DUI.
Even after the 6-month suspension period is over, you can still be convicted of driving on a suspended license if you fail to restore your license in the manner prescribed by the DMV. To restore your license, you must complete your DUI class[xxiii] and have your vehicle insured[xxiv].
If you drive on a suspended license, you will be committing a misdemeanor[.]
Car insurance may be harder to maintain since a DUI conviction will significantly increase your insurance premium.[xxv] And if you choose to drive without car insurance, you are at risk of being convicted of Vehicle Code section 16028, driving without vehicle insurance, which is an infraction.[xxvi]
An additional condition of your DUI probation is that you must not commit any crimes.[xxvii] Driving on a suspended license or without insurance, then, are not only additional crimes, but are also grounds for terminating your probation.
3. You Cannot Refuse the PAS Test
Upon receiving probation, your driver’s license will be suspended for 6 months.[xxviii] After the 6 months is over, you can restore your license by showing the DMV proof that your vehicle is insured and that you have completed your DUI class.[xxix]
So, does this mean, for the remaining 2½ to 4½ years you have left on probation,[xxx] that all the privileges associated with driving are restored? No.
The preliminary alcohol screening (or “PAS” test) is one tool that police officers use to determine if a driver is under the influence of alcohol. The PAS test is administered via a handheld device that a driver blows into. Based on the breath sample, the PAS device can estimate the amount of alcohol in a driver’s blood.
Even if a driver does not exhibit physical symptoms of intoxication (like slurred speech or the smell of alcohol on his breath), the PAS device can alert officers that the driver has been drinking. This is especially true if the PAS device reveals a blood alcohol level estimate of .07 or higher.
But, here’s the thing: drivers who are 21 years of age or older can refuse to take this test.[xxxi] If there is other evidence suggesting that a driver is intoxicated — an erratic driving pattern, admissions to drinking before driving, physical symptoms of intoxication — then refusing the PAS test will not unravel a DUI investigation. But in borderline cases, where a driver does not appear to be impaired by alcohol, the ability to refuse the PAS test can make all the difference.
However, if you are on probation for DUI, you cannot refuse the PAS test; you must take it when an officer instructs you to do so.[xxxii]
Not only that, but your probation can be revoked if you have any measurable amount of alcohol in your blood.[xxxiii]
If you drive with a blood alcohol level of .01, your probation can be revoked — even if you do not exhibit any signs of impairment. [xxxiv]
If your blood alcohol level reaches .04, then the judge must revoke your probation and cannot reinstate it without imposing at least 2 days’ jail as an additional condition of probation.[xxxv] For most adults, a blood alcohol level of .04 is reached after consuming just 1 drink.[xxxvi]
And if your blood alcohol level is .08 or higher, you can expect to be arrested and prosecuted for DUI. This time, however, the potential penalties will be harsher since you already have a prior conviction for DUI.[xxxvii]
Remember: even if you can restore your license, you will be at greater risk of probation revocation for the remaining 2½ to 4½ years you have left on probation.[xxxviii]
Conclusion
Probation allows you to carry out your rehabilitation without the disruptive hardship of jail. But it also demands more from you: for the next 3 to 5 years, you must commit to resisting the temptation to drive until you’ve properly restored your license, to disciplining yourself to refrain from indulging even 1 drink before driving, and to completing your DUI class. Whether probation is a benefit or a burden is, truly, up to you.
[i] Vehicle Code §23536(a).
[ii] Vehicle Code §23536(a).
[iii] Vehicle Code §§23536(c), 13352(a)(1).
[iv] Vehicle Code §23700(a), (a)(7)(A)(i), Note: This requirement will be repealed on January 1, 2019, unless new legislation extending it is passed. Vehicle Code §23702.
[v] Vehicle Code §23538.
[vi] The Court can impose 2 days in jail as condition of probation. However, the imposition of this sentence is discretionary, not mandatory. Vehicle Code §23538(a)(1).
[vii] Vehicle Code §23600(b)(1).
[viii] Vehicle Code §§23536(a), 23602; Penal Code §1203.2(c).
[ix] Vehicle Code §23538(a)(1).
[x] Vehicle Code §§23538(a)(2), 13352(a)(1).
[xi] Vehicle Code §23700(a), (a)(7)(A)(i), Note: This requirement will be repealed on January 1, 2019, unless new legislation extending it is passed. Vehicle Code §23702.
[xii] Vehicle Code §23538(b).
[xiii] Vehicle Code §23600(b)(4).
[xiv] Vehicle Code §23154(a).
[xv] Vehicle Code §23538(b)(1).
[xvi] Vehicle Code §23538(b)(2).
[xvii] For an overview of the 3-month DUI class (also known as AB-341), click here.
[xviii] Vehicle Code §§23538(c)(1), 23536(a)(1), 23602; Penal Code §§1203.2(c).
[xix] Vehicle Code §§23538(b)(3), 13352(a)(1).
[xx] Note: If a person is sentenced to jail instead of probation, the DUI class is not required. See Vehicle Code §23536. Nevertheless, a driver must still complete a DUI class — even if not required to do so by the Court — in order to have his privilege to drive reinstated by the DMV. See Vehicle Code §13352(a)(1).
[xxi] Vehicle Code §§23538(a)(2), 13352(a)(1).
[xxii] Vehicle Code §14601.2(a), (d)(1). Note: Driving while unlicensed is a different crime. Vehicle Code §12500. It can be punished as a misdemeanor (up to 6 months in jail, up to a $1,000 fine, or both), or an infraction. Vehicle Code §§12500(a), 40000.11(b); Penal Code §§19, 19.8.
[xxiii] Vehicle Code §§23538(b)(1), 13352(a)(1).
[xxiv] Vehicle Code §13352(a)(1).
[xxv] Finding a willing insurance may be difficult, but it is not impossible. Eventually, you will be able to find an insurance company because California requires that all motorists carry car insurance. Vehicle Code §16020.
[xxvi] Vehicle Code §§16029(a), 16028(a), 16000.7
[xxvii] Vehicle Code §23600(b)(4).
[xxviii] Vehicle Code §§23538(a)(2), 13352(a)(1).
[xxix] Vehicle Code §13352(a)(1).
[xxx] Vehicle Code §23600(b)(1).
[xxxi] Vehicle Code §23612(i). Note: A driver may never refuse the post-arrest, chemical test. Both drivers who are on probation and drivers who are not on probation are subject to this restriction. Vehicle Code §§23600(b)(3), 23612(a)(1)(A), (D).
[xxxii] Vehicle Code §23154(a), (c). Note that, before administering the PAS test, the officer must have lawfully detained a driver on suspicion of drinking and driving.
[xxxiii] Vehicle Code §23154(a).
[xxxiv] Vehicle Code §23602; Penal Code §§ 1203.2(c), (e).
[xxxv] Vehicle Code §§23600(d), 23602; Penal Code §§ 1203.2(c), (e).
[xxxvi] See https://www.dmv.ca.gov/portal/dmv/detail/pubs/hdbk/actions_drink.
[xxxvii] See Vehicle Code §§13353(a)(2), (a)(3); 23577(a)(2)-(5).
[xxxviii] Vehicle Code §23600(b)(1).
Attorney Michael J. Ocampo is a former deputy district attorney. He focuses his practice exclusively on criminal law so that he can help those accused of a crime — often ordinary, everyday people — ensure that their rights are honored and that they receive a fair opportunity to be heard.
