DWI Arrest as a Probation Violation

Probation Goals and System

Probation's Benefits. For many misdemeanor convictions, society rightly favors a sentence of probation instead of incarceration. Incarceration is debilitating and expensive. Probation is neither. Probation is also a second chance, and America is much about second chances. Collectively, we believe in justice but with mercy. Probation accomplishes both. Especially, we don't want to turn misdemeanor offenders into criminals whom a harsh justice system has hardened.

Probation's Limits. But probation also rightly comes with conditions. Probation isn't a free pass. Probation is a jail sentence, however, the jail sentence is suspended and probated as long as all probationary conditions are met. In other words, it is a pass with terms and conditions that the probationer must meet to avoid serving the jail time, paying the fine, or otherwise meeting the full sentence for the conviction. Common probation conditions include maintaining employment or enrollment in school, participating in counseling, submitting to drug testing, remaining in the state, abiding by a curfew, and not possessing firearms. That's why the criminal justice system assigns probationers to a local probation or parole officer who regularly meets with the probationer to ensure the probationer's full satisfaction of those terms and conditions.

When Worlds Collide. Given probation's benefits, parole or probation officers in Texas and other states find themselves monitoring lots and lots of probationers. For the most part, those probationers are getting on with their lives while hoping and expecting that the probation, perhaps annoying more than burdensome, will soon be over. But as those probationers get on with their lives, some of them are drinking and driving. And when an officer arrests a probationer on a DWI charge, the probationer's legal obligations and personal interests collide.

The Impact of a DWI Charge on Probation

A Twofold Problem. A DWI arrest and charge present a misdemeanor probationer with a twofold problem. The first problem is that DWI is a crime, when the conditions of probation routinely prohibit committing crimes. The second problem is that DWI involves intoxication, when the conditions of probation routinely prohibit alcohol and drug abuse. A DWI charge is thus something for a probationer to take seriously.

More-Common Probation Violations. Other probation violations are more common than a DWI charge. Common probation violations include missing a court date, missing meetings with the probation officer, failing to timely pay a fine or restitution, failing to fulfill community service hours, or losing a job. These more common violations illustrate the seriousness of a DWI charge. Committing a DWI isn't equivalent to murder, arson, rape, or other specific-intent crimes of violence or dishonesty, but DWI is still a crime and one that involves intoxication.

Parolee Impacts. The impact of a DWI charge on a parolee can be every bit as serious as the impact on a probationer. Parole differs from probation in that parole involves the Texas Board of Pardons and Paroles' early release of a prisoner who has already served some part of the prison sentence. Probation avoids jail or prison. Parole shortens imprisonment. Yet both probation and parole involve conditions, often the very same conditions. And the local parole or probation officer monitors both probationers and parolees. Neither a probationer nor a parolee wants a DWI charge.

Outcomes of DWI Probation Violations

Influential Factors. Generally, the consequence of a probation violation is to give the probation officer grounds to seek, and the court grounds to impose, the original sentence that probation had so far avoided. In theory, a probation violation can trigger a procedure that lands the probationer right back in jail where the probationer would have been serving but for the probation. Yet what actually happens when a probationer gets charged with DWI depends on several factors. Those factors can include:

• The seriousness of the underlying conviction that led to probation;
• The terms and conditions of the order for probation;
• The probationer's record of compliance with other terms and conditions;
• The probationer's likelihood of future compliance with only a warning;
• The nature, seriousness, and circumstances of the DWI charge;
• The DWI charge's ultimate disposition; and
• The probation officer's willingness to treat the violation administratively.

A Range of Outcomes. The possible outcomes of a DWI probation violation are thus much broader than a strict return to court to impose the original sentence of fines, incarceration, or both, without the further chance for probation. Aggressive, diplomatic, and sensitive advocacy from Houston DWI Lawyer of the Year Doug Murphy may win the DWI violator a reprieve. Probation violations can, in the best case, lead to little change at all in the probationer's circumstances or, in the worst case, to a harsh resentencing on the underlying conviction. Any of these outcomes are possible:

• The probation officer's writeup of the matter for future consideration;
• The probation officer's oral warning or written reprimand;
• New terms, conditions, and restrictions of probation;
• Extending the probation for an additional time;
• Remedial counseling or intervention, or community service;
• Holding the probationer in contempt and jailing for up to thirty days;
• Court-imposed fines or jail terms less than originally contemplated;
• Court-imposed fines or jail terms as great as originally contemplated.

A Probationer's Constitutional Rights

Court Hearing. A probationer's constitutional rights dictate the procedure that a probation officer and court must follow to revoke probation and reimpose the original sentence on the probationer because of a DWI charge. Probation officers cannot send the probationer to jail on their own. The Supreme Court's Gagnon v. Scarpelli case held that doing so violates the probationer's due process rights. The probation officer must instead file a motion to revoke probation, giving the probationer fair notice of the alleged probation violations, following which the court must give the probationer a hearing. Significantly, the probationer also has a right to the probationer's own lawyer representative at the hearing, which means the right to retain Board Certified DWI attorney Doug Murphy.

Administrative Alternative. Not every probation violation leads to a motion to revoke probation, though. Indeed, probation officers necessarily handle many lesser probation violations on their own, administratively, rather than by taking the time and trouble to go to court. Timely and sensitive advocacy from Doug Murphy with the probation officer may succeed in convincing the officer to choose an administrative rather than court proceeding, in effect rescuing the probation. The strategy is typically to avoid court at all costs. Attorney Murphy can help the DWI probation violator make good on that strategy.

What to Do About a DWI Probation Violation

Beat the DWI Charge. The prime thing that a probationer charged with DWI can do to rescue the probation is to retain DWI defense attorney Doug Murphy to beat the DWI charge. Beating the DWI charge does not guarantee that the probation officer won't seek probation revocation or impose other probation terms and conditions. Courts have the constitutional authority to decide probation violations on the lower preponderance-of-the-evidence proof burden rather than beyond a reasonable doubt, which would apply in a trial of the underlying criminal charge. But beating the DWI charge may go a long way to show that the DWI crime did not happen, even on a preponderance of the evidence.

Rescue the Probation. A probation revocation hearing gives Board Certified DWI lawyer Doug Murphy an opportunity not just to contest the DWI charge but also to advocate that the court should prefer to continue the probation rather than to revoke it and incarcerate the defendant on the original conviction and sentence. Courts may find several reasons to allow a probationer to proceed without jail time, despite some evidence that the probationer may have committed a DWI crime. Continued employment, critical care for dependent family members, valuable volunteer service to charitable organizations, and continued participation in rehabilitative programs and therapies may all justify preserving probation over incarcerating the probation violator.

Contact Our Harris County DWI Defense Lawyer for Probation Violations

A probation violation may seem like a small matter. It's not, especially when the violation is a DWI charge. Probationers are far better to treat a DWI probation violation as if once again aggressively defending the original charge than to treat the violation as a harmless administrative matter. The probationer facing a DWI violation needs an experienced DWI lawyer, not just any lawyer who is generally familiar with criminal defense. Only a skilled,experienced DWI attorney will know how to both beat the DWI charge and show that the DWI charge should not revoke the probation.

The best approach to a DWI probation violation is to promptly retain Board Certified DWI defense attorney Doug Murphy. Attorney Murphy has the premier standing as a nationally recognized DWI lawyer to timely and sensitively advocate with the probation officer. Attorney Murphy can also help the probationer prepare for a court hearing on a motion to revoke probation, with the goal of rescuing the probation to avoid serving the original sentence. You can rely on Houston DWI Lawyer of the Year Doug Murphy both to rescue probation from a DWI violation and to beat the DWI charge. Attorney Murphy is one of only two Texas lawyers holding both DWI Board Certification and Criminal Law BoardCertification. Contact Murphy & McKinney Law Firm, P.C. online or at 713-229-8333 to discuss your case today.