DUI While on Probation in DeKalb County

If a person is charged with a DUI or any other serious crime while they are on probation, they face the possibility of being taken back before the judge for a hearing to determine whether or not their new arrest constitutes a violation of their probation.

One of the general conditions for probation in Georgia in all cases is that the person placed on probation shall obey the laws of the state.

Typical Conditions of Probation

In the probation cases in Georgia, there are what they call general conditions of probation that apply to everyone on probation, and there are also special conditions of probation, which apply only to that specific case. General conditions usually include complying with the instructions of the probation officer to not use illegal drugs, to avoid intoxication from alcohol, to work faithfully at employment, or to seek employment and to support defendants to the best of their ability, and to not break the laws of the state of Georgia or in the other entity. Special conditions might include paying a fine, performing community service, paying restitution to a victim, or attending a defensive driving course or DUI school. Special conditions are only applicable specifically to a person’s individual case.

When a DUI is a Violation

Committing a DUI is a violation of law and can serve to start the revocation process. It is important to know, however, that an arrest itself is not a conviction. The person cannot have their probation status taken away and be ordered to go back to jail unless it is proven that they committed the new offense. When a probation officer finds out that a probationer has committed or has been arrested for DUI, they will go back to the sentencing judge and ask for a probation warrant to have the person picked up and held until they have a hearing.

At the hearing, in order to keep the person in jail and take and convert their probation status and jail time, it must be proven to the judge that the person committed a new offense. There are essentially three ways that an offense can be proven to the regional sentencing judge.

  1. If the person on probation admits that they committed the offense of DUI
  2. If a witness from the new DUI comes and testifies before the judge in open court; most often the arresting officer of the new case
  3. If the person has pled guilty to the new DUI or has been convicted in a trial for the new DUI

The important point to note is that a no contest plea under Georgia law will not serve as proof of the conviction to provision violation points, and the Georgia Supreme Court addresses this issue in the case Bolden v. State. In that case, Bolden was on probation and had committed the new offense to which she pled no contest. The sentencing judge used that no contest plea as proof that Bolden had committed the new offense. The Georgia Supreme Court disagreed, and instead said that a no contest plea is not an admission of having committed the offense.

Therefore, pleading no contest to a DUI while a person is on probation may in some circumstances prevent their probation from being taken away.

Reason Behind Initial Probation

If someone is on probation for any offense whatsoever in Georgia—be it a traffic offense or any other type of misdemeanor or felony—and while on that probation it is proven that they committed a new offense, then probation can be taken away by the sentencing judge and they can be put back in jail.

It would not necessarily matter that the original offense that probation is for is a DUI, it could be any other charge, including a theft charge or a drug charge. If a person committed a DUI and it is proven while they are on probation, then probation can be taken away and the judge who set the sentencing probation originally can order the defendant to go back to jail, extend the probation for a longer period of time, give them home confinement, or place them in work release facilities.

DUI While on Probation for Serious Charges

If someone is already on probation and the sentencing judge learns that they have been arrested for a DUI while on probation, in most cases that sentencing judge will issue a warrant for the person’s arrest. They will be taken into custody and held in local jail until they are afforded a hearing in front of the sentencing judge. At that hearing, the probation officer will attempt to prove before the judge that the person was committing the offense of DUI.

DUIs are already considered to be a very serious crime in Georgia, even though the offense is only a misdemeanor in most cases. However, judges hold a very dim view of DUI, especially if it occurs when the person is already on court supervision to the probation office. As Judge Robert Mitchum in Gwinnett County frequently tells people, probation means that the person is being sentenced to jail time to be served outside the walls of the jail instead of inside the walls of the jail. This means that judges think that if a person is on probation that person has already been given a break and because they have allowed the person to serve that time outside, the expectation is even higher that they must obey the laws to retain that privilege, and when someone on probation breaks the law, many judges believe that the person has lost the privilege to serve outside for at least a period of time. Committing or getting convicted of a DUI offense while on probation is regarded very seriously.

Beating a DUI Case on Probation

If a person is on probation for an offense, and while on probation they are arrested for DUI, they are taken back in front of the judge. If the judge finds by preponderance of evidence that the person has committed the new offense of DUI, then that judge can take away the individual’s probation status and put the person in jail. However, that same person may go to trial in a different court at a later date on the DUI question and be found not guilty.

Unfortunately, the Georgia Supreme Court has said that being found not guilty on a new charge such as DUI does not necessarily mean that the individual did not do it, it is just that the standard of proof for conviction is proof beyond the reasonable doubt. However, that standard proof for probation violation is only the preponderance of evidence standards, so it is a lower standard of proof.

Impact on a New Case

One of the ways that being on probation can impact a new arrest for any charge is that if the arresting officer in the new case can show that they were aware that the individual was on probation from a prior case, then that shows that the officer knew that the individual had diminished expectations of privacy under the Fourth Amendment.

For example, someone is on probation for DUI and gets pulled over, stopped, and searched, and the officer finds marijuana. In a marijuana case the defense always tries to challenge the search in order to make the police and the prosecutors prove that the search was lawful. To do this, an attorney can show that the person was on probation and the diminished expectation of privacy that the officer was acting under the color of law knowing that the person was on probation and therefore the officer could search without a warrant or consent. 

Unfortunately, a person who was arrested for any new offense, such as DUI, while they are on probation for some prior offense will get more jail time from the original sentencing judge than they would have for just the new offense or just the old offense.