DUI probation violation = 30 days jail?
August 21st, 2009
A Washington state DUI conviction carries with it a maximum of five years probation. Most DUI judges, whether in Seattle or elsewhere in Washington, actually do impose five years of DUI probation. Judges have the option of imposing less probation, but rarely will a judge impose less than two years probation on a DUI conviction. "Conditions of probation" are imposed. For a Seattle or Washington state DUI, these conditions can include, for example, total abstinence from alcohol and attendance at alcohol treatment. However, Washington state DUI law sets forth certain mandatory conditions of probation that the judge must impose in every case. These conditions are set forth in Washington's DUI sentencing law, RCW 46.61.5055, which reads in relevant part as follows: "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." Washington state's DUI sentencing law also sets forth the penalty to be imposed upon a violation of these mandatory conditions of probation: "(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. (c) For each incident involving a violation of a mandatory condition of probation imposed under this subsection, the license, permit, or privilege to drive of the person shall be suspended by the court for thirty days or, if such license, permit, or privilege to drive already is suspended, revoked, or denied at the time the finding of probation violation is made, the suspension, revocation, or denial then in effect shall be extended by thirty days. The court shall notify the department of any suspension, revocation, or denial or any extension of a suspension, revocation, or denial imposed under this subsection." Thus, each violation of the mandatory condition of probation results in thirty days of confinement and an additional thirty days of license suspension. Our firm, Fox Bowman Duarte, has successfully argued that the use of the term "confinement" in this part of the statute when the term "imprisonment" is used elsewhere in the DUI sentencing law means that the court has the option of imposing Electronic Home Monitoring rather than jail in the case of a violation of a mandatory condition of DUI probation. However, for this argument to have the best chance to succeed, it is necessary to take certain steps that will impress the judge that jail is not necessary and that Electronic Home Monitoring is appropriate.