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Winning the Battle but Losing the War.

When faced with defending a client charged with a second DUI in violation of his or her conditions of probation on an existing DUI, it is important to bear in mind that it is possible to win the battle but lose the war. What I mean by this, is that even if the case proceeds to trial and the defendant wins, a Judge may still find the defendant in violation of probation and sentence him or her to jail time.
It is a condition of probation on any DUI case that the defendant should not drink any measurable amount of alcohol and drive. This means that even one drink, or a .01% blood alcohol level can land the defendant in trouble. The judge has discretion to impose up to the maximum penalty for the offense which is six months in county jail on a first offense, or one year on a second or third offense.
This means that a defendant can be found not guilty of driving under the influence of alcohol and not guilty of driving with a .08% blood or breath alcohol, but still be found to have violated his or her terms and conditions of probation by driving with a measurable amount of alcohol, less than a .08%.
Politics comes into this, particularly with a DUI in Orange County. If the case is conducted in an adversarial manner, and the judge is upset with the defense attorney or the defendant, the judge is likely to vent his or her anger by coming down heavily on the defendant for the probation violation. If the case is tried in a professional manner with genuine issues, a reasonable judge would decide not to take any action on the probation violation and simply re-instate the defendant on the original terms of probation without any further penalty.
Often on a second offense in violation of probation on a first offense, it is better to approach the case with an acceptance of responsibility and negotiate with the court for the least amount of penalties instead of going to trial.
If you have any questions concerning penalties for a DUI probation violation, or how to defend a second DUI offense, please call Gold & Witham for a free consultation.