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The Role of Probation in Drunk-Driving Sentencing

Attorney David Foley is a former prosecutor with the experience and skills to beat a DUI or negotiate the best possible outcome. Whether it is your first drunk driving arrest or a second or third DUI, we can help. We also work to protect your driver’s license.

Probation is by far the most common sentence for people convicted of drunk driving, especially for first-time offenders. Probation is a criminal sentence served in the community, rather than in jail or prison. Most states limit terms of probation to a maximum of five years. If you are facing a drunk-driving charge, an experienced lawyer at David Foley Law Office in Colorado Springs, Colorado, can assist you with your defense and, if necessary, advocate for a fair sentence.

Why Probation?

Probation is intended both to rehabilitate and to punish less serious offenders in a normal and less expensive environment than jail, in an effort to make them contributing members of society again. As the American Probation and Parole Association (APPA)points out, probation allows the offender to keep working to provide for his or her family, to pay taxes and sometimes to provide restitution or compensation to his or her victim(s). According to APPA, success in probation depends on the probationer’s motivation, how well he or she is assessed and supervised and the resources of the responsible agency.

The Statistical Picture

In 1999, the US Department of Justice’s Bureau of Justice Statistics issued a Special Report that provides interesting details about probation in drunk-driving cases. See DWI Offenders and Correctional Supervision (hereinafter the Special Report).

  • Eighty-nine percent of drunk-driving offenders in the system were on probation, rather than incarcerated.
  • Drunk-driving offenders made up almost 14 percent of all criminals on probation.
  • Two-thirds of those on probation for drunk driving were first-time drunk-driving offenders.
  • It was much more common to get alcohol treatment or to participate in a self-help program while on probation than in jail.

Conditions of Probation

Usually, a person who is on probation must report regularly to a probation officer or court employee for monitoring of his or her behavior. As part of a probationary sentence, the judge imposes at least one condition, but often more than one, according to the Special Report. Almost all probationary sentences contain the condition that fees, fines and court costs be paid. Most sentences require alcohol treatment and almost half require employment or training. The Special Report also lists other common conditions of probation in descending order:

  • Mandatory drug testing
  • Drug treatment
  • Community service
  • Counseling
  • Confinement or monitoring
  • Driving restriction
  • Abstention from alcohol and drugs

Other possible conditions may include alcohol or drug education, restitution to victims or refraining from committing further crimes. Unusual conditions have included fulfilling the requirements for Boy Scout badges for citizenship and traffic safety and displaying a bumper sticker stating “CONVICTED D.U.I.-RESTRICTED LICENSE.” However, similarly controversial conditions of probation have not been allowed in other jurisdictions.

The judge’s discretion about which conditions to impose will depend on the laws of the particular state. Some states require certain conditions in particular circumstances, some require judges to choose among particular conditions and some give judges complete discretion. Of course, a judge may not abuse his or her discretion and the conditions of probation are limited by other laws and by constitutional protections, such as the prohibition against cruel and unusual punishment.

If a person who is on probation fails to meet the conditions of his or her probation, the court after a hearing can modify or revoke the probation, require incarceration, impose additional penalties or any combination thereof. Sometimes the period of incarceration imposed after a failed probation can be longer than would have been originally imposed when probation was ordered instead.

Variations on Probation

Judges and legislatures have become more creative in fashioning probationary sentences. One type of sentence, sometimes called work release, allows the defendant to go to and from work, otherwise leading a restricted life. About a third of drunk-driving probationers serve split sentences, where a period of incarceration is combined with the period of probation. Sometimes the judge sentences the defendant first to a short jail term intended to shock him or her by exposure to the severity of incarceration, followed by probation. This type of sentence is known as “shock probation” and is gaining popularity. “House arrest” is probation served mostly at home while wearing an electronic tracking device.


This article summarizes drunk-driving probation generally. The drunk-driving and probation laws of each state vary, so if you face a drunk-driving charge, a criminal-defense lawyer in Colorado Springs, Colorado, can advise you about your particular situation and your state’s laws.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.