DUI Probation and Deferred Sentencing

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Most states have adopted provisions for career criminals; this type of provision is commonly referred to as the third strike rule. The basic idea of the rule is that if a person has already been to the state penitentiary twice before, they should be committed for a much longer period of time for their third felony.

To be considered a habitual offender, you generally have to receive a sentence other than probation or deferred sentencing. Being granted deferred sentencing means that if the defendant complies with a period of probation, his or her charge will be dismissed without a conviction being entered.

Oftentimes, when people enter the criminal justice system and are considering plea bargain options for DUI and DWI cases, they assume that the same principles will apply.

The common misconception is that with a deferred sentencing for a DUI case, the penalties will be lessened. Unfortunately, this is not the case as most of the usual rules for enhancements and penalties do not apply to DUI probation and deferred sentencing.

What is the difference between probation and deferred sentence?

When considering DUI plea options, you need to understand the difference between a strait probation and a deferred sentence. Both will involve being placed on some type of probation wherein you report to a probation officer, complete drug and alcohol counseling, perform community service hours, and pay a fine. The difference between the two is your status going forward.

In a strait probation, the court will sentence you to a term of jail or prison time, but suspend your sentence as long as you comply with all of the courts terms. If employers ask you if you have ever been convicted of criminal offenses, you will have to answer that you have ever been convicted of the criminal offense of DUI or DWI, even though you never went to jail or prison.

In a deferred adjudication, the judge does not find you guilty, but instead defers or holds off finding you guilty as long as you comply with all of the conditions of your probation. If an employer asks you whether or not you have a criminal conviction, you can honestly answer that you have not been convicted of a DUI or DWI offense.

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What are first offenses and deferred sentences?

Most first time offenders will strive for deferred adjudication probations because they want to avoid having a conviction on their record. The same thought process applies to first time DUI and DWI offenders. For employment purposes, a deferred sentence is usually a better option than a strait probation in the long run. Keep in mind, however, that some states do not allow deferred sentencing for DUI offenses. In Texas, the only options available for DUI charges are jail or prison time or strait probation. The result is the same even if your DUI charge is your first criminal arrest ever, not just your first DUI arrest. Your state’s penal code will determine what probated or deferred options are available for a DUI charge.

What Are Common Misconceptions about Probation and Deferred Sentences?

A common misconception about DUI probation and DUI deferred sentences is that it means you won’t have to go to jail. Because of the heightened intensity of campaigns against drunk driving offenses, many states now require defendants to serve time in county jail as a condition of a DUI probation or deferred sentence. The length of mandatory jail time will vary depending on your jurisdiction and your criminal history record. It can range from 72 hours to months, specifically 180 days, in jail. If you violate the terms of your DUI probation and are sentenced to jail, many states will not give you credit on the initial time you spent in jail because that time was not part of your sentence, but rather a condition of your DUI probation.

Probably the most common misconception regarding DUI probation or DUI deferred sentences is their effect on future DUI offenses. The assumption is that since you weren’t sent to jail and your sentence was deferred, that you should not be treated as a career or habitual offender, right? Wrong. Regardless of whether your sentence was suspended or deferred, most states will consider your prior DUI probation or deferred adjudication as a conviction for enhancement purposes if you are arrested again for driving under the influence.

In Washington, for example, if you receive a deferred sentence for a DUI, complete the probation, and receive a dismissal upon completion, you are still considered as having a previous conviction for subsequent DUI or DWI charges. Depending on the enhancement rules for DUI’s in your state, a prior deferred sentence can still have a significant impact on your criminal history.

How can you get legal help? 

If you are arrested for DUI or DWI, do not appear in court without a DUI attorney. Despite the lenient appearance of a DUI probation or DUI deferred adjudication, either one can significantly impact your finances, career options or your criminal history. For questions about first-time minor offenses or even before you enter a plea, consult with a DUI attorney in order to get a clear picture of the consequences of a DUI probation or deferred sentence in your jurisdiction.  

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Should You Hire a DUI/DWI Lawyer?

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