Interviewer: You can keep it below the radar for the most part then. After someone’s convicted, you said there is a probation period sometimes imposed. Usually, how long is the probation and what is required of a person who is serving probation?
Probation Usually Entails Agreeing Not to Consume Alcohol, Attending Classes and Meetings with a Probation Officer
Ben: During your probation period, usually you’re not allowed to consume alcohol or be around places that serve alcohol. You might have to attend some kind of alcohol education meetings.
You’ll have to take random drug and alcohol tests. You’ll have to report into a probation officer. If you want to leave the state, you’ll have to report into them before you travel.
Interviewer: Even if you’re over 21, you’d normally be allowed to drink. If you’re on probation you’re not allowed to drink?
Ben: Yes, on the probation period you most commonly wouldn’t be allowed to drink.
Subject to Search and Seizure: While Serving Probation, You Forfeit the Protection Afforded by your Fourth Amendment Right
Interviewer: For some people that can mean years, is that right?
Ben: It could, certainly. When you’re on probation, you give up your Fourth Amendment right to illegal search and seizure, so the probation officers or the police can come into your house and search it at any time. This is something you have to think about before you go on probation.
The police don’t really do it very often, but they have the right to. I have found that people don’t usually think about that, but you are giving up that right.
Is it Possible to Modify Your Probation Requirements?
Interviewer: Do you try to argue to reduce probation or eliminate the requirements, or do you not have leeway in the terms?
Ben: You don’t really have a great deal of leeway there. You can talk to the judge. For example, if you are a cook and you work in a restaurant and one your probation requirements is that you can’t be around alcohol, you’re going to tell the judge that, and he or she will make a notation of that into the probation documents.
The Judge May Allow Some Work-Related Relaxation in the Probation Requirements
This person works in a restaurant, and they have to be around alcohol when they’re working, so the probation department can’t be so strict about it. You can have a little leeway in those kinds of situations.
Interviewer: That’s true. That makes sense.
Ben: Besides that, what you are required to comply with is pretty standard.
Are There Any Common Defenses to a DWI Charge?
Interviewer: What are the most common defenses that you’ll raise? I know every case is different, but what do you find yourself doing to attack the prosecutor’s case most frequently?
Leaving the Burden of Proving Intoxication up to the State
Ben: The most frequently used one is that my client wasn’t drunk at the time. You leave it up to the government to prove beyond a reasonable doubt that the client was, simply put. They have to do that. Those cases hinge on having not taken the breathalyzer.
Disputing the Results of the Field Sobriety Tests
Interviewer: Are there any other common defenses? Could you get a breath test suppressed? What else can be done?
Ben: You can say that the person failed the sobriety test for different reasons. Maybe they were really tired. Possibly they had an injury to their leg. There are all kinds of reasons that you could fail a sobriety test besides being drunk.
Suppressing Any Admissions
If you make a statement, you can maybe get that statement suppressed because you weren’t read your Miranda rights. Or you were actually in custody and the police didn’t read you those rights, so they should not have made a statement without being Mirandized. There are all kinds of reasons to suppress statements. There are many different avenues to pursue.