The majority of DUI cases involve a sentence to probation, either by itself or as an accompaniment to a term of incarceration. Probation for a DUI can last up to two years, but typically is limited to one year on a first offense lacking any aggravating factors. Even if a defendant is sentenced to a maximum term of incarceration, his jail sentence can legally be followed by a probationary sentence.
A defendant with two prior felony convictions is ineligible for DUI probation, unless the district attorney waives the two prior felony rule.
Certain conditions are standard on all probationary DUI sentences. In all DUI and DWAI cases, the court must order an alcohol evaluation. While it is generally true that the alcohol evaluation must be ordered and reviewed by the court prior to sentencing, the evaluation is completed subsequent to sentencing in cases where the defendant goes to “immediate sentencing”, such as in the majority of first drinking and driving convictions. The alcohol evaluation summarizes the defendant’s prior traffic record, history of alcohol and drug problems, and opines as to the defendant’s amenability to treatment and rehabilitation. The evaluation also recommends a particular treatment regimen: either Level I or Level II alcohol education, along with Level II therapy in certain cases involving either higher blood alcohol levels or prior drinking and driving convictions. There are four levels of therapy, with Track A consisting of 42 hours of therapy, and Track B consisting of 52 hours of therapy, Track C consisting of 68 hours of therapy, and Track D consisting of 86 hours of therapy.
The court may order that a defendant ingest antabuse should the court consider the defendant to have a serious alcohol problem. Judges also can order random breath tests, ETG tests, and urinalysis as probationary conditions. SCRAM bracelets, bracelets which test an individual for alcohol use 24 hours a day, also may be ordered. These bracelets are, however, expensive and are certainly far from infallible. Courts ordering that an individual wear a SCRAM bracelet often do so where the court is concerned that random breathalyzers may not be detecting continued alcohol use.