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  1. #1

    Default Violation of Probation for Drinking

    My question involves criminal law for the state of: Florida

    I have recently been violated for having alcohol in my system in the morning at my florida safety council dui level II class. At 9:30 am they did a swab test and it changed color. They level on the testing indicator fell below .02 bac. There was no color for the level that was detected so all I can say was that it was below .02, which is the lowest indicator. I was dismissed from the class on my last day and I had to resign up and pay. $350.00. I have only been on probation since FEB. I am still within my probation period. I have looked at my terms and it says I cannot consume alcohol to excess. I interpret that as meaning above .08 (the legal limit). Maybe I am wrong. My question is: If I am allowed to consume alcohol then how did I violate probation? Who is responsible for interpreting the violation? Probation officer, judge, etc?

    I have a bench warrant of course so I also would like to know how to remove that if possible. I finally have enough money to pay the fines off which are due in AUG ($1400). They are not a condition of probation but still due. I don't really think I can hire my attorney for this. Yikes!!!! I could maybe but then I couldn't pay the fines.

    Any help...Thanks

  2. #2
    Join Date
    Apr 2007
    Location
    Southeastern Michigan
    Posts
    1,226

    Default Re: Violation of Probation for Drinking

    Consult with a criminal defense attorney!!! If you don't have one, contact the local bar association and see if they can refer you to one for little or no-cost consultation.

    I'm not an attorney but I haven't heard of a DUI conviction and sentence that allows you to consume alcohol at all, even in small quantities.

  3. #3

    Default Re: Violation of Probation for Drinking

    I am allowed to consume alcohol. The deal put forth to me was that if I wanted to submit to random drug testing then I would be allowed to drink. I don't do drugs so I opted to submit to random drug testing (what a pain in the ***). The judge and the attorney I imagine created the conditions. One of those conditions is I can consume alcohol but not to excess. When I originally talked to my probation officer about why they are testing me for alcohol if I was indeed allowed to drink she replied a bit surprised that I can not drink to excess. I asked if that was above .08 and she replied yes. I believe that this violation is a mistake. I understand that the florida safety council has their rules for their class so if it is no tolerance than so be it. My punishment is I have to take the class again. What I can't understand is how did I break that courts requirements to cause a violation? Is it whatever the probation officer decides it is? Does the court decide that I violate and pull be back in front of the judge? Could it be possible that someone just thought I violated but I really didn't.

    Could I possibly handle this myself with a little coaching?

  4. #4
    Join Date
    Sep 2005
    Location
    Behind a Desk
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    73,795

    Default Re: Violation of Probation for Drinking

    Is your claim going to be that you had a beer or two in the morning, before going in to probation for your test, or that you were still at @0.02 after "sleeping off" what you drank the night before? Your probation officer seems to be operating from the assumption that your BAC was still positive from the night before.

    BAC normally drops about 0.015 to 0.02 per hour, so if you multiply that by eight hours of sleep, or even six....

  5. #5

    Default Re: Violation of Probation for Drinking

    I see what you mean. In this particular case I was still extremely sick. Possibly flu or sinusitis. I had been sick for days. The test was not at probation as a mandatory random drug test but at the safety council class. It was a highly inaccurate saliva swab. And the poison in my case happen to be about a third a bottle of Nyquil maybe a little more during the course of that particular night. I was very ill and the instructor of the class documented this and agreed that I was very ill (no voice, coughing, etc.). I assured him that I did not drink either that morning or the night before but as is safety council policy (so I am told)...not tolerance! My argument would of course be that I am able to drink at 9:00am anyhow. So if that is what I did than I guess I have to get kicked out of safety council class. But I still don't see how I violated probation. For that matter;

    if it was a random drug test,
    I drank a couple a beers before hand
    I went pee for the test
    and it came back a bit more accurate .02

    would that still be a violation? Is the rule, you can drink but not to excess AND never have any in your system during a test? I thought that understandably I would be in violation if I was tested at a bar or at my house or at anytime and my b.a.c. was above the legal limit. Sorry for rambling. It just seems that the interpretation of the courts order would be pretty simple. I can drink just not to excess. I didn't think there were any other stipulations.

    For the record It never even crossed my mind that nyquil in any amount after 3 or 4 or 5 hours would have any residual effect on a saliva test. My only possible explanation is the fact that I was lung infection sick so maybe the mucus or such could retain a certain amount of alcohol. But that would only be a needed possible explanation if I was not allowed to drink. And I thought I was. At anytime. Maybe not.

    Thanks for your help.

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