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  1. #1
    Join Date
    Mar 2011

    Default Probation Violation Case Dismissed and Now Being Retried

    My question involves criminal law for the state of California: I had a DUI in Aug 08. Went to court and got 3 yr probation 12/8/08. Completed all other requirements.

    1/22/11 got stopped for broken tail light. Had to do breath test and field sobriety test. two breath tests given 10 minutes apart. First at .077 second at .069. Passed field Sobriety. Officer charged me with Prob Violation and arrested me. He did not take my license or give me a suspension notice. Posted bail for $25K.

    Went to court on 2/14/11. At court, judge read the charges and from the code number, knew it was a Prob Violation, but had no other info. She asked the DA. She also had no file or police report. Judge asked me about my prior DUI, if I completed everything and if I had any other convictions. I said I had completed everything as well as over 2 years of my 3 yr probation. She checked the record and said yes, she could tell I had completed everything. She then said "Since I have no information regarding this case, I am going simply reinstate your existing probation which will automatically expire 12/8/11. Please wait for the bailiff who will have a copy of these proceedings for you to sign."

    I waited and then read over the court papers. It says "EXHONERATED" right on it and has that the only other stipulation is the reinstatement of my probation. I signed and left feeling very lucky.

    Imagine my surprise when 1 1/2 weeks later, I get a fat packet in the mail from the DA's office. In it is an order to appear before the same court 3/18/10, on the same charges, with the exact same case number, same DA and same judge. Now attached to that are my original dui info as well as the arresting officers police report, which they did not have when I appeared on 2/14/11.

    My questions are the following:

    1. Is this a mistake? I have already appeared before this judge on this case number and charge and the case was dismissed and I have a copy of the papers stating this and that I was exhonerated.

    2. If it is not a mistake, isn't this Double Jeopardy? How can I be tried for the exact same charges, the same case number and before the same court? Is this legal?

    3. When I appear next on 3/18/11, I will not have counsel. Should I mention these issues to the judge then about already appearing and being exhonerated? Or would it be best to not say anything, request a public defender, and then let him try to get the case thrown out (if thats possible)?

    4. In the event they can legally retry this case, what am I potentially looking at in terms of penalties? As I mentioned, its not a DUI, just a Prob Violation. And the officer did not take my license at the time of arrest, which from one website I saw, he should have done so and notified the DMV. That has not happened.

    I am extremely concerned about the possibility of losing my license for 1 year. I have a wife and three children to support. I lost my regular job 3 year ago and they only income I have is from my own flower and Nursery business which requires me to transport flowers and plants to sell at farmers markets, make deliveries etc. It is a small business that barely covers our bills (we already lost our home to a short sale 2 months ago). My wife is from Mexico, but a US citizen. Her English and limited job skills make it impossible that she could support us while I cannot drive. And I also just started a new sales job, which of course also requires visiting prospecitve clients.

    I'm less concerned with fines, extension of probation and possible jail time, but would like to know what the possibilities are in those regards are as well in terms of possible penalties. The most important is the driving though.

    Other than my original DUI and Prob Violation, I have no criminal record and am otherwise a good citizen trying to support my family and keep a roof over our head and food on our table, which will be impossible if I cannot work.

    Thank you!

  2. #2
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: Probation Violation Case Dismissed and Now Being Retried

    If a case is dismissed without prejudice, it can be refiled. For a probation violation you can face up to the maximum remaining period of incarceration on the underlying charge.

  3. #3
    Join Date
    Mar 2011

    Default Re: Probation Violation Case Dismissed and Now Being Retried

    Thanks. My papers do not say "dismissed without prejudice.". They just say Exonerated and on the back page it says the original probation is reinstated under its full terms.

    Officer did not take my license nor issue me a temporary.

    What will happen to my license if convicted? Will the court take my license and inform calif dmv or are they separate?

    What are the lightest and heaviest penalties for a dui probation violation of the zero tollerance law? Is there a way to keep my license even on a rrstricted so i can at least work and provide for my wife and family? The 2 jobs i have involve deliveries and sales calls to new clients in other towns, neither of which i can use public transport for.

    What is a normal disposition of a case like mine in N. Calif? No prior arrests before my '08 dui, nothing since until now my prob viol. for driving with .069. Im otherwise a good citizen, business owner etc.

    I will request a public defender. Is it best not to enter any kind of a plea at my hearing this Fri until i talk to the PD? Or should i ask why i am being tried again if i was already exonerated and parole reinstated?

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