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Is DWI Different? Impaired Driving probation violations and the limits of judicial authority

The Justice Reinvestment Act of 2011 (JRA) enacted major changes to the way probation violations are handled by the North Carolina criminal justice system.

Even three and a half years later some probation officers, attorneys, and other court actors are struggling to make sense of the JRA and its impact on probation violation proceedings.

This is especially true in the area of Impaired Driving probation.

Many court actors believe that "DWI is different" when it comes to probation, but is that really true?

In some areas, DWI really is different. DWI is different when it comes to the way probation is imposed after conviction.

Because DWI is not sentenced according the Structured Sentencing Act, North Carolina General Statute (N.C.G.S.) 15A-1342 says that a judge can place a person convicted of DWI on probation for up to five years without any special findings of fact.

Structured Sentencing cases, however, require the judge to make findings of fact if he or she sentences a defendant to a shorter or longer period of probation than is standard, depending on the type of case. For most misdemeanors, the standard maximum period of probation is 18 months. (N.C.G.S. 15A-1343.2(d).)

But how about probation violation hearings for people on probation for DWI? Is DWI different in those cases? The short answer is no.

Here is where a defendant can get into serious trouble if the probation officer, the defense attorney or the judicial official does not clearly understand the application of the Justice Reinvestment Act (JRA) to DWI probation cases.

The JRA severely limits judges' ability to revoke defendants' probation and send them to jail. Only in certain, fairly narrow circumstances can a judge order a defendant to serve his entire suspended sentence in custody. (Judges can order defendants to serve shorter periods in jail, up to 90 days, for most "minor" probation violations.)

These limits on a judge's authority to send probation violators to jail or prison apply regardless of whether the conviction is for DWI or any other offense.

Article 82 of N.C.G.S. Chapter 15A covers the limits on a judge's power to revoke probation. N.C.G.S. 15A-1341(a) applies article 82 to DWI cases as well as Structured Sentencing cases.

In short, judges are subject to the same limitations on their power to revoke probation in DWI cases as they are in other criminal cases.

If you are on probation and have a pending probation violation hearing, make sure your attorney understands the application of the JRA to your case and how best to defend and vindicate your legal rights in court.

For additional reading, consult the UNC School of Government's excellent Justice Reinvestment Act Resource Page, as well as the School of Government's searchable North Carolina Criminal Law Blog.