Articles Posted in PROBATION ISSUES

Recently, a state appellate court issued a written opinion in a New York DWI case raising the issue of whether a trial court can require a defendant to pay for the costs of a device that is used to measure the defendant’s alcohol intake. Ultimately, the court concluded that requiring a defendant to pay these costs is permissible; however, a court must attempt to fashion a “reasonable alternative to incarceration” for those defendants who legitimately cannot afford the costs.

The Facts of the Case

According to the court’s opinion, the defendant was convicted of a New York driving while intoxicated offense. As a result, he was sentenced to six months’ incarceration, to be followed by a term of probation. As a condition of the defendant’s probation, the court ordered the defendant to wear and pay for a Secure Continuous Remote Alcohol Monitoring (SCRAM) bracelet.

Evidently, the defendant made a few payments for the bracelet but then stopped paying. The company that monitored the bracelet eventually removed it. The defendant claimed that he had suffered an injury that prevented him from working, and that he could no longer afford to pay for the bracelet. The court held a hearing, finding the defendant in violation of a condition of his probation and sentenced him to one to three years in jail.

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When someone is placed on probation in lieu of jail time, it is generally seen as a win. However, often a sentence of probation is not the end of the story. Indeed, probationary sentences can be strictly enforced, and if someone fails to live up to each and every condition of the sentence, they risk being found in violation and face the possibility of jail or prison.

When someone violates a New York probation sentence, the judge who ordered the original sentence can re-sentence that person to up to the statutory maximum. Thus, what starts off as a short sentence of probation can turn into what seems like a lifetime of being wrapped up in the system. Thus, the importance of a New York criminal defense attorney in a probation hearing cannot be overstated.

Of course, when a person on probation picks up a new criminal case, that case is a potential direct violation of their probation sentence. This is because the terms of probation forbid picking up a new case. Normally, the person will not be found in violation until they have been found guilty of the new offense. If they are found not guilty, in theory, their sentence of probation should continue. If they are found guilty, the new conviction will be a direct violation, and the judge overseeing the probationary sentence will be able to re-sentence that person.

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