Increasingly, through 2014 and 2015, judges have unfortunately denied many motions for early termination of probation, motions which were routinely granted in the past. Prosecutors have been outspoken in opposing such motions, arguing that those who agree to a term of probation, for example for three years, should not come to court before the three years is over and ask for early termination if they cannot get a job because they are on probation. Prosecutors say “tough luck! You should not have violated the law. This is a consequence.”
The Gist of the Summary: Our client was convicted of an exhibition of speed following an arrest for DUI. The case was out of the Metropolitan Courthouse. Being on probation for our client, a medical doctor, meant he could not continue with his internship and his training, so our office filed a motion for early termination of probation. The judge granted this and we then filed a petition for expungement of the conviction, which the judge also granted.
Judges have largely followed the posture of prosecutors, even when a defendant asking for modification of probation had unforeseen circumstances that were unforeseeable when probation began. Sometimes, judges are sarcastic and disrespectful to anyone bringing such requests, even suggesting that such a person has an audacious sense of entitlement.
This trend affects many defendants, not just those represented by our office. We at Greg Hill and Associates have witnessed sanctimonious prosecutors and patronizing judges approach such motions with anger, as if attorneys requesting such motions are foolish and wasting their time.
Under Penal Code § 1203.3(a), however, a defendant has a right to request a modification of probation. It is not illegal to request this. Subdivision (a) states, that “[t]he court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence.” See e.g., People v. Allen
(1975) 46 Cal.App.3d 583, 588.
In the following case, our client was arrested for DUI after police in Hollywood allegedly observed him speeding at 2:15 a.m. while entering a freeway on ramp. Our client was stopped and his breath blood alcohol content (BAC) was measured at 0.11% and 0.12%.
Greg Hill negotiated a plea bargain at the Metropolitan Courthouse (1945 S. Hill Street, Los Angeles), in which our client pled no contest to a violation of Vehicle Code § 23109 (Exhibition of Speed) and both counts of DUI were dismissed. Our client was then placed on three years of informal, or summary, probation and required to attend the three-month DUI program (AB541), perform 240 hours of community service, and pay a court fine of $390 plus penalties and assessments (total of $1,976).
Our client promptly paid the court fine and dutifully attended the AB541 program. He also performed his 240 hours of community service quickly, within three months of entering his plea.
Our client, a medical doctor in his residency program, quickly found out, however, that being on any form of probation barred him from the vast majority of internships that he hoped to enroll in to study more about preventative medicine. He therefore contacted our office to see if we could request early termination of probation so he could continue on his career.
Our office responded that such a request would most likely be denied, as has been the trend among judges ruling on such motion, as described above. However, our client requested we try regardless. So we did and the judge granted the motion.
Once probation was terminated, we then filed a petition for dismissal (expungement), which the court also granted. Our client was quite happy with this resolution.
We note, in closing, that expungement of a DUI is also not a slam-dunk as many lawyers believe if one successfully completed probation or had probation terminated early. Under Vehicle Code § 12810(b), a judge has discretion to deny a petition for dismissal under Penal Code § 1203.4 for a DUI.
For more information about expungement and modification of probation, please click on the following articles:
- Defendant Does Not Have to Pay Restitution When Probation Terminated and Cases Dismissed
- Trial Court That Denied Expungement Because Petitioner Given a Five Year Joint Suspended Sentence Is Reversed on Appeal
- Is Expungement Worth It?