DWI Probation Questions

“I have your back”

"Hiring Adam was the best decision after I was charged with 4 tickets for a DWI. It took Adam just one court appearance to convert all the tickets into a minor DWAI with minimum charges. He always made sure I was relaxed and he would take care of me like a younger brother. I've no words to thank him for what he has done for me!" *****

“Mr. Militello is the BEST!”

"Adam is an AWESOME attorney! I never been in trouble with the law and after getting pulled over on the holiday was charged with a DWI. I was scared and terrified. Adam told me, I would be okay and he would fight for me. Which he did. He got my misdemeanor charge down to a traffic infraction of a DWAI. Which is a non criminal charge. I am very thankful and blessed. I'm a healthcare professional and a misdemeanor would have affected my career. He is honest, a good listener, very funny and keeps you updated in regards to your case. He contacts you in reasonable time and works hard on your case. He doesn't mind when you call asking a lot of questions. Also, he is very affordable and will work with. Forget the rest, hire best. Adam is the best." *****

If I am sentenced to probation, how long will it last?

Misdemeanor probation lasts 3 years. Felony probation lasts 5 years. It is common for misdemeanor DWI probation to be terminated after 18 months for people who have been extremely compliant with the directives of their probation officer, who exhibit no signs of ongoing alcohol dependence, and who have no prior arrest history.

May I drink alcohol in moderation while I'm on DWI probation?

No. You may not consume any alcohol while you are on probation. In some instances, you may be prohibited from using any products that contain alcohol.

P. Adam Militello, Esq.
P. Adam Militello, Esq.

Now that it is legal, may I use cannabis while I'm on DWI probation?

Under the new law, you may not be sanctioned by Probation, Parole, or any other supervision program for using cannabis as prescribed by a health care professional. To be clear, you can still be arrested if you are driving while impaired by cannabis, or if you illegally sell cannabis to a person. You cannot, however, be violated by Probation or Parole for legally using cannabis as a prescribed medicine.

If you aren't a medical cannabis patient, then Probation and Parole are still not supposed to penalize you for legal cannabis use "unless the terms and conditions of said parole, probation, or state supervision explicitly prohibit a person's cannabis use or any other conduct otherwise allowed under this chapter. A person's use of cannabis or conduct under this chapter shall not be prohibited unless it has been shown by clear and convincing evidence that the prohibition is reasonably related to the underlying crime." Most terms of supervision direct the person being supervised not to use any illegal drugs, and cannabis is still illegal under federal law. If you are currently under supervision and need to use cannabis, you should get a medical marijuana card and a valid prescription from your doctor. Before you begin using cannabis I suggest that you talk with your lawyer about how to best make sure you don't get into trouble.

Can I leave the county I live in while I’m on probation for DWI?

You can leave the county with the permission of your probation officer or the court. You need to get permission before you leave, and you should plan on having a good reason for leaving along with a planned time for returning. Once you establish a rapport with your probation officer, he or she may allow you to leave the county without getting their permission for each specific instance, but that may take some time.

I violated DWI probation – what is going to happen to me?

It depends on who the judge is, and on how serious the violation of probation is. There is a judge in Rochester City Court who regularly terminates misdemeanor probation for violations, and sentences defendants to 120 days of straight jail time or more. Some superior court judges regularly punish probation violations for felonies with state prison.  There are other cases in which judges will simply restore you to probation.

The best thing you can do in a probation violation case is to find an attorney who knows your judge well. It’s the best chance you have to avoid incarceration

I was sentenced to probation for my first DWI. Can I now request weekends in jail instead of probation?

Once you are sentenced to probation, the only way to get off it is to violate the terms of your probation and get resentenced by the judge (a VERY bad idea) or to ask your attorney to make a motion for resentencing. To be perfectly frank, the motion for resentencing is unlikely to succeed. The fact that you want to get off probation so badly that you asked your lawyer to make a motion will probably just further convince the judge that you need probation supervision.

For many people, straight jail time is easier than being under the supervision of the Probation Department.  In almost every DWI case, the judge will order you not to drive or apply for a driver’s license without the permission of their probation officer and the court. It isn’t easy to not drive for three years. It also isn’t easy to stay in the county at all times. If you live in Rochester or Geneseo, you need to report to your probation officer before going to Eastview Mall. It’s similarly difficult to not drink alcohol for three years, or to subject yourself to random home and work visits, or to report every little aspect of your life to a naturally suspicious probation officer for three to five years.

What is the process for turning yourself in on a bench warrant when you are on probation?

If there is a warrant for your arrest, your probation officer already knows it, and they are probably already looking for you. If you want to turn yourself in, I would first call my attorney and tell them what is happening. I would then go directly to the Sheriff’s Department and turn myself in. After identifying myself and stating that I believed there as a warrant for my arrest, I would invoke my right to remain silent.

If my DWI probation is terminated early, will I be able to get my driving privileges back?

This is actually a pretty complicated question. There are a number of reasons as to why you might not have a license, and they might not all be linked to probation. For example, you may have a DMV license suspension that has not yet been lifted, or you may have a mandatory refusal period that has not ended. You may be able to get your driving privileges back once probation ends, but only if your driving privileges are not suspended or revoked by the DMV. An experienced attorney can walk you through whether or not you are eligible to drive once probation terminates successfully.

If I violate my DWI probation, will I automatically go to jail or can I get a hearing first?

When you violate probation, a Declaration of Delinquency is filed with the same court that ordered you under the supervision of the Probation Department. The court can then set a date and time for your appearance, or it can issue a warrant for your arrest. If you are arrested, you can only be held until the next session of court held on the next business day.

If you have a question about probation issues in a DWI case, contact us at The Militello Law Firm for a free telephone consultation and case evaluation. Our number is (585) 485-0025.


10.0P. Adam Militello
P. Adam MilitelloReviewsout of 30 reviews

Militello Law Firm, PLLC
2480 Browncroft Blvd.
Rochester, NY 14625

Phone: (585) 485-0025
Fax: (585) 286-3128