What exactly is interim probation?

Interim probation is authorized by CPL § 390.30(6), and this is how it works:

If you are charged with an offense that could result in a probation sentence, you may be eligible for interim probation.

For example, if you are charged with misdemeanor DWI, a sentence of probation is an authorized sentence. The prosecutor might say, "If the Defendant pleads to the top count of DWI, assuming approval by the Court, Defendant can go onto interim probation for 12 months. If Defendant is successful on interim probation, she can return to court in 12 months, withdraw the original plea to DWI, enter a plea to the non-criminal offense of DWAI (VTL § 1192(1)), and be sentenced to a Conditional Discharge on that lesser offense. On the other hand, if the Defendant is not successful, the misdemeanor conviction will stand, and the judge can sentence Defendant up to one year in the county jail, three years of probation, or a combination of the two."

Interim probation can also be used in felony situations. If a person is charged with a felony DWI, the prosecutor might say, "If the Defendant pleads to the top count of felony DWI, assuming approval by the Court, Defendant can go onto interim probation for 12 months. If Defendant is successful on interim probation, she can return to court in 12 months, withdraw the original plea to DWI, enter a plea to a misdemeanor DWI with two additional years of probation. On the other hand, if the Defendant is not successful, the felony conviction will stand, and the judge can sentence Defendant up to four years in state prison, five years of probation, or a combination of the two."

How can I be successful on interim probation?

1. Do not consume or possess alcohol or mood-altering drugs while on interim probation.
2. Most interim probation periods for DWI require you to surrender your driver's license, and to abstain from all driving.
3. Report to counseling as directed.
4. Report to your probation officer as directed.
5. Do not leave the county of your residence without permission from your probation officer.
6. Follow court orders, such as engaging in "sober support activities," developing a relapse plan, and don't go anywhere alcohol is being served.

Now that it is legal, may I use cannabis while I'm on interim 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.

That being said, different judges have very different ideas about cannabis. Some still treat it as an illegal drug and will violate you in a hurry if you test positive for THC or its metabolites. Talk with your lawyer about cannabis before using it.

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

It depends on who the judge is, and on how serious the violation of probation is. 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. In almost all cases you will be terminated from interim probation and will be stuck with the original plea you entered.

If you have a question about interim 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.