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LawHelpNow, Attorney/Lawyer
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i violated my probation with an second offence owi withen 5

Customer Question

i violated my probation with an second offence owi withen 5 years.... was on probation origanly for owi in 2009, i had 6months supended with a year probation... i payed a lawyer 1500 to represent me.. i go to court on monday....When i was prossesed i think the jail broke a rule while bringing me in for my breath test... I think they are supposed to wait 20 min before adminstering the breath test when i arrived.... and (or) ur not supposed to have anything near your mouth, or ur suposed to have to waite 20 min before the breath test.. i was coufing on perpose to try an get an extra few min to take my test, cause i knew i wld pass... Well they still took me right in and tesed me.. I blew an .08.. can i fight that charge,? and what kinda time am i looking at? PS,,, ive served 3 weekes on my owi, got served my warrent in jail. But they didnt process it, messed up and let me bond out.. So i called my probation and she looked into why they let me out and i ended up having to turn myself back in on the probation warrent a week later. Im currently serving time, and have been in for another 3 weeks.. I am on wrk release, and have court on monday... what do you think will happen? I am an veteren of iraq freedom and also served in operation enduring iraq freedom.. just for your info.. and i only have three charges on my recorde.... in 99 wreckless driving 2009 owi and 2011 owi with a probation violation...was 3weeks from compleating my terms of my probation, when i got this charge...
Submitted: 6 years ago.
Category: Criminal Law
Expert:  LawHelpNow replied 6 years ago.

Thanks so much for choosing this forum to pose your important legal question. I will do my best to give you some honest and accurate guidance as I answer your question.


  1. I am a licensed attorney with criminal law experience. I will be glad to try and answer your question. I hope that the following information will be helpful to you, but please just write back if you have any follow-up questions or need clarification on anything after reviewing the following information.
  2. First of all, please allow me to say I am genuinely sorry for your circumstances. Accordingly, it gives me no pleasure to be the bearer of some discouraging news. While I am sure the following is not what you were hoping to read, this is a correct statement of the currently existing law. While I cannot of course make any promises or guarantees, it is quite likely that your probation would be revoked. Should that occur, this means you would be facing having to serve the sentence (suspended) on your first conviction, as well as whatever penalty is imposed on your second offense (assuming that results in a second conviction). That being said, you have quite astutely focused in on the issue of the proper operation of the breathalyzer. More specifically, you are indeed right about the "20 minute rule", which is actually codified at (click on links and scroll down) 260 Indiana Administrative Code 1.1-4-8 pursuant to the authority of Indiana Code 9-30-6-5. Without a doubt, these machines and their operators, policies, training, etc. provide fertile ground for criminal defense attorneys. At your first appearance, you should request the appointment of legal counsel if unable to afford to retain a private lawyer. If at all possible, you should speak with an advocate immediately by calling your local resources (again, click on link on scroll down): Lawyer Referral Services. If asked to enter a plea (which should not be the case at your initial appearance), you should simply state "not guilty" and decline to make any further statements until you are represented. That is about the size of have what sounds like a highly meritorious issue to raise with the machine, but you truly need legal representation to give yourself the best fighting chance.
  3. I hope that makes sense, but please do not hesitate to write back if needed. I shall be signing off soon to attend to some other professional obligations. Please rest assured, however, that I will be sure to check for any updated posts from you when I return to this online forum. I hope all works out.


I hope that this information has been helpful to you. If we can be of any further assistance please free to use our service again. Best wishes for a successful outcome.


If my answer has been helpful to you, please click "ACCEPT" so that I may be paid. This is the only way that I will receive compensation for the work performed. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done. Clicking "FEEDBACK" to leave your positive comments is always greatly appreciated.


The information provided is general in nature only and should not be construed as legal advice. By using this forum, you acknowledge that no attorney-client relationship has been created between you and Benjamin M. Burt, Jr., Esq. You should always consult with a lawyer in your state.

Customer: replied 6 years ago.
ok thank you.. but beings im on wrk release do you think i cld receave house arrest? and what about my time already served?
Expert:  LawHelpNow replied 6 years ago.

Hello again,


Thanks for writing back -- good to hear from you.


I will be glad to comment further -- please see below.


I do ask that you kindly press "Accept" to process my answer.


  1. House Arrest: No, unfortunately this would not be an option (see below).
  2. Time Served: Yes, you will receive credit. Indiana Code 35-50-6-1 provides in pertinent part: "A person whose parole is revoked shall be imprisoned for all or part of the remainder of the person's fixed term. However, the person shall again be released on parole when the person completes that remainder, less the credit time the person has earned since the revocation..." Note the mandatory "shall" language as opposed to discretionary "may" language for the Court to follow. In other words, the Legislature has taken the decision out of the hands of the Judge. A parole violator will serve the time, but will also receive credit.

I hope that helps a bit more and that things work out for you in this matter.


Take care and thanks again for choosing JustAnswer®!


Customer: replied 6 years ago.
Im not on parole? just on probation? does that help me? And can you send back everything we have discused?.....and it is an mistameter probation violation... and how else can i get this fellony off of my record?.....
Expert:  LawHelpNow replied 6 years ago.

Hello there,


You have asked six additional questions beyond your original inquiry and two follow-up questions. So, to comply with site police I need to ask that you please select the green "Accept" button on the honor system. I receive no salary or wages for my services. Many thanks in advance!


To pose your other questions, you would need to open a new thread. Please feel free to direct those questions to my attention (if desired) by typing your post in the text box under "Ask Your Question" on my Profile Page.


Take care and thanks again for choosing JustAnswer®!


Customer: replied 6 years ago.
Relist: Answer came too late.
Customer: replied 6 years ago.
Relist: Answer came too late.