IRWIN KRAMER: Probation before judgment is often confused with straight probation, but there is a very big difference between the two.
BYRON WARNKEN: The judge says, I am going to give you a ten-year sentence and I am going to suspend it all and put you on three years supervised probation, that in most cases would be a probation after judgment. I have got a judgment against me, it is just that the judge allowed me to not have to go to the prison and allowed me to serve on probation.
IRWIN KRAMER: But probation before judgment allows you to keep a clean record, the judge has found you guilty, but is not imposing a judgment of conviction.
BYRON WARNKEN: The judge says well this is your fist time, I am going to give you a PBJ. I am going to give you a probation before judgment, so you go on probation, you do the following things I have asked you to do and you will never get a criminal record.
ANDY RADDING: First offenders will have a better chance than subsequent offenders.
BYRON WARNKEN: Most judges are very hesitant to give you a criminal record if you do not have one. If you got 5 prior criminal convictions, what is the difference doing five convictions and six, but there is a big difference between 0 and 1, so you get a lawyer to explain, your honor, this was an aberration.
ANDY RADDING: Incarceration is not necessary that you should be given this chance.
BYRON WARNKEN: This is not the normal way my client behaves.
ANDY RADDING: And that a permanent criminal record is not necessary, that is when probation before judgment will be imposed.
Guilt Without Convictions?
We all make mistakes. Some mistakes are more serious than others. In fact, some are downright criminal.
But it was the first time I ever ...
There's no excuse for having one too many beers before hitting the road. It's not a defense that you had a perfectly spotless record before the cop pulled you over. And it just doesn't matter that you're extremely sorry, will never do it again, and will even attend AA meetings from now on.
But do you really have to saddle me with a criminal record for the rest of my life?
The answer is ... not necessarily. In our system of justice, you can actually be found guilty, but escape without a criminal record. Often used to cut a break to first offenders, a "probation before judgment" or "PBJ" lets you off the hook. If the judge thinks you deserve a break, and that it wouldn't do anyone any good to slap you with a permanent criminal record, the judge may stop short of entering a judgment of conviction against you. Thus, a probation before judgment let's you keep a clean record and, as long as you behave yourself and follow any conditions the judge places on your conduct, you won't become an ex-con. In fact, after a few years you can probably get any record of the charge expunged. Not a bad deal ... if you can get it.
Don't I have a right to a PBJ?
Uh, no. No you don't. The mere fact that you're a first offender, or have a pretty clean record, doesn't mean you'll necessarily get a PBJ. That's completely up to the judge. Sometimes, it even depends on the judge's mood that day. But in most cases, the judge will examine your prior record, the facts of the case, the consequences of imposing a criminal conviction upon you, and the nature of the offense.
At one time, those charged with their first drunk driving offense could be virtually assured of getting a PBJ. Ah, but then some mothers got MADD, opposing the seemingly automatic granting of PBJs for offenses which can and do take lots of innocent lives. Recognizing the devastation that may occur, some judges have been a bit more reluctant to offer a PBJ too quickly. So, depending on your judge and where you live, don't consider it a sure bet.
The moral of the story: Don't bet on a PBJ. If you have an otherwise spotless record, and the offense isn't too far out of the ordinary, you'll probably get one. But not all dogs get one free bite.