Sentencing Alternatives to Mandatory Jail
A third DUI conviction in California carries a mandatory minimum 120 days county jail sentence. However, mandatory jail is not necessarily mandatory. Penal Code section 2900.5(f) provides as follows;
"If a defendant serves time in a camp, work furlough facility, halfway house, rehabilitation facility, hospital, juvenile detention facility, similar residential facility, or home detention program in lieu of imprisonment in a county jail, and the statute under which the defendant is setenced requires a mandatory minimum period of time in jail, the time spent in these facilities or programs shall qualify as mandatory time in jail"
The obvious relevance of this provision is in relation to a defendant who is willing to engage in residential treatment pending resolution of his or her case. Those facing a prosecution for a third DUI in ten years often have an addiction to or problem with alcohol and should be encouraged to enroll in a treatment program for their own future health. If a defendant takes this step voluntarily, it is a good idea to ask the judge at the arraignment to formally order that the defendant remain in residential treatment pending the outcome of the case. At sentencing, the judge should be educated as to the provisions of the above penal code section, and credit should be requested against the jail sentence for the period spent in residential treatment. If the case is delayed beyond the 120 day minimum county jail period on a third DUI, it should be possibe to avoid the minimum sentence in its totality.
Ofcourse, despite the apparent mandatory language of the above penal code section, prosecutors and judges are often reluctant to allow defendants to serve out their jail term in a residential treatment facility. Defense counsel should be ready to address the merits of the situation by explaining what is required in the program and the specific benefits to the defendant and the community in addressing the underlying issue of alcohol addiction. The criminal justice system has an important interest in rehabilitation in order to prevent the commission of further offenses. It is often more difficult for a defendant to address his or her problems by way of lengthy residential rehabilitation, and defendants who take this step rather than taking a risk on early release with county jail time should be encouraged and supported by the court.