Could a Kentucky DUI sentence be served in home incarceration under the 1994 law?

Plain-English summary

In 1994, Kentucky's Attorney General concluded that home incarceration could satisfy the imprisonment component of a first, second, or third DUI sentence, subject to the home incarceration statute's eligibility limits. It treated confinement at home as a form of imprisonment, not as suspension or probation of the sentence. A specified recent violent felony conviction would make the person ineligible.

The AG said a fourth or later DUI conviction was a felony under the then-current DUI statute and could not receive home incarceration because KRS 532.210(1) authorized that disposition only for misdemeanants. These classifications and sentencing terms were the opinion's 1994 law, not current DUI sentencing advice.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

First through third DUI convictions

The opinion said the 1994 DUI statute required minimum imprisonment for repeat offenses and restricted suspension, probation, conditional discharge, and early release. It nevertheless viewed home incarceration as confinement under KRS 532.200(2). Because KRS 532.210(1) permitted misdemeanants to petition the sentencing court for home incarceration, the AG said the first three DUI categories could qualify if no exclusion applied.

Violent felony exclusion

The AG identified KRS 532.230's bar for someone convicted of a violent felony offense and framed the relevant lookback in its answer as five years. It noted that DUI itself was not within the violent felony definition in KRS 532.200(3).

Fourth or later DUI conviction

The opinion said a fourth or subsequent DUI was a felony under the 1994 version of KRS 189A.010. It read KRS 532.210(1) as authorizing home incarceration only for misdemeanants and therefore excluded that felony category.

Common questions

Did home incarceration count as imprisonment in the 1994 opinion?

Yes. The AG described it as confinement even though it was usually served at the person's residence rather than in a penal institution.

Could a second or third DUI sentence use home incarceration despite mandatory minimum imprisonment?

The AG said it could under the 1994 statutes because home incarceration was itself a form of imprisonment, subject to eligibility rules.

Did the opinion allow home incarceration for a fourth DUI?

No. It treated that conviction as a felony and read the home incarceration provision as limited to misdemeanants.

Did a prior violent felony matter?

Yes. The opinion said a conviction for a defined violent felony within the preceding five years barred home incarceration.

Background and statutory framework

The requester asked whether home incarceration could be imposed after a DUI conviction under KRS 189A.010. The AG read that statute's minimum imprisonment language alongside KRS 532.200(2)'s definition of home incarceration as confinement, KRS 532.210(1)'s misdemeanant petition process, and KRS 532.230's exclusion. Its answer distinguished the first three DUI categories from the fourth-and-later felony category under the 1994 law.

Citations and references

• KRS 189A.010: DUI offense levels and imprisonment terms discussed in the opinion.
• KRS 532.200(2): home incarceration as confinement.
• KRS 532.200(3): violent felony definition.
• KRS 532.210(1): misdemeanant eligibility for home incarceration.
• KRS 532.230: exclusion for violent felony convictions described by the AG.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG94-049.htm

Original opinion text

OAG 94-49

July 11, 1994

Mr. Donald R. McFadden

Central Inmate Monitoring

P.O. Box 842

London, Kentucky 40743-0842

Dear Mr. McFadden:

You recently wrote a letter to the Attorney General in which you asked whether home incarceration is a lawful penalty for a person convicted of violating KRS 189A.010, the Kentucky statute which prohibits driving a motor vehicle while under the influence of intoxicants.

Having reviewed various Kentucky statutes, we believe that a court may lawfully impose home incarceration as a penalty for a first, second, or third violation of KRS 189A.010, unless the defendant has been convicted of a violent felony offense, as defined by KRS 532.200(3), within the previous five years. We are further of the opinion that a person convicted of a fourth or subsequent violation of KRS 189A.010 is not eligible for home incarceration, since such a conviction is a felony under KRS 189A.010(4) and since KRS 532.210(1) does not permit a felon to be sentenced to home incarceration.

We first note that a conviction under KRS 189A.010 requires minimum sentences of imprisonment, which increase in severity depending upon the number of prior offenses committed by the defendant. See KRS 189A.010(4)(a), (b), (c), and (d). In addition, KRS 189A.010(5) states, in pertinent part, as follows:

For a second or third offense [of DUI] within a five (5) year period, the minimum sentence of imprisonment or community labor shall not be suspended, probated, or subject to conditional discharge or other form of early release. For a fourth or subsequent offense under this section, the minimum term of imprisonment shall be one hundred twenty (120) days, and this term shall not be suspended, probated, or subject to conditional discharge or other form of early release.

(Emphasis added). The statute clearly mandates imprisonment for second, third, and fourth convictions for driving under the influence of intoxicants, and the trial court must sentence the defendant accordingly.

The Kentucky home incarceration statutes include KRS 532.200 through KRS 532.250. Although usually served at the defendant's residence rather than in a penal institution, "home incarceration" is by its nature a type of confinement, incarceration, or imprisonment. It is specifically defined under KRS 532.200(2) as the "use of a person's home for purposes of confinement." (Emphasis added).

Conviction for certain criminal offenses might render a person ineligible for home incarceration under the statute. KRS 532.210(1) declares that only a person convicted of a misdemeanor, and not a felony, may be sentenced to home incarceration, as follows:

Any misdemeanant may petition the sentencing court for an order directing that all or a portion of a sentence of imprisonment in the county jail be served under conditions of home incarceration. Such petitions may be considered and ruled upon by the sentencing court prior to and throughout the term of the misdemeanant's sentence.

(Emphasis added).

One class of misdemeanants, however, is not eligible for home incarceration. If, within the five-year period preceding the present conviction, the misdemeanant committed a "violent felony offense," KRS 532.230 prohibits home incarceration, as follows:

No person being held under a detainer, warrant, or process issued by some other jurisdiction shall be eligible for home incarceration. No person convicted of a violent felony offense shall be eligible for home incarceration.

"Violent felony offense" is defined by KRS 532.200(3), and KRS 189A.010, the drunk driving statute, is not included as one of the crimes which fall within the definition of "violent felony offense."

We therefore believe that home incarceration may be lawfully imposed by a trial court as a penalty for a first, second, or third violation of KRS 189A.010, unless the defendant has been convicted of a violent felony offense within the previous five years, as defined by KRS 532.200(3). We further believe that a person convicted of a fourth or subsequent violation of KRS 189A.010 is not eligible for home incarceration, since the statutes do not permit a court to sentence a felon to home incarceration.

We trust that this letter will be of some assistance to you.

Yours very truly,

CHRIS GORMAN

ATTORNEY GENERAL

Perry T. Ryan

Assistant Attorney General