Can a North Carolina judge let a Level 1 or Level 2 DWI defendant serve the mandatory jail time at home on electronic monitoring instead of in the county jail?

Plain-English summary

A district attorney asked whether Level One and Level Two DWI defendants could serve the mandatory minimum imprisonment required by G.S. 20-179 through electronic house arrest probation. The AG answered no. The opinion says the Level One statute required at least 14 days of imprisonment, including when the term was suspended with a special-probation condition. It described the Level Two provision as similar with a shorter minimum.

The AG read the DWI rule together with the special-probation and confinement statutes. G.S. 15A-1351(a) referred to imprisonment in the custody of the Department of Correction or a designated local confinement or treatment facility. G.S. 15A-1352 addressed where a misdemeanant could be committed, and G.S. 15-6 generally required imprisonment in a county jail unless law provided otherwise. The opinion noted that these provisions made no reference to house arrest “or any other alternative form of confinement.” It concluded that an electronic house arrest program was not available to defendants sentenced under G.S. 20-179.

The answer covers that proposed substitute for the statutory jail term. The opinion does not evaluate a halfway house, a program with daily check-ins, or other monitoring arrangements, and gives no conditional approval for them.

Currency note

This opinion interprets DWI sentencing and confinement law as it stood in 1989. Check current G.S. 20-179 and related statutes for a present sentence.

Background and statutory framework

The opinion explains that special probation combined a suspended term with a required period of imprisonment in specified custody. For shorter misdemeanor sentences, it discussed G.S. 15A-1352 and the overcrowding exception cited there. Neither supplied authority for serving the required imprisonment at home. The AG also quoted an earlier office opinion on the statutory meaning of “local confinement facility” and read the provisions together to reject electronic house arrest for the DWI minimum.

Common questions

Could electronic house arrest count toward the mandatory Level One or Level Two term?

No, under the statutes examined in this 1989 opinion. The AG said a program of electronic house arrest was not available to defendants sentenced under G.S. 20-179.

Did the opinion approve a monitoring program with a daily visit to a facility?

No. It did not analyze such a program. The AG said the legislature had made no reference to house arrest or another alternative form of confinement in the provisions it examined.

Did the overcrowding exception allow house arrest?

The opinion said no. It described that exception as dealing with other confinement facilities, not with house arrest.

Citations

• N.C.G.S. § 15-6, 15A-1351(a), 15A-1352
• N.C.G.S. § 20-179(g), (h)
• N.C.G.S. § 148-32.1(b)
• N.C.G.S. § 153A-217(5)
• State v. Norwood, 93 N.C. 578 (1885)
• 55 N.C.A.G. 21 (1985)

Source

• Landing page: https://ncdoj.gov/opinions/electronic-house-arrest-conviction-for-driving-while-impaired-probation/

Original opinion text

Requested By: Steve A. Balog, District Attorney, Prosecutorial District 15-A

Question: Can the mandatory minimum 14 day sentence for Level 1 and 7 days for Level 2 DWI defendants be served through electronic house arrest probation?

Conclusion: No.

The applicable language in N.C.G.S. § 20-179(g) provides as follows:

"(g) Level One Punishment – A defendant subject to Level One punishment may be fined up to two thousand dollars ($2,000) and must be sentenced to a term of imprisonment that includes a minimum term of not less than 14 days and a maximum term of not more than 24 months. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 14 days."

Subsection (h) reads similarly except for the smaller fine and term of imprisonment.

Special probation is discussed in Article 83 of Chapter 15A which is entitled "Imprisonment." Specifically, N.C.G.S. § 15A-1351(a) provides in pertinent part:

"Under a sentence of special probation, the court may suspend the term of imprisonment and place the defendant on probation as provided in Article 82, Probation, and in addition of imprisonment in the custody of the Department of Correction or a designated local confinement or treatment facility at whatever time or intervals within the period of probation, consecutive or nonconsecutive, the court determines." (Emphasis added).

The statute discusses in further detail the conditions of special probation, all of which refer to periods of imprisonment being served in the custody of the Department of Correction or local facility. There is no mention of any form of "house arrest."

N.C.G.S. § 15A-1352 deals with which facility, state or local, a misdemeanant shall be committed. If the sentence is less than 180 days, the offender may only be committed to a facility other than one maintained by the state, except as provided in N.C.G.S. § 148-32.1(B). That limited exception deals with situations of overcrowding, but does not mention "house arrest."

Finally, N.C.G.S. § 15-6 provides that no person shall be imprisoned except in the county jail unless otherwise provided by law. See, State v. Norwood, 93 N.C. 578, 579 (1885).

Construing these statutes in pari materia, it can be concluded that DWI offenders placed on special probation can only serve their sentences in a county facility subject to any exceptions otherwise found in the statutes. N.C.G.S. § 20-179 contains no exceptions, but speaks clearly that the defendant is to be "imprisoned." N.C.G.S. § 15A-1352 refers to the only exception for misdemeanants sentenced to less than 180 days, that being N.C.G.S. § 148-132.1(b). That statute makes no reference to any facility other than another county jail, except in rare situations when a Department of Correction facility may be used. In none of these laws has the Legislature made any reference to confinement by "house arrest" or any other alternative form of confinement. In an opinion issued by this office in 1985 and found at 55 NCAG 21, an explanation of what constitutes a "local confinement facility" was offered as follows:

"A 'local confinement facility' is defined in N.C.G.S. § 153A-217(5) to be:

…a county or city jail, a local lockup, a regional or district jail, a juvenile detention home, a detention facility for adults operated by a local government, and any other facility operated by a local government for confinement of persons awaiting trial or serving sentences.

By its terms, this definition applies only to Chapter 153A, Article 10, Pt. 1 of the General Statutes. However, this definition being the only definition of 'local confinement facility' appearing in the General Statutes, it may be assumed that this is the meaning intended by the General Assembly when it adopted N.C.G.S. § 15A-1352(a). Thus, the question becomes whether N.C.G.S. § 15A-1352(a) is an exception to N.C.G.S. § 15-6 which would allow a sentencing judge to sentence a misdemeanant to any local confinement facility in any county. We conclude that N.C.G.S. § 15A-1352(a) does not give such authority to the sentencing judge.

Because a local confinement facility can be many things, such as a juvenile detention home, N.C.G.S. § 15A-1352(a) should not be interpreted as granting authority to place a non-juvenile in such a home just because it is considered a local confinement facility. The better reasoned approach is to construe N.C.G.S. § 15A-1352 as providing a rule for determining whether certain classes of convicted persons will be confined in the Department of Correction or in a local facility, and leave the determination of which particular local facility may be utilized to other provisions of law. That is, N.C.G.S. § 15A-1352 is an exception to N.C.G.S. § 15-6 as to those misdemeanants with sentences of more than 180 days because they may be sentenced to serve their term of imprisonment under the jurisdiction of the Department of Correction, but as to those not placed in the custody of the Department of Correction, the only effect of N.C.G.S. § 15A-1352 is to broaden the term 'common jail' to include other types of local facilities which may be used under appropriate circumstances."

In conclusion, a program of electronic house arrest would not be available to defendants being sentenced under N.C.G.S. § 20-179.

Lacy H. Thornburg, Attorney General
Jane P. Gray, Special Deputy Attorney General