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 the AG whether a sentencing judge could fulfill North Carolina's mandatory minimum DWI jail time by ordering electronic house arrest instead of confinement in a jail. The answer was no.

Special Deputy Attorney General Jane P. Gray worked through the statutory chain. N.C.G.S. § 20-179(g) required Level 1 DWI offenders to be sentenced to at least 14 days, either as an active term or as a special probation condition. § 20-179(h) imposed the same structure on Level 2 offenders with a minimum of 7 days. The "special probation" referenced in those subsections is defined in § 15A-1351(a), which says the court can suspend the imprisonment term and require the defendant "to serve a term of imprisonment in the custody of the Department of Correction or a designated local confinement or treatment facility." The whole detailed framework of § 15A-1351 talks about periods of imprisonment served in DOC or local facilities. None of it mentions house arrest.

§ 15A-1352 governs where misdemeanants get committed. For sentences under 180 days, the defendant goes to a facility other than DOC, with the narrow exception in § 148-32.1(b) for overcrowding situations (which still does not contemplate house arrest). § 15-6 (with roots going back to the 19th-century case State v. Norwood) says no one is imprisoned except in the county jail unless otherwise provided by law.

A 1985 AG opinion (55 NCAG 21) had already worked through what "local confinement facility" means: § 153A-217(5) defines it as "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." Houses are not in that list.

Reading all those statutes together (the in pari materia canon), the conclusion is that DWI offenders subject to mandatory minimum jail time can serve that time only in a county facility (or DOC under narrow exceptions), and not at home on electronic monitoring. The Legislature had said "imprisonment" and "custody of the Department of Correction or a designated local confinement or treatment facility." Electronic house arrest is neither.

The opinion arrived at a moment when electronic monitoring was emerging as a new technology. Some North Carolina jurisdictions were experimenting with it in other contexts (pre-trial release, lower-level offenses), and the question was whether it could expand into DWI sentencing as a way to ease jail crowding. The AG's answer was no, without a statutory amendment.

Currency note

This opinion was issued in 1989. 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. North Carolina's DWI sentencing framework has been amended substantially since 1989, including the addition of Aggravated Level A1 and revisions to the levels' specific minimums. Electronic monitoring has been authorized in various contexts by subsequent legislation. Whether and how electronic monitoring can substitute for jail in DWI cases today depends on current statute, including any specific authorization for substance-abuse treatment alternatives and the conditions attached.

Background and statutory framework

The "Safe Roads Act" of 1983 set up the Level 1 through Level 5 DWI punishment structure that § 20-179 codified. Each level corresponded to a different aggravating-factor profile, and each level carried a different mandatory minimum jail term. The mandatory minimums were a political response to perceptions that DWI defendants were getting too-light sentences, and the General Assembly wanted real jail time on the table for serious offenders.

The "special probation" mechanism in § 15A-1351(a) is the statutory bridge between the mandatory minimum and the suspended sentence. A judge could suspend the full active prison term but then require the defendant to serve the mandatory minimum as a condition of probation. That suspension structure let the rest of the sentence get worked off through probation conditions like substance abuse treatment, while still satisfying the legislature's demand for real custody time.

The custody-location chain (§ 15A-1351, § 15A-1352, § 15-6) is what the AG used to rule out house arrest. The statutes specified where confinement had to happen, and home is not on the list. Without legislative action to add house arrest as an authorized form of imprisonment for DWI purposes, the courts and DOC could not invent it.

The opinion reflects a broader judicial caution about treating "imprisonment" as a flexible concept. Imprisonment under § 15-6 means physical custody in a jail. Substituting electronic monitoring for jail time would change the substantive nature of the punishment in a way the Legislature had not authorized.

The 1985 opinion the AG cited (55 NCAG 21) had already drawn the line for misdemeanants generally. The 1989 opinion applied the same analysis specifically to DWI cases.

Common questions

Could a DWI defendant on regular probation (not special probation) be ordered to electronic house arrest as a probation condition?

Probation conditions are governed by § 15A-1343, which is more flexible than special probation. The AG opinion addressed only the mandatory minimum jail time required by § 20-179. House arrest as a regular probation condition (in addition to the served mandatory minimum jail time) was a different question the opinion did not directly resolve.

What about weekend service under § 20-179(s)?

Weekend service is jail time served on weekends rather than continuously. It is still time spent in a jail facility, just spread across multiple weekends. The opinion's reasoning about "in a jail" applies to weekend service as well. House arrest spread across multiple weekends would not satisfy the statute either.

Did the AG say anything about the Department of Correction running an electronic monitoring program for DWI offenders?

The opinion did not endorse that approach. § 15A-1351 referenced "Department of Correction or a designated local confinement or treatment facility." A facility-based program (a halfway house, an electronic monitoring program with daily check-ins to a center) might fit the statutory framework depending on how it was structured. Pure home-based monitoring would not.

Could a judge order home detention with conditions stricter than electronic monitoring (no leaving home for any reason)?

The opinion's logic suggests no. The issue was not the strictness of the conditions; it was the location. The statutes specified custody in a DOC or local facility. Home is not such a facility, regardless of how the supervision is structured.

Did this opinion mean rural counties with overcrowded jails had no flexibility on DWI sentencing?

In effect, yes for the mandatory minimum portion. The overcrowding exception in § 148-32.1(b) allowed DOC commitment in limited circumstances but did not authorize alternative confinement. The General Assembly's response to overcrowding was capital improvements and regional facilities, not alternative-to-incarceration programs for DWI mandatory minimums.

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