Credit for Inpatient Treatment in Impaired Driving Cases

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One of the purposes for sentencing for impaired driving, like sentencing generally, is to rehabilitate offenders so that they may be restored to the community as lawful citizens.  Cf. G.S. 15A-1340.12.  The rehabilitative aims of the sentencing scheme for impaired driving are evident in the requirement that offenders obtain substance abuse assessment at treatment as a condition of probation (discussed here) and also in the provisions of G.S. 20-179(k1) that allow a court to order that a defendant serve a term of special probation as an inpatient at a state-operated or licensed facility for the treatment of alcoholism or substance abuse.  The latter provision accords with structured sentencing act provisions that allow a judge to order that a defendant serve a period of special probation at a designated treatment facility.  See G.S. 15A-1351(a).  Unlike its structured sentencing counterpart, G.S. 20-179(k1) explicitly requires the defendant to bear the expense of any treatment unless the trial judge orders that the costs be absorbed by the State. The judge may impose restrictions on the defendant’s ability to leave the premises of the treatment facility and may require that the defendant follow the facility’s rules. G.S. 20-179(k1).

G.S. 20-179(k1) also permits a judge to “credit against the active sentence imposed on a defendant the time the defendant was an inpatient at the treatment facility, provided such treatment occurred after the commission of the offense for which the defendant is being sentenced.”  This provision is subject to a few interpretations. One narrow interpretation of  the provision is that it means only that when a judge orders that a period of imprisonment imposed as a condition of special probation be served at a treatment facility, the judge may credit this time against any suspended sentence that later is activated. Given that the general rules for crediting time served in a treatment facility only award credit for time spent in a state or local institution, such a provision is necessary to allow for credit when the inpatient time is served in a private facility.  Thus, even under this narrow view, G.S. 20-179(k1)’s rules about awarding sentencing credit for inpatient treatment are significantly broader than the rules for awarding such credit to sentences generally, including sentences for offenses involving impaired driving that are not sentenced under G.S. 20-179, such as habitual impaired driving. Cf. 15-196.1 (requiring credit against the minimum and maximum term of a sentence for “the total amount of time a defendant has spent, committed to or in confinement in any State or local correctional, mental, or other institution as a result of the charge that culminated in the sentence.”); State v. Stephenson, ___ N.C. App. ___, 713 S.E.2d 170 (2011) (holding that the defendant was not entitled to credit in structured sentencing case for time spent at Potter’s House, an “independent Christian faith-based rehabilitation program [] not affiliated with or operated by either a State or local government agency”).   This restrictive interpretation of subsection (k1) has two flaws.  First, it renders surplusage language requiring that the credited treatment occur “after the commission of the offense for which the defendant is being sentenced,” since treatment ordered at sentencing always will be completed after the offense.  Second, subsection (k1) makes no reference to sentences subsequently activated upon violation of probation, which would be the logical time at which post-sentencing treatment credit would be ordered.

Alternatively, G.S. 20-179(k1) might be interpreted as permitting a judge to award credit for qualifying inpatient treatment at a licensed facility only against a sentence that imposes “active punishment” as that term is defined by G.S. 15A-1340.11, that is a sentence that requires a term of imprisonment and is not suspended.  Another still-yet broader reading of the provision is that a defendant may receive credit for qualifying inpatient treatment against periods of imprisonment imposed as a condition of special probation as well as against an active sentence.  This interpretation of the provision, which strikes me as the one most likely indicative of the legislature’s intent and is, I believe, the view shared by most practitioners and judges, considers the term “active” in the context of G.S. 20-179(k1) to mean a period of imprisonment rather than “active punishment” pursuant to G.S.  15A-1340.11. The pairing of the credit provision in subsection (k1) with authorization for service of a term of imprisonment imposed a condition of special probation at such a treatment facility provides support for the view that the legislature intended to allow for credit against periods of imprisonment served pursuant to active or probationary sentences.  If this interpretation is correct, then credit awarded for qualifying inpatient treatment may satisfy the minimum terms of imprisonment required for active sentences or as a condition of special probation for each level of impaired driving.  Thus, a defendant who serves 30 days as an inpatient at a licensed treatment facility after committing an impaired driving offense sentenced at Level One, may, in the judge’s discretion, be awarded credit for this time against a term of special probation requiring a term of imprisonment of 30 days.  In this circumstance, the defendant will not be required to serve any time in jail unless she violates conditions of probation and imprisonment is ordered in response to such a violation.

As a practical matter, I wonder how often impaired driving defendants receive inpatient treatment in advance of sentencing and how often judges exercise their discretion to award credit for qualifying time.  If you have insight regarding this matter or thoughts about the legal interpretation set forth above, please share your views via the comment feature.

4 comments on “Credit for Inpatient Treatment in Impaired Driving Cases

  1. thank you for this blog, it helps me greatly. This is a very informative post and would like to share my experience on the given topic of North Carolina Impaired Driving Cases in which credit has been given for Inpatient Treatment towards an active term of imprisonment. A quick background first-I work as a Case Manager Supervisor at FIRST at Blue Ridge, Inc., right outside of Asheville, NC. FIRST a Non-Profit, North Carolina Licensed Therapeutic Community for Chronic Substance Abusers, which operates several programs and levels of care including Short and Long Term Residential/Inpatient Treatment for Men and Women, as well as some population specific programs and services for male and female veterans, women, pregnant women, and women with children. Services for the Spanish speaking are also offered in addition to access to contracted DWI services in both English and Spanish.

    Throughout the years our Short Term (7 to 90 days) and Long Term Program’s (12 to 24 months) have become part of many Intermediate Sentences prescribed by the North Carolina Criminal Justice System and I would say at any given time a minimum of 40% of our population is court-ordered, have a pending court date, have been released to our custody or is involved in one way or another with the Criminal Justice System.

    I spend a lot of time in court rooms as a Case Manager as does our Executive Director, Joseph Martinez, whom happens to have a law degree but does not practice currently. Unfortunately many people are receiving DWI’s these days. In many cases we will have a client that has been advised by their attorney to go to treatment for 7 days or 30 days, etc., if they do not want to go to jail. If an attorney is advising their client to find treatment then the chances are, is that the attorney has had multiple successful outcomes of receiving credit for inpatient treatment against a period of incarceration in sentencing on Level I and II DWI’s. Most of the clients I work with have not yet gone to court for their DWI, and by the time they get to court, having completed our Short Term Program, can walkout with a Level One DWI, sentenced to the minimum mandatory of 30 days in jail, receive credit for that time and unsupervised probation if they have the ability to pay the fines that day in court. Same for a Level Two, the difference being 7 days minimum mandatory, etc. and of course for both levels, anything additionally that the DMV requires. I have also had clients who were sentenced to our program in which the court credited the time at our program towards their sentence. The few times I have seen the described not take place were in cases where the aggravating factors significantly out weighted the mitigating and the individuals record caught up to them-essentially.

    I think the judges have incentive to agree to give this credit, for several reasons. Tax payer money is being saved and most importantly they know that 30 days or 12 months in jail is not going to provide the treatment these people need in order to not be a repeat offender, and isn’t that the ultimate goal? Keep in mind a large percentage of crimes committed are directly related to substance abuse.

    In my experience that as long as the attorney, their client or the treatment facility is familiar with G.S. 20-179(k1) the chances are very good that the court will give the credit. I have seen cases in which a Judge has given 6 months credit on a level I DWI, or sentenced the person to complete 12 months of treatment, etc. The bottom line is that Inpatient Treatment offers the criminal justice system many options with allowances for so called creative punishments. FIRST at Blue Ridge, Inc, is a 24 hour, 7 day a week staff secured facility, in which two probation officers are assigned directly to our facility for Intensive and Regular Supervision. We offer access to continuous alcohol monitoring and of course the treatment. Judges are able to keep tax payer cost down, and cut back on overcrowding in the prison system and ultimately with a well thought out sentence reduce recidivism. Feel free to contact me at davide@firstinc.org.

  2. Thank you, and well put.
    I work for a non-profit facility in Charlotte NC that offers this option for offenders. We’ve provided services for individuals seeking services ranging anywhere from seven days to 60 days inpatient residential (24 hr setting) at an affordable cost. Even though insurance and/or other third part reimbursement usually wont cover this level of care unless however, the offender (consumer) has had a clinical assessment and is deemed appropriate by medical necessity, that’s the only exception I can think of in that case where a 3rd party would pay.

    Check out our Web-site: http://www.mcleodcenter.com/ResidentialDWI.asp

    You might be surprised how inexpensive out program is (per day), compared to other providers that accept self paying clients for any length of stay.

  3. I need help if long term treatment an a long stay at a halfway would for my alcholism would it help me on my court case with a pelony dwikenneth

  4. I need to know if i an get credit for abitual dwi with long term treatment an long stay at a halfway house

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