Jail Credit in DWI Cases

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Last week I got drawn into a discussion about a North Carolina local government official convicted of DWI. The question was whether he was getting “special treatment” when his 60-day sentences were cut in half to 30 days. As most readers of this blog know, there’s nothing special about that: most active DWI sentences (except for aggravated level one) are effectively cut in half by Good Time, pursuant to N.C. Department of Public Safety administrative policy. Today’s post considers a related wrinkle: when a DWI defendant has jail credit, should that credit be applied before or after the sentence is “cut in half”?

First, a quick word about the way Good Time credit works. Though it is technically a reward for good behavior, the long-time practice of the Division of Adult Correction is to apply the credit at the outset, on the assumption that the inmate will serve the entire sentence without infraction. Theoretically, an inmate who then misbehaves during his or her term of imprisonment will have days added back to the sentence, to account for the extra days that were awarded in anticipation of good behavior that didn’t actually happen. I say theoretically because I have literally never heard of an inmate having time added back to his or her DWI sentence for bad behavior. (If you are a prison or jail official who has seen this happen, please post a comment.)

Back to the jail credit issue. Whether jail credit is applied before or after DAC cuts the sentence in half based on anticipatory Good Time can make a big difference in how much time the defendant will serve.

For example, suppose the county commissioner mentioned above had 10 days of pretrial jail credit. He received a 60-day sentence. If the sentence is “cut in half” to 30 days before the 10 days of jail credit are subtracted, he will have 20 days left to serve [(60/2) – 10 = 20]. Let’s call that the cut, then credit approach. If the jail credit is subtracted from the full 60-day sentence before the remainder is cut in half, he will have 25 days lefts to serve [(60-10)/2 = 25]. I’ll call that credit, then cut.

Whatever you call it, the order of operations matters. And the issue can be magnified when you’re talking about a longer sentence, particularly at the probation revocation stage. Suppose a probationer with a 12-month suspended sentence has, at the point of revocation, already served a 30-day split and a 90-day CRV. If you cut the sentence in half to 6 months and then subtract the 120 days of jail credit, the defendant has 2 months left to serve. If you subtract the 120 days first and then cut the remainder in half, the defendant has 4 months left to serve. Add a 90-day stint at DART-Cherry into the mix, and the first approach gets you to “time served,” while the second leaves 2.5 months to go.

Surely the defendant would prefer the cut, then credit approach. I have received conflicting reports over the years, but I believe that is the approach DAC takes. Again, please post a comment to correct me if you know otherwise.

The ultimate legal issue at play is whether the defendant should get Good Time credit for pretrial or other creditable confinement. When you cut, then credit, you are awarding Good Time to the jail credit—you’re giving it double effect by halving the sentence to which it applies. By contrast, when you credit, then cut you are applying Good Time only to the post-conviction (or post-activation) sentence left to be served.

For the most part, the governing statutes aren’t really clear on which approach is proper, and administrative regulations don’t address the issue. If Good Time is premised on good behavior, I see no philosophical objection to awarding it for good behavior before trial just as it is awarded during post-conviction incarceration.

There is, however, a legal problem with applying the cut, then credit approach across the board. If, at the point of revocation, a DWI probationer has jail credit stemming from a split sentence, Good Time may not be awarded based on those days. G.S. 148-13(f) prohibits the award of any sentence reduction credit to a term of special probation. If, at the point of revocation, you cut the remaining sentence in half before subtracting the split sentence credit, you just awarded Good Time based on the split sentence days.

11 comments on “Jail Credit in DWI Cases

  1. jail never cured anyone of anything,. drinking is a medical problem.

    • True perhaps , but if I had a ” medical ” condition that made it unsafe for me to drive , I would seek treatment and/or not drive . Jail is the only mechanism we have that compels people to face the consequences of not seeking ” medical ” attention to alleviate the condition that causes societal risk . If someone has epilepsy or narcolepsy they too can refuse treatment , but they cannot place others at risk by driving and endangering others . Facing the choice of jail or not driving while intoxicated gives those with ” medical ” conditions a choice…something the dead and maimed victims of impaired driving did not have .

  2. I have always thought that it was the sentence that was cut in half, not the remaining sentence after conviction. Either way,whether you credit first or cut first it comes out the same, so long as the jail time you have already served is actually credited against the time you must serve in jail. What you are talking about is allotting some of the already-served-time into the cut time, which seems illogical to me. If the time is cut, you do not have to serve it. If you already served it, you must be credited for it. If you allot the already-served time into the cut time, you have prevented the prisoner from being credited with that already-served time, so you have to credit the already-served time against the sentence that actually must be served. If you credit first and then cut, you must keep all of the credit days on the side of the cut that is to be served, not on the side that does not need to be served.

    So if you have a 60-day sentence and have served 10 days and the sentence is cut in half, you reasonably should have 20 days left to serve. If the remaining sentence is cut in half, rather than changing the days left to serve to 25, that should give the prisoner double (triple?) duty on some of is days, leaving his time left to serve at 15: His remaining sentence is 50 days before the cut. Cutting that in half leaves 25 days. You can’t credit jail time on any of the cut days as explained above, so the 10 days must be credited against the 25 days, leaving 15 days left to serve. As unreasonable as that approach yielding 15 days to serve is, it is not as bad as the one yielding 25 days left to serve.

  3. Maybe DWI convicts do not misbehave while incarcerated. It’s not as if they were convicted of hurting anyone or anyone’s property. They were convicted of doing something that increases the risk of accidentally hurting someone. Maybe people convicted of deliberately hurting someone or someone’s property are more likely to act up while incarcerated…

  4. I think the amount of credit applied should be separately considered in each case.

  5. My son was sentenced 24 mos. for aggravated level 1. Before court he checked himself into rehab for 54 days and at home he got a device that he had to blow into 3 times a day and it took his picture. He also attended AA. None of this helped him. He is 45 and I am 75 in very poor health. It breaks my heart that he is serving time and his sentence can’t be reduced. Is there anything at all that could help him? I need his help so much at home. Alcoholism is a disease just like cancer an he admitted to needing help. What good does being locked up do? He needs more programs to go to and to get back to AA.

  6. “What good does being locked up do?”

    It protects the rest of us from him. It could teach him that driving drunk is unwise and unsafe.

  7. Being locked up and just sitting around does nothing for him. The judge himself said AA was the only thing that could help him. But AA is not being offered to him. He needs to be going to programs designed to help, not just sitting around! Too much time on your hands in jail is not good for anyone.

  8. My daughter was sentenced to 90 days for a level 2 DWI misdemeanor which she had already served 7 days at time of convicted, her attorney told her she had 45 days to serve in jail yet the jail is telling her she has 90 days minus the 7 she already served. Which is correct?

    • Time doesn’t get cut until they become state property. If she’s in the county, she’ll serve all of it.

  9. Rodney, has a 90 day active sentence to serve. Conviction 2016, charged 2014. Activated sentence 2018.

    Rodney goes to county for ten days. Then sent to state for processing. He serves 14 days there. They freak out, throw him in the hole. His county picks him up the same day. He serves ten more days in county and is released.

    The sentence was amended by the state. He served 38 days with two days pre-trial. Basically it was 40 days, he was released 50 days early for a level one DUI.

    How is that possible?

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