Jail Credit in DWI Cases

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.