North Carolina Criminal Law NC Criminal Law

The General Assembly just made it a whole lot easier to determine whether a defendant imprisoned for a misdemeanor DWI conviction will serve his or her sentence in jail or prison.  Defendants sentenced to imprisonment for misdemeanor impaired driving on or after January 1, 2015 will spend that time in a local confinement facility—a jail—rather than in prison, regardless of the length of the sentence.

Good riddance? We are policy-neutral here at the School of Government, but I’ll own my aversion to laws that I can’t explain.  And, honestly, I cringe every time I have to explain the current rule.  The starting point is G.S. 20-176(c1) (repealed by S.L. 2014-100 (S 744)), which provides:

Notwithstanding any other provision of law, no person convicted of a misdemeanor for the violation of any provision of this Chapter except G.S. 20-28(a) and (b), G.S. 20-141(j), G.S. 20-141.3(b) and (c), G.S. 20-141.4, or a second or subsequent conviction of G.S. 20-138.1 shall be imprisoned in the State prison system unless the person previously has been imprisoned in a local confinement facility, as defined by G.S. 153A-217(5), for a violation of this Chapter.

Thus, the rule generally applicable to sentences for all Chapter 20 offenses (including DWI) is that terms of imprisonment for active sentences, regardless of length, are served in local confinement facilities rather than in the custody of the Division of Adult Correction (DAC). This rule does not apply to a defendant who previously has been imprisoned in a local confinement facility for a Chapter 20 offense. The general rule also does not apply to convictions for certain offenses, among them a second or subsequent conviction of driving while impaired in violation of G.S. 20-138.1.

Have your eyes glazed over yet? Unfortunately, there’s more.

When an exception to the general rule of local confinement in G.S. 20-176(c1) applies, G.S. 15A-1352, which governs the appropriate place of confinement for criminal offenses generally, establishes the framework for where a term of imprisonment may or must be served. Applying that framework to impaired driving sentences became less straightforward after the legislature created a Statewide Misdemeanant Confinement Program for misdemeanor sentences of more than 90 and up to 180 days, but excluded impaired driving sentences from its purview.  The bottom line appears to be that a person sentenced to imprisonment for a second or subsequent DWI has to serve that time in a local jail if the sentence is 90 days or less.  Judges have discretion regarding the place of confinement for sentences of more than 90 and up to 180 days.  And sentences of 181 days or more must be served in a DAC facility.

Yet another set of rules applies to imprisonment served as a condition of special probation. Pursuant to G.S. 15A-1351(a), noncontinuous periods of special probation for DWI as well as other criminal offenses may be served only in local confinement or treatment facilities.  But if the special probation is ordered for a continuous period (say, 30 days), the judge has discretion over whether to order the defendant confined to jail or prison.

The new regime.  New rules apply to misdemeanor impaired driving sentences imposed on or after January 1, 2015.  New G.S. 15A-1352(f) provides that a person sentenced to imprisonment of any duration for impaired driving under G.S. 20-138.1, other than imprisonment required as a condition of special probation, must be committed to the Statewide Misdemeanant Confinement Program (SMCP). Under this program—established in 2011 pursuant to G.S. 148-32.1—the North Carolina Sheriffs’ Association identifies space in local confinement facilities that is available for housing misdemeanants.  The program initially did not apply to sentences for misdemeanor impaired driving or to other misdemeanants serving sentences of more than 180 days.  Sec. 16C.1.(a) of S.L. 2014-100 amends G.S. 15A-1352(a) to require that a person sentenced to imprisonment for a misdemeanor or for nonpayment of a fine for conviction of a misdemeanor must be committed to the SMCP if the sentence is for 91 days or more. Sentences of 90 days or less for such misdemeanor convictions (other than DWI) must be served in a local confinement facility.  The changes applicable to misdemeanor sentences other than DWI apply to persons sentenced to imprisonment on or after October 1, 2014.

The bottom line for active terms of imprisonment for misdemeanor DWI under the new rule is that, no matter their length, they will be served through the SMCP.  That means that defendants will be housed in a local jail, thought it may not be the jail in the county of conviction.

What about special probation?  Under a sentence of special probation, a court may suspend the term of imprisonment and place the defendant on probation, requiring that the defendant submit to a period of imprisonment.  For misdemeanor impaired driving sentences imposed on or after January 1, 2015, all imprisonment imposed as a condition of special probation must be served in a designated local confinement or treatment facility—regardless of whether the imprisonment is for continuous or non-continuous periods.  The same rule applies to special probation for misdemeanors generally for sentences imposed on or after October 1, 2014.

Thus, all special probation (or split sentences) for misdemeanors–DWI and otherwise—will be served in a local confinement facility rather than a DAC facility under amended G.S. 15A-1351(a).

While the jury is out on whether changes to the place of confinement rules will save money, allow for a more efficient allocation of resources, or provide DWI inmates with the treatment and services they need, the amendments undoubtedly make the law easier to explain.