San Jose DUI Attorney Resource Center (408) 283-0574

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If you have been arrested for a DUI, want to learn more about DUI California law or are simply looking for a San Jose DUI attorney, this blog is for you.  DUI California law can be complex, confusing and oftentimes counter-intuitive.  We hope to simplify DUI California law so that you can make the right decisions and at the right time.  Please read the disclaimer at the bottom of each page carefully before you act.  This blog is written and edited by Leo Reilly, a San Jose DUI attorney.

There are several ways you can find the answers you are looking for.

  • Start with the Categories list on the right side of this page and see if you can find the topic that fits your question.
  • If you cannot, then feel free to call us at (408) 283-0574 and we will try to answer your question at no cost.
  • Also check out our You Tube Channel–DUI 101, which you can find on the menu bar above.  We have a collection of video tutorials that can provide you with more information about DUI and DMV law.
  • Check out our Resources and Links page to find the DMV Hearing Request Form, sample DMV driving tests and links to the DMV and other sites.

Finally, if you have any questions or comments, or simply want to speak with a San Jose DUI attorney, you can reach us through our Contact Us page or as follows:

Leo P. Reilly
Attorney at Law
(408) 283-0574

California DUI Law

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California DUI law is similar in many respects to DUI law in the rest of the country.  For one thing,  every state DUI law in the country shares the same format with California DUI Law–they are all based on two alternative counts.  That means that you are charged with two separate crimes, however because these are alternative counts, you can only be convicted on one of them.

Of the two counts, the first is called the “driving under the influence” or DUI count, and the other is called the “per se” count.

The DUI count makes it against the law to drive under the influence of alcohol.  The “per se” count makes it against the law to drive with a BAC of 0.08 or higher.

In California courtrooms you will hear these counts referred to by the judge and the attorneys as:

  • the “a” count, for Vehicle Code Section 23152(a)–the DUI count;
  • and the “b” count, for Vehicle Code section 23152(b)– the “per se” count.

You will find these two counts referred to time and again in the various Vehicle Code sections that deal with California DUIs.

If you are unfortunate enough to be arrested on federal land, you will have to appear in Federal District Court.    Check this short blog on Federal DUI Law.

How to Stay Out of DUI County Jail- The City Jail Option

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If you are concerned about ending up in jail, there is one way to do your time for a DUI county jail sentence that is safer and more pleasant than going into county.  It is called “City Jail” and it is a popular alternative for film stars and the rich.  Don’t be discouraged.  The system seems to be affordable for everyone–you just have to shop around.  Read further before you write this alternative off.

So what is “City Jail”?  Just what it says it is.  It is jail but it is run by the City and not the county. Many cities in LA and Orange County are opening up their jails to people who would otherwise end up in County…for a fee.  It is something of a profit center for strapped cities.  And its worth it if you can pay the price, which, depending on how much time you have to do, could be considerable.  At city jail, the food is better, the people are nicer–especially the inmates–you have more range of motion (many city police departments will even let you leave the grounds) and you can do your time safely and with no trouble.

Don’t get me wrong.  City jail is not like a stay at the Westin Hotel.  They won’t put a mint on your pillow.  But it is far better than doing time in LA County Jail.

Currently, city jail is not available in Northern California.  However, if you are prepared to do your time in LA or Orange County, you can get a court order placing you in City Jail in LA or Orange Counties.

Before you go for it, there are several points to consider:

1. You will need a court order to do your time in a city jail, if you live in Orange or LA county.  If you live out-of-county, you will need the court to order you to be permitted to do out-of-county jail as well as order you into the specific city jail you choose.  So, ask the judge for two things before you enter a plea of guilty or no contest:

  • An order permitting you to do your time in [Orange] [Los Angeles] county.
  • An order permitting you to do your time in the specific city jail you have chosen.

Finally, make sure BEFORE you enter a plea, that you have been accepted into the program.

2. You must submit an application in order to be accepted to do your time in city jail.  Be advised that there are daily fees for city jail along with booking charges and additional miscellaneous fees.  Verify the cost before you commit by asking the court for an order sentencing you to city jail.

3.  You may need to justify doing your time out of county.  Some judges don’t care if you do your time in their county or not.  Others care deeply.  Is there a reason you need to be in LA or Orange County?  Is there a relative who lives there who relies on you for care?  Are you planning to relocate to Southern California in the near future?

4. All city jails require a medical clearance.  Medical problems will probably prevent you from being accepted, although some jails can handle certain types of medical issues.  I have a client who was accepted into one city jail, even though he was an insulin dependent diabetic.  Don’t be a defeatist.  If you cannot get into one city jail, try another.

5.  Prices and terms vary.  Some city jails are pretty strict, but cheaper.  Others are more relaxed but expensive.  The prices run as low as free (Newport Beach at the time this was written) and as high as $175 a day (Hermosa Beach).  The average runs around $75-$100 a day for Pay N Stay.

6.  Should I do “work furlough” in city jail rather than for the County Sheriff?  It’s up to you, but I wouldn’t.  A film star might.  For my money, why pay the fee?  Work furlough is relatively benign even at county.  You will spend your day (if you aren’t sent home early) picking up trash on the side of the freeway or doing sundry chores.  In most counties you have to pay a fee to do work release, but the fee is modest and worth the price of not spending a whole day and night in jail.

ORANGE COUNTY

1.  HUNTINGTON BEACH CITY JAIL
714-536-5691
714-526-5694
Fax 714-536-5698

2. FULLERTON CITY JAIL  (714) 738-6722

3. HAWTHORNE CITY JAIL  310-349-2775.

4.  NEWPORT BEACH CITY JAIL  949.644.3672

5.  LA HABRA
Lt. Swain (562) 905-9758
Sgt J. Mchail (562) 905-9689

5.  ANAHEIM POLICE DEPT.  (714) 765-1523 office  (714) 765-1540 fax
Michael Richardson
Correctional Facility Manager
mirichardson@anaheim.net

6.  SEAL BEACH CITY JAIL
Office: (562) 799 4100 Ext. 1117
Fax: (562) 493 0634
trond@ci.seal beach.ca.us

 

LOS ANGELES COUNTY

1. Azusa (626)812-3200

2 Burbank (818)238-3000

3. Culver City (310)837-1221

4. Gardena (310)217-9600

5. Glendale (818)548-4840

6. Glendora (626)914-8250

7. Hawthorne Officer John Dixon at 310-349-2775

8. Hermosa Beach (310 )318-0360, contact Angela Jenentz $175/day

9. Huntington Park (323 )584-6254

10. La Verne (909 )596-1913

11. Montebello (323 )887-1212

12. Monterey Park (626)573-1311

13. Pasadena (626 )744-4501, (626) 744-4616

14. Redondo Beach (310) 379-2477

15. San Fernando (818 ) 898-1267

16. Torrance (310 ) 328-3456

17. Monrovia (626) 256-8000 – Contact – court officer Ortiz

Judges DUI Benchguide

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This is the California Judges DUI Benchguide for 2009.  This manual will give you the Judge’s perspective of your case.  Judge’s Benchguides are something that every judge gets when they go to a new courtroom that focuses on a new area of the law.  There are Benchguides for family law, felony criminal and domestic violence, to name only a few.  The Benchguide does not tell the judge how he or she should sentence you–the local County Court judges (as a group) set the standards for that–but it does give you an excellent overview of the process, and in as much depth as you want.  Another must-read book.

 

California CHP DUI Manual

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The California CHP DUI Enforcement Manual is the manual that all California Highway Patrol officers must follow in conducting a DUI investigation. The California CHP DUI Manual covers the initial stop and grounds for a stop, the initial observation of the suspect, how to question a suspect, how to conduct field sobriety tests, how to conduct a DUID (Driving Under the Influence of Drugs) investigation, and much more.

If a CHP officer does not adhere to the policies and procedures set forth by his own department, then you can conduct a powerful cross-examination of him at trial or in a hearing.  You can even use it to get evidence thrown out of court, negotiate a deal or get the case dismissed prior to trial.  I end up using this in every trial or hearing involving a CHP officer.

Be warned!  This is a large file.  If you don’t have much bandwith, call us.  We will send you a copy.

California District Attorney DUI Manual

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This California District Attorney DUI Manual was written by district attorneys for district attorneys.  It  instructs California prosecutors on how to try DUI cases.  A must-read for any DUI Attorney.  Much of this manual actually provides questions for examination and cross-examination of witnesses.  Extremely valuable in preparing your clients to give testimony.  This is a large file, so please be patient when downloading.  It is in an Adobe Acrobat pdf format.

Problems with Roadside Breathalyzer Tests

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Alcosensor IV

Alcosensor IV

PAS Breath Machines- An Introduction

In any DUI investigation, there are typically two types of breath tests that are done. One is commonly referred to as a PAS test (“Preliminary Alcohol Screening” Test), often called a breathalyzer, and the other is referred to as a “chemical” breath test.

This article focuses on problems with roadside, so-called breathalyzer tests (PAS tests).

To begin with, you should know that PAS tests and chemical breath tests are very different in terms of (1) what they prove, (2) how they work and (3) how reliable they are.  The bottom-line is that a PAS test doesn’t prove much, doesn’t work well and is unreliable.  Chemical breath tests are better, but not as accurate as a blood test.

The PAS test is the roadside breathalyzer test.  It is less reliable (see below) and is only supposed to be used to determine if there is alcohol in your blood, not what your BAC is. The chemical breath test is a more sophisticated breath testing device.  It is usually given at the station although a few counties now have chemical roadside breath tests, called “evidentiary PAS machines” meaning that their readings of your BAC can be used as evidence at court, unlike a normal PAS machine.  Evidentiary PAS machines should be avoided whenever possible.

Alcotest 7410 Evidentiary PAS Machine

Alcotest 7410 Evidentiary PAS Machine

PAS TEST

The first breath test that you will be offered in what is commonly referred to as a PAS test. California Vehicle Code Section 23612(h) allows for a law enforcement officer to use a “preliminary alcohol screening test” as an additional Field Sobriety Test and investigatory tool to use in a DUI investigation. Before you are offered this test, the officer is supposed to give you a “PAS admonition”. Here is the admonition:

“P.A.S Admonition: I am requesting that you take a preliminary alcohol screening test to further assist me in determining whether you are under the influence of alcohol. You may refuse to take this test; however, this is not an implied consent test and if arrested, you will be required to give a sample of your blood, breath or urine for the purpose of determining the actual alcoholic and drug content of your blood.”

So we learn two things from this admonition: first, you don’t have to take this test—the PAS test is voluntary, unless you are required to take it as a condition of probation from a previous conviction; second, another test—a so-called “chemical” test—is coming.

Problems with the PAS test

Alcosensor V

Alcosensor V

Because you have the option to take the PAS test or refuse it, there are some things that you should know about this device.

Problem 1. The machine isn’t very accurate.

By law, the results of a PAS test cannot be used to establish your BAC. They are designed to detect the presence of alcohol—that is all. Only a chemical test can determine your BAC with any meaningful accuracy.

During 2011, the Santa Clara County District Attorney’s office ordered a review of over 600 DUI arrests occurring between October 2010 and April of 2011 because an AlcoSensor V PAS device operated by the San Jose Police Department was reading falsely and was seriously out of calibration. Since then, all AlcoSensor V machines were taken out of service and replaced by the older, and apparently more reliable AlcoSensor IV. And in a case that I had in Palo Alto Superior Court, the calibration records for an AlcoSensor IV used by the Palo Alto Police Department was out of calibration for nine of twelve months. And it was reading falsely when my client blew into it.

For all of the reasons below, you should never rely on the results of a PAS machine without additional evidence.

Problem 2. A PAS machine runs on a battery.

And batteries run down. And a run down battery will affect the accuracy of the machines report. Very few PAS devices keep a record of what the battery charge is on the machine when you blow into it. One would think that at a minimum, the device would shut down when the battery charge was low, but few do. And very few cops—count them on one hand—write down what the battery charge was in their police report.  I have seen one police report with the battery charge in four years of practicing law.

Problem 3. A PAS machine only tests your breath with a single fuel cell.

A chemical breath test is supposed to test your breath with two separate devices at the same time—an electrochemical fuel cell and an infrared detector. The PAS device only uses an electrochemical fuel cell. The results of the two tests have to be within a range of 0.02 or the test has to be re-done or the machine replaced. This added verification is missing from a PAS device.  If the fuel cell is reading incorrectly, there is no way to know without a separate test or a complete retest of the machine as a whole.

Problem 4. A PAS machine doesn’t have a slope detector, and it needs one to be accurate.

When you blow into a breath machine, first air from your mouth enters the machine, then your throat, esophagus, upper lungs, etc down to the air at the base of your lungs. It is the air above the aveolar sacs at the base of your lungs that gives you the basis for your BAC. The problem is that many machines will include the alcohol that is being blown into the machine from your mouth breath (see GERD and mouth breath alcohol) and that will give you a false high.

Chemical breath machines have a computer program called a “slope detector” which detects the elevated high BAC that the machine reads at the beginning of a blow, and eliminates that false high. PAS machines cannot do this and will report the mouth breath alcohol in your BAC results.

Problem 5. The PAS machine is portable.

It has to be. It is supposed to be used in the field. But this creates a problem. Any PAS machine is going to be subject to the same abuse that any other handheld device receives. PAS machines get dropped, left in hot cars, left in cold cars, coffee gets spilled on them, they get sat on, or their batteries run down, to name just a few. Add to this the fact that a breath machine is a delicate, carefully calibrated and highly sensitive machine, and you have a recipe for disaster.

Problem 6.  The PAS machine shares all of the limitations of all breath machines:

When it comes to an accurate reading of someone’s BAC, there is no substitute for a blood test. Of course, you may be in a situation where you don’t want an accurate reading, but if you are innocent, then a blood test is always the best measure of your BAC. There are a number of reasons for this and they have to do with fundamental problems in the design of all breath machines.  We have enumerated them here.

Legal Limitations to a PAS device

  1. It is easy for an expert to attack
  2. It cannot be introduced into evidence at trial for the purpose of showing what your actual BAC is. It can only be introduced for the purpose of showing that there was alcohol in your blood.

 So why would you want to take a PAS test?

The only reason I can think of, for taking a PAS test is to prove that you have rising blood alcohol. Without a PAS test, you will lose the ability to prove that your blood alcohol was rising and that it was lower than a 0.08 at the actual time of driving. If you drank (from start to finish) during the ½ to one-hour before the stop, then you almost definitely will have rising blood alcohol. A PAS test could prove this.  Without the PAS test, there is no evidence of rising blood alcohol.

What is an evidentiary PAS machine?

Evidentiary PAS machines provide the court with a BAC that can be entered into evidence–unlike a normal PAS machine, which can only prove that there was alcohol in your blood.  These new machines are basically chemical tests that are done in the field.  The problem, again, is the same as with regular PAS devices–portable devices are inherently more unreliable.

The idea behind the evidentiary PAS machine is that it will provide a breath test close to the time of your driving that is more reliable than a PAS test, and more compelling to a jury.  Remember, unlike a PAS test, an evidentiary PAS test can be used to establish your BAC in court.  And because these tests are administered shortly after you were driving, they provide compelling evidence as to what your BAC was at the time you were driving–at least there is a strong bias in that direction.  Currently the Alcotest 7410 is the main evidentiary PAS machine in the field in California, and it is only used in select locations (Central Valley, Santa Cruz County, and a few other counties).

One more time…evidentiary PAS tests should be avoided.  Ask for a blood test instead.  First, the evidentiary PAS device presumes to provide chemical evidence of your BAC from a machine that is portable, battery operated and often out of calibration.  Second, unlike a chemical breath test at the station, the evidentiary PAS device presumes to tell the court what your BAC was close to the time of driving, eliminating any rising blood alcohol defense.  Third, these machines have not had enough time in the field to provide any evidence as to their actual reliability in the field.  It always happens that new breath machines are first hailed as infallible, then brought gradually under more scrutiny until the truth comes out.  At present, all we are left with is the manufacturer’s manual (and limited warranty!).  But all of the problems with breath machines remain.  These machines are hardly something that you can rely on with confidence.

Problems with Breath Alcohol Testing Machines

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Old Breath Machines – Breathalyzers

First, let’s be clear.  They don’t call them “breathalyzers” anymore.  The roadside breath test is called a PAS test, and the test at the station is called a “Chemical Breath Test.” Now that this common problem in nomenclature is taken care of, what are the problems with breath alcohol testing machines?

Non-specific analysis–the inability of the machine to differentiate alcohol from other similar compounds–is a problem common to all breath machines. The only difference is how badly they mistake other compounds with ethyl alcohol and how many compounds they cannot differentiate from alcohol. Put simply, design of the machine is everything and the design of many breath machines leaves much to be desired.

The oldest breath machines (commonly referred to as “breathalyzers” and no longer in use) transfer your breath through a solution of potassium dichromate., This oxidizes ethanol into acetic acid, and alters its color in the process. A monochromatic light beam is then passed through this sample, and a detector reads the change in intensity of the light beam (and, hence, the change in color), which is used to calculate the percentage of alcohol in the breath. However, since potassium dichromate is a strong oxidizer, numerous alcohol groups can be oxidized by it, producing false positives.

Infrared Breath Machines and Non-Specific Analysis

Breathalyzers have been replaced by machines that test your BAC using two tests- infrared technology, and an electrochemical fuel cell.  Infrared-based breath machines project an infrared beam of radiation through the captured breath that you have blown into the breath machine’s sample chamber. Light projected by the infrared beam gets absorbed by alcohol in the chamber, dimming the light at the other end of the chamber. The dimmer the light (i.e. the more light absorbed by alcohol) the higher your BAC. Put another way, the more light that is absorbed by compounds containing the alcohol group, the less light reaches the detector on the other side—and thus the higher the reading.

The problem is that many types of chemicals have an absorbance factor that is similar to alcohol, and can be confused for alcohol in many infrared machines. Acetone, aromatic rings, ketones and carboxylic acids can give similar absorbance readings to ethyl alcohol.

Interfering Compounds

Some natural and volatile interfering compounds mimic ethyl alcohol. Acetone and ketones are the most common. For example, the National Highway Traffic Safety Administration (NHTSA) has found that dieters and diabetics may have acetone levels hundreds or even thousand of times higher than those in others. Acetone is one of the many substances that can be falsely identified as ethyl alcohol by some breath machines. However, The manufacturers of many fuel cell based systems claim them to be acetone specific and are are also claimed to be non-responsive to substances like acetone.  And, in truth, acetone does not appear to pose much of a problem for more modern machines like the Draegar 7110.

False positives can be generated in other ways as well.  For example, a study in Spain showed that metered-dose inhalers (MDIs) used by asthmatics can also cause false positives in breath machines.

Substances in the environment can also lead to false BAC readings. For example, methyl tert-butyl ether (MTBE), a common gasoline additive, has been alleged anecdotally to cause false positives in persons exposed to it.  (If you recently used your mouth to siphon gasoline, then you are at risk of a false reading for alcohol in your blood.)

Painters, building contractors, employees at body shops and other workplaces that expose people to fumes from paints, lacquers and fuels can easily generate erroneous BAC results. Causes include compounds found in lacquer, paint remover, celluloid, gasoline, and cleaning fluids, especially ethers, alcohols, and other volatile compounds.

Partition Ratios

Breath machines operate on the assumption that the subject being tested has a 2100-to-1 partition ratio- which is to say that for every 1 part of ethyl alcohol at the base of your lungs there are 2100 parts in your blood.  But this ratio is just an average.  .

In fact, most individuals have a partition ratio that is different from the legal “average” of 1 to 2100.  And as many as 40% of the people who blow into a roadside breath machine have their actual BAC overstated.

In fact, your actual partition ratio can be as low as 1-900 and as high as 1-3100.  And the lower your partition ratio, the greater the breath machine is overstating your BAC. If your partition ratio is 1-1000 then any breath machine will be reporting your BAC as double what it actually is.

Not only do partition ratios vary from person to person, they can also vary in the same person over time.

Partition ratio evidence used to be prohibited in court—it couldn’t even be mentioned before a jury—but with a new California Supreme Court decision it can now be used in any case where you are charged with the “a” count (Vehicle Code 23152(a)) of “driving under the influence of alcohol.”

Mouth Breath Alcohol
A common common cause of false high BAC readings is the existence of mouth breath alcohol. In analyzing a subject’s breath sample, the breath machine assumes that the alcohol that it is measuring comes from alveolar air—that is, air exhaled from deep within your lungs. However, alcohol may have come from the mouth, throat or stomach, for any  number of reasons, including GERD, acid reflux, burping, belching or heartburn. To help guard against mouth-alcohol contamination, certified breath-test operators are supposed  to, but rarely do, observe a test subject carefully for at least 15–20 minutes before administering the test.

The problem with mouth alcohol being analyzed by the breath machine is that it was not absorbed from the stomach and intestines to the blood and lungs. In other words, the machine’s computer is mistakenly applying the partition ratio (see above) and multiplying the result. Consequently, a very tiny amount of alcohol from the mouth, throat or stomach can have a significant impact on the breath-alcohol reading.

Aside from drinking the most common source of mouth alcohol is from belching or burping. When you belch, the liquids and/or gases from the stomach—including any alcohol—rises up into the soft tissue of the esophagus and oral cavity, where it stays until it is dissipated. This is not a defense to be idly dismissed.

The American Medical Association concludes in its Manual for Chemical Tests for Intoxication (1959): “True reactions with alcohol in expired breath from sources other than the alveolar air (eructation, regurgitation, vomiting) will, of course, vitiate the breath alcohol results.” For this reason, police officers are supposed to keep a DUI suspect under continuous observation for at least 15 minutes prior to administering a breath test.  What constitutes “continuous observation” leaves much to be desired, however.  If you are seated in the back of a squad car and the cop is driving, he cannot be watching you.  The courts have still held, however, that this constitutes “continuous observation.”

Breath machines such as the Draegar Intoximeter 7110, the Intoxilyzer 5000 and the Datamaster also feature a so-called “slope detector” that is supposed to find and discount any “spike” in your BAC while you are blowing. This detector is supposed to detect any decrease in alcohol concentration of 0.006 g per 210 L of breath in 0.6 second, a condition indicative of residual mouth alcohol, and will result in an “invalid sample” warning to the operator, notifying the operator of the presence of the residual mouth alcohol.  Notice, however, that the slope detector is only looking for a short, brief (0.6 second) spike in your BAC.  In many cases, however, mouth breath alcohol can be continuously blown through the machine’s mouthpiece for over 10 seconds.  Mouthwash, dentures, gum disease, particles stuck in your teeth containing alcohol–all of these can cause mouth breath alcohol to enter the breath machine for the entire blow.

PAS machines do not have slope detectors.  Thus, the appearance of mouth breath alcohol will invalidate any PAS test.

Acid Reflux

Acid reflux, or gastroesophageal reflux disease, can result in exaggerated false highs. The stomach is normally separated from the throat by a valve, but when this valve is herniated or otherwise rendered inoperable, there is nothing to stop the liquid contents in the stomach from rising and permeating the esophagus and mouth. And a slope detector will not “detect” this continuous condition.

Other Problems with Breath Machines

  • Dentures-  Mouth breath alcohol can also be caused by dentures. Of course, dentures will trap alcohol.
  • Periodontal disease can also create pockets in the gums which will contain the alcohol for longer periods.
  • Passionate kissing with a person who is intoxicated can cause elevated highs.
  • Mouthwash or breath fresheners such as Binaca can also cause false highs. Mouthwash and/or breath freshener are particularly toxic to breath tests not the least because people use these to disguise the smell of alcohol when the cops pull them over and they are loaded with alcohol.  The worst is Listerine with an alcohol content of 27% by volume.

Rising Blood Alcohol

Click here to learn about rising blood alcohol.

 

California DUI Penalties- How to Stay Out of Jail

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The general rule is that jail time is rarely a problem for a first offender with no extenuating circumstances.  In terms of California DUI penalties, there is very rarely, if ever, jail time.  Instead, you are looking at the Sheriff’s Work Program in your county.  This involves eight-hours of labor (picking up trash on the side of the freeway, watering plants, etc.)  You get a day full credit for only eight hours of work, but there is no “good time”  (time off for good behavior) as there is in jail.

Sometimes jail time is probable or even inevitable, even for a first offender.  For example, if you are arrested for speeding while DUI (30 mph over the posted speed limit on a freeway, twenty mph over the posted speed limit on a city street) or if you are arrested with a child 14 years or younger in the car while you are DUI, then jail is a distinct possibility.

If this is your third or fourth DUI in ten years, jail is also likely to be included in your sentence.  If you are facing jail time there are a variety of ways that you can seek to avoid jail time.  Of course, your ability to avoid doing jail time is going to be dependent on the seriousness of the offense that you are charged with and the number of priors that you have.  Let’s look first at the alternatives to jail time and then discuss the likelihood of your being successful.

What will keep me out of jail?  It depends.

1.  Residential Treatment (Rehab):  This is the most common way to get out of jail time.  But you have to do this right.  First, “residential” means 24 hour lockdown.  You enter rehab and you don’t leave without an escort for the entire time you are there.  The court will need a letter from the program detailing your restrictions and obligations in order to participate in the program.  Second, get an order from the Court first.  If the court orders you into residential while your case is being processed, then you are entitled to day-for-day credit for residential.  If you don’t get a court order in advance, you will probably get some credit but not what you would have gotten with a court order.  To get a court order, simply tell the judge that you want to do rehab, and that it would help if he would order you into the program.  Chances are very good that the judge will comply.  Finally, be careful to avoid residential treatment centers that have problems or are unusual in their treatment therapy.  Unusual treatment programs, such as Scientology, herbalism, sweat lodges, etc. always raise eyebrows and can cause you to run the risk that the Court will simply order you into jail.  Remember, they don’t have to allow you an alternative to jail time.

2. Rehab Work-release and/or Out-patient:  Harder to get.  Judges are loathe to give you day-for-day credit for participating in a work-release or out-patient program.  But I have gotten this kind of treatment.  In one case, I had a client who was guilty of a DUI with injury to another person.  It was charged by the D.A. as a felony.  Because of my client’s age (he was in his early 70′s) the judge agreed to give him day-for-day credit for participating in a work-release program at his local residential treatment center.

3.  “City” or “Private” Jail:  In a few counties, Los Angeles and Orange Counties being the most notable, you can (with a court order) do your time in what is commonly referred to as “city jail”, like Hawthorne, rather than county jail.

Why?  The food is better, the surroundings are better, and the people…are better.  You are still in jail, but those differences can make all of the difference in the world.  If, for any reason, you feel that you will have a harder time than most in jail then consider city jail in L.A.  You will be in the custody of the City Police rather than the County Sheriff or Marshall.  And that means alot.  Take the county jail experience and improve it by a factor of four and you have city jail  There is a daily cost for this privilege.  If you are considering private jail, make sure that you get a court order allowing you to go there. If you do not live in LA or Orange Counties, then get a court order to allow you to do your time in Orange or LA County and specifically allowing you to do your time in a specific city jail.  We have a list appended for your convenience.

There are certain downsides to City Jail.  The court may not give you credit for “good time”–currently one-third–meaning that if you are sentenced to nine days, you end up doing six.  Also, you almost certainly not get released early because of overcrowding.  In LA and Orange County, City Jail is a nice extra source of revenue that they won’t give up unnecessarily.

If you live in a county where city jail is not allowed, see if you can get the judge to allow you to do your time in Southern California under the custody of whatever City Police Department you choose.  Contact the city jail and get literature showing how the private jail works, and bring it with you to court.  This will help to persuade a judge in a county outside of LA that city jail is an appropriate alternative to county.  And remind the judge that you still do the time and the county doesn’t have to pick up the bill or release you early if there is overcrowding.

4.  Sheriff’s Work Alternative Program:  As noted above, there is no good time given if you do the Sheriffs Work Alternative Program, called “weekend work release” or SWAP in some counties.  But it shouldn’t matter to you as you are only doing 8 hours of week for a full days credit.  You sleep in your own bed, eat your own food and watch your own TV at night.  Unless you enjoy jail, you are almost always better off doing SWAP or weekend work release instead of jail.  If you get a DUI away from home, most counties will allow you to do your work release in your own county.

5.  Community Service:  “Community service” means working at any qualified 501(c)(3) charity, such as the Red Cross, a local church, or a soup kitchen.  If you are allowed to do community service the Court will need to approve in advance the kind of work that you do and who you work for.  Getting community service in place of jail is a hard sell to any judge.  If you are sentenced to Sheriff’s Work instead of jail, you can get that converted to community service if you live in a place where you cannot do SWAP.  This usually happens with out-of-country residents, but community service can also be ordered if you have health problems that prohibit you from doing SWAP.

6.  Buying out of jail time.  Yes, in highly unusual cases you can buy your way out-of-jail, but I have to be honest, I have never had such a case.  I have bought clients out of weekend work or Sheriff’s Work, but that was because they lived out of state, and SWAP couldn’t be arranged with the county that the client lived in.  And it is expensive.  One of my clients paid $3500 to get out of eight hours of Sheriff’s Work or SWAP.  Still, if you have the money, ask your attorney to inquire with the judge at the pre-trial conference or at your arraignment if you don’t have an attorney.  Make sure that you have compelling reasons for such a request.

7. Alcoholics Anonymous, Narcotics Anonymous and other treatment programs.  If you don’t have the money for a residential treatment program (see above) then a good fallback is AA.  If the judge you are appearing before is receptive to treatment (and some aren’t), then you might be able to lessen your sentence if you can show regular participation in AA.  I had a client who had two priors, both of them with enhancements and he was facing a tough jail sentence.  The judge told me at the bench that if I didn’t come up with something in mitigation of his crime my client would have to do jail time.  I returned to the bench and said that my client would be willing to do “90 in 90″ AA meetings–i.e. 90 meetings in 90 days.  The judge halved the sentence on that offer.  The end of the story is better.  The client not only did 90 in 90, but he did more and became the AA meeting secretary.  The judge ended up converting the balance of jail time to Sheriff’s Work and thanked my client from the bench for helping others to fight addiction.  The bottom line is that if you are serious about fighting alcoholism or addiction, and show it, the Court will usually be receptive to some modification of your sentence unless it is already offering you the base sentence.