Penalties- How to Stay Out of Jail in a DUI Case

How to stay out of jail in a dui case.  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 sheriff work.  Yes, you can buy your way out of sheriff work.  Most counties charge you a considerable amount.  There has to be a reason, however.  If you live out of state, that MIGHT do it–some counties can refer you to sheriff work in any county in the country.  And it is expensive.  One of my clients paid $3500 to get out of five days 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.