Alternatives to Jail

Not every sentence calling for incarceration results in a defendant spending the entire sentence in jail. In certain circumstances, it can be possible to work off the sentence in a non-prison setting.

I. House Arrest

One way to avoid jail is to serve the sentence on house arrest. Most counties offer house arrest in certain situations.

In Bucks County, the courts tend to be more amenable to imposing house arrest — particular in  DUI cases. In Chester County, a person may be eligible to spend a large percentage of a sentence on house arrest if he or she is accepted into the Intermediate Punishment Program (“IPP”).

In Montgomery County, the availability of house arrest largely depends on the judge to which the case is assigned. Certain judges are more likely to impose house arrest than others. In all cases, it is important to develop a convincing case for why society (and the defendant) would be better served by having the defendant serve his or her sentence at home.

II. Inpatient Programs

Another way to avoid jail is to successfully complete an inpatient substance abuse and/or mental health program. Under Pennsylvania law, a judge may give day-for-day credit for time served in an inpatient facility. However there is no requirement that judge grant such credit. If a person charged with a crime is considering an inpatient facility partly to avoid a jail sentence, it is important to know who the sentencing judge is going to be.

III. Pre-Trial Home Monitoring

Another scenario where attorneys may try to obtain “time-served” credit is where a judge imposes a bail condition that the person is essentially on home confinement (house arrest) pending trial.

In every criminal case, a judge sets bail. Sometimes the bail is “ROR” or “unsecured” in which case the person is released without having to pay cash or post security. In other cases judges will assign cash bail requiring the defendant to pay cash as a condition of release. Occasionally, a judge will impose a condition of bail requiring a defendant to stay in his or her home until the case resolves.

Under Pennsylvania law, as interpreted by the Pennsylvania Supreme Court, defendants are not entitled to credit against a prison sentence for time spent in home confinement as a condition of bail. Courts have interpreted “custody” to mean time spent in an institutional setting such as jail or, at a minimum, an inpatient facility. Accordingly, some judges will not grant credit for pretrial home confinement. However exceptions have been recognized a defendant was essentially assured that his time on home confinement would, indeed, count toward the ultimate sentence. Accordingly, it is important if pretrial home confinement is ordered, that there be some record that the defendant was “assured” that he would get credit for the time.

In any case where a person may be looking at the possibility of a jail sentence, it is important to hire an experienced criminal defense attorney. Feel free to call Montgomery County, PA criminal lawyer Henry Hilles at 610-270-8800.

Blood & Breath Test Refusals: Enhanced Penalties Ruled Unconstitutional

Blood / Breath Test Refusals — Enhanced Penalties Ruled Unconstitutional

The Pennsylvania Superior Court has ruled that it is unconstitutional to impose enhanced criminal penalties on DUI defendants who “refuse” to submit to a chemical (blood or breath) test. Commonwealth v. Giron, 2017 WL 410267.

For years, the Pennsylvania DUI statute has provided that DUI defendants who “refuse” testing are automatically considered to be in the highest “tier” of DUI offenders. Pennsylvania DUI law has a three-tier system, based on a person’s blood alcohol content, providing for more severe penalties for persons testing in the higher tiers. Refusal cases have historically been automatically categorized in the highest tier subjecting those persons to enhanced penalties.

In Giron, the defendant was stopped by police after sideswiping a parked car. The officer testified that after questioning the defendant, he developed the opinion that the defendant may be under the influence of alcohol. The officer asked the defendant whether he would submit to a chemical test of his blood; the defendant refused.

The defendant in Giron was ultimately convicted and was sentenced as a highest-tier defendant because of the refusal. As a second-time DUI offender, the defendant received the third-tier mandatory minimum sentence of 90 days to five years of imprisonment (as opposed to a mandatory minimum sentence of five days to six months imprisonment for the lowest tier).

In finding the sentence to be unconstitutional, the Superior Court referenced the recent Unites States Supreme Court case Birchfield v. North Dakota,136 S.Ct. 2160 (2016). In Birchfield, the Supreme Court held that states cannot impose criminal penalties on persons who refuse to submit to a warrantless blood test because to do so violates a person’s Fourth Amendment right to be free from unreasonable searches and seizures.

The Pennsylvania statutory scheme (unlike that of North Dakota) does not make it a crime to refuse to submit to a chemical test. However the Superior Court in Giron essentially expanded the reasoning of Birchfield to hold that the state may not increase the criminal penalties to a person who refuses such a test (which the Pennsylvania statutory scheme does do). Accordingly, under Giron, the Pennsylvania statute automatically considering a person who refuses to submit to such a test to be in the highest tier for DUI sentencing purposes violates his or her constitutional rights.

It is important to note that there are significant civil penalties to a chemical test refusal that are not affected by Birchfield or Giron. Specifically, a person who “refuses” a chemical test automatically incurs a minimum one-year driver’s license suspension.

It will certainly be interesting to watch how Pennsylvania courts and legislators respond to the Giron decision.