Sunday, August 4, 2013

Is a Felony DUI Defendant Eligible For Realignment?

California lawmakers initiated a program in California some time ago allowing for certain offenders to spend time in local county jails versus being sent to state prison.  A Felony DUI carries a sentence of state prison, however, can a convicted offender do that time in county?  The Coorts say no, according to a recent appeals case.  Appellant pled no contest to a section 23152, subdivision (b) violation, admitted a prior conviction under section 23550.5, and was sentenced to a two-year term in state prison. On appeal, he argued he was entitled to be sentenced to local custody because, absent disqualifying factors not present here, Penal Code section 1170, subdivision (h) provides that where the term for the offense is not specified, the underlying offense shall be punishable by imprisonment in a county jail for 16 months, two years or three years. Vehicle Code section 42000 provides unless a different penalty is expressly provided by this code, every person convicted of a felony for a violation of a provision of this code shall be punished pursuant to Penal Code section 1170, subdivision (h). Under appellant's reasoning, since section 23550.5 provides for, "imprisonment in the state prison," but does not provide for a specific term, he was eligible for local custody. The appeals court upheld the sentence. Section 23550, subdivision (a), but not section 23550.5 provides for sentencing pursuant to section 1170, subdivision (h). By failing to include language in section 23550.5 authorizing local custody, the Legislature intentionally excluded those convicted under this statute from serving the term in local custody.   So, no county jail time for felony DUI crimes in California.