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Avoiding Jail Time, A Guide to Sentencing Alternatives

One of the first statements you might hear when referred a criminal case is, "I don't want to go to jail." While this may not always be possible, there are some programs or options that may be available as alternatives to custody. Handling criminal cases though out Southern California has made us very familiar with sentencing alternatives. What I mean by "alternatives to custody" is that even if the Judge or DA wants your client to serve some custody time that time can be satisfied through other programs so they do not actually have to go to jail. There are some general programs or ways to avoid jail available state wide and each county in has their own unique options. We will start with the general options.

Suspended sentence or time stayed: Even if you are sentenced to jail time the court or DA can agree to "stay" the time or give you a "suspended" sentence. This means you agree to go to jail for a defined period of time, but you only go to jail if you fail to complete certain terms of probation. Often times the "stayed" or "suspended" time will be more time than if you had just gone into custody but it is a way to stay out of jail and if you successfully complete probation you never go to jail.

Public Works: It may be possible to convert the time to Community service or "Public Works" (also referred to as Cal Trans or CWP in Orange and work release in Riverside). Public Works or Cal Trans or Community Work Program (CWP) is a program where you will report to a specific location as assigned by the sheriff's department or probation. Then you will be taken around the county to do work, this may include picking up trash on the side of the freeway in the orange vests, filling sand bags, folding clothes at the VA, etc. Sometimes this is ordered separate from custody and other times it is in lieu of custody. The distinction is important so be sure you understand how the Public Works is assigned.

Community Service: Community Service is volunteer work for a "non-profit" organization. You will need to see if the court lets you select any non-profit or if there is an approved list for that county. Generally, you're assigned hours instead of days in jail. So, 5 days would be converted to 40 hours' community service. You will have a set time to complete the hours and must provide proof to the court upon completion.

Specialty courts: Each county has made an effort to address certain segments of the population (i.e. homeless court and veteran court) or particular types of crimes (drug court and DUI court) with specialty courts that aim to provide special help to its members. These programs usually require a specific number of factors to be admitted and require a lot of participation. They do have the power to send you to jail if you violate terms of the program but it is another option that allows you to earn staying out of jail.

Treatment: Sober living or inpatient rehab facilities may also be an option to avoid jail time. Some Judges will allow you to serve your time in one of these facilities and have it count as custody days so you don't have to go to jail. Generally, this allowed only if alcohol or drugs were a factor in the crime. So in the personal injury context, this is an option that can be explored when a drunk driver is involved in the crash. Be sure the facility is approved by the courts before checking in. Another huge benefit to this as an alternative to custody is that often time health insurance will pay for some or all of the cost of the facility. Most Judges require actual "confinement" at the treatment facility for it to count for custody credit.

Now let's look at some of the county-specific programs in San Diego, Riverside and Orange counties.

San Diego County Programs

A few years ago, the sheriff's department created a program called County Parole and Alternative to Custody (CPAC). This is sometimes referred to as electronic confinement or house arrest. Basically, you are given an electronic monitor that reports your location, and in some cases monitors alcohol. You are allowed to go to work, school and court programs and stay at your house when not doing those activities. You must be approved by the sheriff's department. It is possible to be pre- approved before you enter your plea so you can look for other alternatives if you are denied admittance to the program. Generally, this is the best alternative to custody for most of my clients.

There is another alternative to custody that will allow you to work and it is called work furlough. In this program, you actually stay at a jail over night but are allowed to leave to work during the day. It also allows you to attend court programs, religious services and other approved activities. You must be approved for this program. To be approved you must actively be employed and your employment must meet the requirements of the program, such as minimum 35 hours of week schedule, allows phone check at work, not related to the crime, etc.

If you are not currently employed but are seeking employment or if your employment does not meet the qualifications for work furlough there is yet another option call Residential Re-entry Center. RRC requires that you attend classes, programs and must actively job search while in the program. You must secure employment (35+ hours) within 90 days of joining the program.

Weekend Jail is another possibility if you do not qualify for any other program. You must have it noted in the court minutes that you are approved for weekend jail to be allowed to do this option. You report to jail on Friday with the court minutes and an ID. You stay in jail over the weekend and then are released. This option is usually available if there are not a great number of custody days.

Orange County Programs

Orange County has a program very similar to San Diego CPAC program called Supervised Electronic Confinement (SEC), this is also sometimes called house arrest. It is also run by the probation department and requires you to be approved to participate. You wear an electronic monitor at all times and must obey all rules as to approved locations and activities while being monitored.

Private jail and Work Furlough: Orange county allows you to spend custody time in private jails. Private jails, sometimes referred to as "pay to stay," are facilities where you pay the facility a fee for staying there. There are a number of facilities in the county and you must be approved by the facility and allowed by the court to attend such a facility. Often times you are allowed to leave the private jail during the day to work so it can be a huge benefit.

Riverside County Programs

Riverside is unique because they almost always give you jail time but then allow you to do an alternative to custody. The different programs in Riverside are as follows:

Sheriff work release: This is similar to the Cal-trans, CWP or Public works option discussed above. You sign up for a specific location and specific day and work whatever task they need done that day.

Electronic confinement: There are two options for electronic confinement in Riverside county. If you reside in the county you will apply through the sheriff's department but if you are out of county you apply to the LCA, which is a private monitoring company. Both require you to wear an ankle bracelet at all times and abbey the conditions on movement and location. It is very similar to CPAC and SEC.

Attorney Tip: Chambers the case with the Judge to see if they will allow alternatives, even if the DA will not. Bringing proof of employment, proof of proactive rehabilitation efforts, school or family obligations will make a stronger argument for why an alternative to custody is the appropriate remedy.

Understanding all the options available can be the difference between a defendant spending time behind bars or keeping their job, apartment and livelihood.

©Richard L. Duquette, Esq. and Michael Norton, Esq. All rights reserved April 18, 2017