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DUI-Related Felony Offenses Served in County Jail
After Assembly Bill (AB) 109 was passed into law in 2011, there was confusion (and there still is to some degree, although less) among judges, district attorneys and even defense counsel as to which offenses are served in county jail and which are served in state prison.
The answer to this question is important toward a client’s decision in how to resolve the case because serving time in county jail may mean that the individual will remain close to his family and loved ones and that, if the jail is overcrowded, he or she may be granted the option of serving time at home on electronic home monitoring with the option of going to work. At the same time, jail can be more chaotic and dangerous than state prison.
In contrast, a California state prison sentence means being located in a state prison perhaps five hours or more away. While this may be burdensome on one’s family for visiting the client, the client may prefer prison over county jail.
While the list of which convictions (by Penal Code, Health & Safety Code or Vehicle Code section) that are served in county jail and which are served in state prison generally is divided by AB 109 by those offenses that are serious, violent or sex offenses (state prison) and those that are not (county jail), there are many sentences that one might assume would be served in state prison, but are instead served in county jail.
It merits mention, too, that no defendant will serve time in county jail under AB 109 if he or she has a prior or current violent felony conviction under Penal Code § 667.5(c), or an out-of-state felony conviction for a crime that would qualify as a violent felony under California law.
Similarly, no defendant will serve time in county jail if he or she has a prior or current serious felony conviction under Penal Code § 1192.7(c), or an out-of-state felony conviction for a crime that would qualify as a serious felony under California law.
Lastly, if defendant is a registered sex offender under Penal Code § 290, defendant must serve his time in state prison, not county jail. He or she is excluded from the provisions of AB 109.
Narrowing the scope of this article to just DUI-related offenses, we present the following list of convictions that often accompany a DUI and will be served in county jail:
- Vehicular manslaughter without gross negligence while intoxicated (Penal Code § 191.5(b). We ask the reader to read our comment below on this charge.
- Vehicular manslaughter (with vessel [a boat or ship]) without gross negligence while intoxicated (Penal Code § 192.5(b. We ask the reader to read our comment below.
- Fourth or greater DUI within ten years (Vehicle Code §§ 23152 or 23550(a) (a non-injury DUI wherein defendant has a separate conviction for a felony DUI within the last ten years));
- Evading a police officer and driving the wrong way (Vehicle Code § 2800.4);
- Making a false report to police of a stolen vehicle with prior (Vehicle Code § 10501(b));
- “Joyriding,” or using a vehicle without the owner’s consent (Vehicle Code § 10851);
- Driving to the left of a barrier or dividing section causing injury or death (Vehicle Code § 21651(c));
- Reckless driving causing injury (Vehicle Code § 23104(b));
- Reckless driving causing serious injury (Vehicle Code § 23105(a));
- Speed contest causing serious injury (Vehicle Code § 23109.1(a));
As mentioned above, a conviction for violation of Penal Code §§ 191.5(b) (vehicular manslaughter without gross negligence while intoxicated) 192.5(b) (vehicular manslaughter (with vessel) without gross negligence while intoxicated) are served in county jail because Penal Code § 191.5(c)(2) states this, the required level of injury makes this offense a serious felony under Penal Code § 1192.7(c)(8) (personal infliction of great bodily injury (GBI), as specified by Penal Code § 1192.8). This would seem to dictate that a conviction for 191.5(b) or 192.5 is excluded from county jail under Penal Code § 1170(h)(3). Arguments certain can be made both for and against county jail for these conviction and a judge most likely would rule based on what he or she finds is the more specific provision.
