San Diego DUI Law Center

When Mandatory Jail can be Substituted with Residential Treatment Program on a 2nd or 3rd DUI offense in San Diego

When Required Jail is Not Required

San Diego DUI Lawyer Rick Mueller successfully avoid mandatory jail time for a woman on a second or third California DUI conviction facing a minimum of 120 days mandatory jail.

How can mandatory not be mandatory, when it comes to custody?

Answer in San Diego DUI criminal defense attorney Rick Mueller’s case: many months of successful enrollment & completion in the private residential alcohol treatment program at The Crossroads Foundation, a legitimate and effective “rehabilitation facility!”

Statutory authority presented by San Diego County DUI Law Center

California Penal Code §2900.5(f) provides:

“If a defendant serves time in a camp, work furlough facility, halfway house, rehabilitation facility, hospital, juvenile detention facility, similar residential facility, or home detention program in lieu of imprisonment in a county jail, and the statute under which the defendant is sentenced requires a mandatory minimum period of time in jail, the time spent in these facilities or programs shall qualify as mandatory time in jail.”

Penal Code section 2900.5 provides, in pertinent part:

“(a) In all felony and misdemeanor convictions,…when the defendant has been in custody, including…any time spent in a jail,…halfway house, rehabilitation facility, hospital,…or similar residential institution, all days of custody of the defendant…shall be credited upon his term of imprisonment….”

California case law presented by San Diego County DUI Law Center

Notably, it is not the procedure by which a defendant is placed in a facility that determines the right to credit, but the requirement that the placement be “custodial,” and that the custody be attributable to the proceedings relating to the same conduct for which the defendant has been convicted. (People v. Tafoya (1987) 194 Cal.App.3d Supp. 1, 4; People v. Mobley (1983) 139 Cal.App.3d 320, 323; In re Watson (1977) 19 Cal.3d 646, 651; Pen. Code, §2900.5, subd. (b).) Courts have given the term “custody” as used in section 2900.5 a liberal interpretation. (In re Watson, supra, 19 Cal.3d at p. 651.)

People v. Ambrose (1992) 7 Cal.App.4th 1917, impliedly recognized the court’s authority to order placement in a private alcohol rehabilitation facility when it discussed the meaning of the term in custody in this context: “Initially, it is debatable whether appellant was even “in custody” at all while at the ranch. The term “in custody” as used in section 2900.5, subdivision (a) has never been precisely defined. People v. Reinertson (1986) 178 Cal.App.3d 320, 326, reviewed several cases in which courts approved the granting of custody credit for time spent in various facilities.

The court concluded: “It is clear from the words of the statute and from judicial decisions that, for purposes of credit, ‘custody’ is to be broadly defined. See People v. Mobley (1983) 139 Cal.App.3d 320, 323 (credit for period of residence in ‘Discovery House’); People v. Sylvestry (1980) 112 Cal.App.3d Supp. 1, 7 (credit for stay in custodial ‘Impact House’), cf., People v. Palzauelos (1986) 180 Cal.App.3d 962 (disagreeing with Sylvestry); People v. Rodgers (1978) 79 Cal.App.3d 26, 31-32 (credit for stay in ‘Delancy Street facility’); In re Wolfenbarger (1977) 76 Cal.App.3d 201, 205- 206 (credit for stay in residential ‘Cri-Help’ program)… The courts which have considered the question generally focus on such factors as the extent freedom of movement is restricted, regulations governing visitation, rules regarding personal appearance, and the rigidity of the program’s daily schedule. [Citation.]

While no hard and fast rule can be derived from the cases, the concept of custody generally connotes a facility rather than a home. It includes some aspect of regulation of behavior. It also includes supervision in a structured life style.” (Id. at pp. 326-327, parallel citations omitted.)…

The question of whether a particular facility should be regarded as sufficiently restrictive as to amount to custody constitutes a factual question (Cf. People v. Rodgers (1978) 79 Cal.App.3d 26, 32-33), even though certain facilities by their very nature involve some restraint on untrammeled liberty (see People v. Schnaible (1985) 165 Cal.App.3d 275, 277). Although it is difficult to conceive of a live-in alcohol treatment program that does not include some modification of behavior and supervision, at least regarding the availability of alcohol, this does not necessarily constitute ‘custody.'”

So, residential treatment program placement must be custodial. In this court’s definition, the concept of custody generally connotes a (private residential treatment program) “facility” rather than a home.

There is no required custody time credit for a self-imposed stay at a residential treatment program. Pen. C. §2900.5(b) requires that it be court ordered. (People v. Tafoya (1987) 194 Cal.App.3d Supp. 1.) While it’s better to get the order first, a court still has the option or discretion to note such custody time credit for self-imposed residential treatment program participation.

The opinion in People v. Penoli (1996) 46 Cal.App.4th 298, upheld the judge’s delegation to the probation department of authority to determine what residential treatment program the defendant would be required to complete, and whether or not that program had been successfully completed. This despite the fact that the selection of programs in this case ranged from a ten-day detox to two years of intensive treatment.


Getting a reasonable judge to understand the mandatory residential rehab credits law and/or actually order the program can be key.

San Diego DUI Attorney Prosecutor’s Position

The San Diego City Attorney’s Appellate Department researched this issue, and as stated in downtown San Diego Superior Court’s Trial Setting Department at apx. 11:30 a.m. on March 21, 2012, it agrees that a court must give credit for the program if it’s ordered in drunk driving cases.

If you have any questions or need help with a first, second or third California DUI case, contact San Diego DUI Criminal Defense Attorney Rick Mueller at: