A few years back, this blog touted Oakland County's "virtual work release" program.  To alleviate chronic jail overcrowding, the Sheriff developed the program which utilizes a global positioning system to ensure that offenders are truly under "house arrest" when they complete their work day.

There is a certain class of offenders, however, that cannot take advantage of the virtual work release program, and must do their time in a physical jail cell.  The Michigan Court of Appeals' decision in People v Pennebaker takes the "house arrest" option away from sentencing judges in felony drunk driving cases.

In Pennebaker, a case originating in the Oakland County Circuit Court, the Court of Appeals held that people convicted of a felony drunk driving offense must perform a minimum of 30-days incarceration pursuant to the drunk driving statute, and that "incarceration" cannot involve "house arrest", no matter how technologically sound the GPS tether system.

 Oakland Circuit Judge Phyllis McMillen, impressed with the Oakland County Sheriff's relatively new virtual work release program, decided to utilize the tether-based monitoring system for the drunk driving punishments she was meting out.  Sounds logical to us over here at the Law Blogger.

Problem: The Oakland County Prosecutor took issue with the meaning of the word "incarceration", arguing at both Pennebaker's sentencing and on appeal that house-arrest does not cut it; felony drunk drivers must actually sit down for a minute in the county jail.  The Court of Appeals agreed, reversing Judge McMillen's sentence, and sending the case back to McMillen for re-sentencing.

In doing so, the intermediate appellate court quoted the following language from one of its earlier decisions on point:

Under no circumstances can we reasonably  conclude that confinement in one’s
home or apartment is the equivalent of confinement “in  jail.”  This is so even
where, as here, the conditions of home confinement require the person confined to
go directly to work, to return home immediately from work, and to be at home at
all times unless approval is given by  a probation officer.  Home detention does
not include the highly structured setting of a prison or jail.  One cannot remain on
the phone for extended periods, invite friends for extended visits, order a pizza,
watch television during periods of one’s own choosing, or have free access to the
refrigerator in jail.   

 We here at the Law Blogger would like to know what you think about the difference between tether-based "house arrest" and a jail sentence.  We welcome your comments.

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