[1994/oagheade.htm]

OAG 94-49

July 11, 1994

Mr. Donald R. McFadden

Central Inmate Monitoring

P.O. Box 842

London, Kentucky 40743-0842

Dear Mr. McFadden:

You recently wrote a letter to the Attorney General in which you asked whether home incarceration is a lawful penalty for a person convicted of violating KRS 189A.010, the Kentucky statute which prohibits driving a motor vehicle while under the influence of intoxicants.

Having reviewed various Kentucky statutes, we believe that a court may lawfully impose home incarceration as a penalty for a first, second, or third violation of KRS 189A.010, unless the defendant has been convicted of a violent felony offense, as defined by KRS 532.200(3), within the previous five years. We are further of the opinion that a person convicted of a fourth or subsequent violation of KRS 189A.010 is not eligible for home incarceration, since such a conviction is a felony under KRS 189A.010(4) and since KRS 532.210(1) does not permit a felon to be sentenced to home incarceration.

We first note that a conviction under KRS 189A.010 requires minimum sentences of imprisonment, which increase in severity depending upon the number of prior offenses committed by the defendant. See KRS 189A.010(4)(a), (b), (c), and (d). In addition, KRS 189A.010(5) states, in pertinent part, as follows:

For a second or third offense [of DUI] within a five (5) year period, the minimum sentence of imprisonment or community labor shall not be suspended, probated, or subject to conditional discharge or other form of early release. For a fourth or subsequent offense under this section, the minimum term of imprisonment shall be one hundred twenty (120) days, and this term shall not be suspended, probated, or subject to conditional discharge or other form of early release.

(Emphasis added). The statute clearly mandates imprisonment for second, third, and fourth convictions for driving under the influence of intoxicants, and the trial court must sentence the defendant accordingly.

The Kentucky home incarceration statutes include KRS 532.200 through KRS 532.250. Although usually served at the defendant's residence rather than in a penal institution, "home incarceration" is by its nature a type of confinement, incarceration, or imprisonment. It is specifically defined under KRS 532.200(2) as the "use of a person's home for purposes of confinement." (Emphasis added).

Conviction for certain criminal offenses might render a person ineligible for home incarceration under the statute. KRS 532.210(1) declares that only a person convicted of a misdemeanor, and not a felony, may be sentenced to home incarceration, as follows:

Any misdemeanant may petition the sentencing court for an order directing that all or a portion of a sentence of imprisonment in the county jail be served under conditions of home incarceration. Such petitions may be considered and ruled upon by the sentencing court prior to and throughout the term of the misdemeanant's sentence.

(Emphasis added).

One class of misdemeanants, however, is not eligible for home incarceration. If, within the five-year period preceding the present conviction, the misdemeanant committed a "violent felony offense," KRS 532.230 prohibits home incarceration, as follows:

No person being held under a detainer, warrant, or process issued by some other jurisdiction shall be eligible for home incarceration. No person convicted of a violent felony offense shall be eligible for home incarceration.

"Violent felony offense" is defined by KRS 532.200(3), and KRS 189A.010, the drunk driving statute, is not included as one of the crimes which fall within the definition of "violent felony offense."

We therefore believe that home incarceration may be lawfully imposed by a trial court as a penalty for a first, second, or third violation of KRS 189A.010, unless the defendant has been convicted of a violent felony offense within the previous five years, as defined by KRS 532.200(3). We further believe that a person convicted of a fourth or subsequent violation of KRS 189A.010 is not eligible for home incarceration, since the statutes do not permit a court to sentence a felon to home incarceration.

We trust that this letter will be of some assistance to you.

Yours very truly,

CHRIS GORMAN

ATTORNEY GENERAL

Perry T. Ryan

Assistant Attorney General