Opinion
Court of Appeals No. A-9614.
March 7, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge, Trial Court No. 4FA-S05-1833 CR.
James M. Hackett, Law Office of James M. Hackett, Fairbanks, for the Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Zachary T. Finkel appeals the superior court's order denying him credit against his sentence for the time he was ordered to be on electronic monitoring as a condition of release. We affirm the superior court because we conclude that Finkel's restrictions did not approximate those experienced by one who is incarcerated. Background facts and proceedings
Finkel crashed his truck into a tree and knocked it down. He left the accident on foot, leaving his truck running and in gear. The police located him a short distance away. Finkel denied that he had been in an accident or that he owned a truck, but mail addressed to him was in the truck and a transfer of ownership of the truck to him was pending. Finkel admitted that he was too intoxicated to drive and that his license was revoked, but claimed he had not been drinking. The police arrested him. A breath test measured .139 percent alcohol.
Finkel had previously been convicted for felony driving while intoxicated for an incident in August 1999. He also had two misdemeanor convictions for driving while intoxicated in 1997.
The grand jury indicted Finkel for felony driving while under the influence. The State also filed an information charging him with driving while license revoked and leaving the scene of an accident.
AS 28.35.030(n).
AS 28.15.291(a)(1) AS 28.35.050(b), respectively.
Finkel reached a plea agreement with the State. Finkel pleaded no contest to felony driving while under the influence, and the State dismissed the two misdemeanor charges. The parties agreed that Finkel would receive a presumptive 2-year term to serve (42 months with 18 months suspended) with 3 years of probation.
Finkel moved for credit for time served for the time he spent on bail release on electronic monitoring. Superior Court Judge Randy M. Olsen denied Finkel's motion. Judge Olsen concluded that the conditions of Finkel's electronic monitoring program — the SCRAM program operated by Alaska Monitoring Services — did not have the elements of confinement that were required for credit under Nygren v. State. Finkel appeals.
SCRAM is an acronym for "secure continuous remote alcohol monitoring."
658 P.2d 141, 146 (Alaska App. 1983) (holding that defendants should receive credit against their sentence for time spent in a treatment facility as a condition of release if the restrictions imposed by that facility "approximat[e] those experienced by one who is incarcerated").
Discussion
Finkel argues that Judge Olsen erred in denying him credit against his jail time for the time he was on electronic monitoring. He argues that the restrictions of the SCRAM program satisfy the factors discussed in the Nygren case for evaluating whether a treatment facility has restrictions approximating incarceration.
In Nygren, we described restrictions that would qualify for credit for time served under AS 12.55.025(c):
[I]ncarcerative facilities share a number of common characteristics: their residents are invariably sent there by court order; the facilities require residency, and residency requirements are sufficiently stringent to involve a definite element of confinement; residents of the facilities are subject to twenty-four hour physical custody or supervision; any periods during which residents may be permitted to leave the facility are expressly limited, both as to time and purpose; while in the facility, residents are under a continuing duty to conform their conduct to institutional rules and to obey orders of persons who have immediate custody over them; and residents are subject to sanctions if they violate institutional rules or orders and to arrest if they leave the facility without permission.
Id.
Judge Olsen noted that Finkel was not subject to any confinement. He lived at home, without the usual restrictions of confinement such as constant oversight, limited privacy and personal space, little choice over his diet, and substantial restrictions on visitors. On electronic monitoring, Finkel had no restrictions on who could visit him or when, and he did not experience the common restrictions of incarceration. We agree with Judge Olsen that the restrictions of Finkel's bail release and the electronic monitoring program do not, as a matter of law, approximate incarceration.
Finkel also argues that he should receive credit against his jail sentence because the circumstances of his release conditions were arguably more restrictive than the program operated by the Department of Corrections for home confinement. But we rejected this argument in Matthew v. State. Conclusion
___ P.3d ___, Alaska App. Opinion No. 2084 (Feb. 2, 2007), 2007 WL 293168.
The judgment of the superior court is AFFIRMED.