Protecting Your Rights
Calculating jail time is not as easy as it seems. There are a lot of factors that affect the actual number of days you spend behind bars. The following is a brief explanation of common questions you may have about calculating and understanding a jail sentence.
What is Suspended Jail Time?
Suspended jail time is jail time that you do not have to serve conditional on you doing what the judge orders you to do within a specific time period. The following are typical examples of the conditions that a judge may put on suspended jail time:
- Not committing crimes,
- Paying all of your fines and court costs,
- Substance abuse treatment,
- protective orders or
- community service
For example: in DUI cases it is no uncommon to get 60 days in jail with all 60 days suspended. This means that you do not have to serve those 60 days conditional on not getting arrested in the next year, paying your fines and court costs, and completing the DUI classes. For a DUI first, the suspended jail time usually only lasts one year.
Suspended jail time goes away eventually. The judge decided how many years the conditions of your suspended jail time will be in effect. For misdemeanors it is typically one or two years. For felonies it may be many years.
If a person violates the conditions of their probation then a judge will be notified and the defendant will be order to appear before the judge. The judge will then decide how much of that suspended jail time the defendant should then have to serve. If you have suspended jail time and you violate the terms of your probation hire an attorney immediately, there is often a lot an attorney can do to protect you.
What is mandatory minimum jail time?
Certain crimes carry mandatory minimum jail sentences. Mandatory minimum jail time is active jail time that you are required to serve if you are convicted. Judges cannot suspended mandatory minimum sentences and you must serve 100% of your mandatory minimum sentence (not time off for good behavior). Many jail and judges will not allow work release or house arrest or weekends for mandatory minimum sentences.
Here are some common crimes that come with mandatory minimum sentences:
- 2nd, 3rd or 4th DUI
- DUI with a BAC of .15 or higher
- 3rd Offense Driving on a Suspended License.
- Assault on a police officer
Can I do delayed turn in?
If you are sentenced to jail the judge the deputies in the court room will immediately take you away to jail without any opportunity to do anything else. However, your attorney can ask for delayed turn in. Delayed turn in is when the judge gives you a time and place to turn yourself in to begin serving your sentence. Where and when you turn yourself in varies by jurisdiction.
Failing to show up for your delayed turn in a criminal offense and a violation of your probation and will likely result in more criminal charges and more jail time.
How is jail different than prison?
Jail is run by the county sheriff’s department and the prison is run by the state department of corrections. Jail is for inmates who are awaiting time or who have been sentenced to less than a year. Prison is only available for people who have been sentenced to more than a year on any one charge.
Neither prison nor jail is nice but they differ in their levels of security, the programs they have and the quality of the environment. Additionally, an inmate cannot ask for a motion to reconsider once they have been transferred to the custody of the department of corrections.
How do they calculate misdemeanor Jail Time?
The Sheriff’s department calculates what percentage of your jail time that you actually have to serve. The law requires that the sheriff’s department make people serve a minimum of 50% of their sentence if they are convicted of a misdemeanor. In most jurisdiction in Northern Virginia jail inmates only serve 50% of their non-mandatory jail sentences conditional on their good behavior in the jail. 100% of Mandatory jail time must be served even if it is for a misdemeanor.
For example: if a driver is convicted of their 2nd DUI and they receive a jail sentence of 10 days mandatory time and 30 days non-mandatory time, that driver will only serve 25 days in jail (10 days for the mandatory time and 15 days for the non-mandatory time).
Some jails will make an inmate serve 100% of their time if they choose to serve their sentence on the weekends. Prince William County is one of those jurisdictions. Fairfax County will require only 50% regardless of whether or not you do weekends.
How do they calculate felony Jail time?
The sheriff’s department calculates what percentage of a felony jail sentence a person will serve. The law requires that an inmate serve at least 85% of their felony jail sentence for non-mandatory time and 100% of their mandatory time.
Most jails in Northern Virginia make felons serve only 85% of their time if they behave in jail. Some jails (such as Loudoun County) actually require more than 85%.
Can I Serve Jail on Week Ends?
Some jails allow people to serve their sentences on weekends so that the inmate can continue to be employed. The inmate is released late Sunday night/early Monday morning then they turn themselves in on Friday night each week until their sentence is over.
If you sheriff’s department and the judge allow you to serve your sentence on weekends then you can. Each jurisdiction has different requirements and application processes. Some jails (such as Prince William County) will make you serve 100% of your jail sentence if you choose to serve on weekends.
Some jails such as Prince William County rarely allow weekend jail sentences. Other Jurisdictions do it regularly but there is limited space. In the City of Alexandria there is a small number of people allowed to do weekends each week. People who are sentenced on Monday in Alexandria are much more likely to be able to do weekends than someone who is sentenced on a Friday.
Failure to turn yourself in exactly on time on Friday is essentially the crime of escape from jail. Not only will you get a new criminal charge, you will violate your probation and will not be released come Monday morning once they catch you. Do not show up late!
Can I Get Work Release?
Work release is when you are released from jail during the day so that you can go to work. At the end of the day you return to the jail for the night. There are a number of requirements to be able to get into the work release program. Most programs require your employer to fill out some paperwork.
If you want to get into the work release program then apply prior to being sentenced to jail. This will minimize the amount of time you spend in jail waiting to get into the program. Each jurisdiction has different requirements to get into the work release program.
Fairfax County Work Release
In Fairfax, these are the requirements to get into the work release program (http://www.fairfaxcounty.gov/sheriff/workrelease.htm)
- Have between 30 to 180 left on your sentence.
- No pending warrants, detainers or charges
- No sex crimes or a child-related crime
- No violent crime
- Never escaped from custody
- Never flunked out of the work release program.
- Live in VA, MD or DC.
- You may be required to complete substance abuse treatment first.
Prince William County Work Release
In Prince William County these are the requirements for work release: (http://www.pwcgov.org/government/dept/adc/pages/work-release-work-force.aspx)
- classified as minimum custody
- Must have been already found guilty (though pre-sentencing is ok)
- 18 months or less to serve.
- No violent crimes in last 5 years
- No sex crimes
- Mentally stable (no addiction issues)
- No pending cases, no warrants, no detainer (unless bonded out).
- Work release officer gets final say.
Can I Serve House Arrest?
House arrest is also called “Home incarceration” or “Electronic Incarceration program”. The difference between work release and house arrest is that you do not go to the jail at the end of the day. You stay at home and can only go from home to work and back. Each program in each county is unique and not every county offers it.
For information on Fairfax County House Arrest check out their Electronic Incarceration program. http://www.fairfaxcounty.gov/sheriff/eip.htm
The Fairfax County ADC Electronic Incarceration Program (EIP) has the same requirements as work release and is an extension of the work release program but with a few extra rules.
- Inmate must pay a portion of the cost
- The inmate will be subject to random home inspections/checks.
- Will have an ankle monitor or other electronic monitoring.
- Must live in Virginia.
Can I get time off for good behavior?
If you are not serving a mandatory minimum sentence and you do not get into trouble while in Jail the sheriff’s department will typically give automatic good behavior time. When you first receive your release date from the jail, within a few days of being incarcerated, the good time deduction will have already been included in most cases. For non-mandatory misdemeanor good time off is 50% and for felonies is typically about 10-15%.
Can I get time off for being a trustee?
Trustees are inmates who work in the jail as cooks, in the laundry or in the commissary. The trustees are paid a very small amount for their time and some jail give the trustees a few days off their sentence in exchange for their work.
How does the jail calculate a day or a month?
Different jails calculate time differently. Fairfax County ADC calculates based on a calendar day while Prince William ADC uses a 24 hours day. Here is an example of what that means: If you are sentenced to jail at 4:00pm, Fairfax County says you have served a day at the stroke of midnight while Prince William County says you have served at day after 4:00pm the next day.
Additionally, when you are released also makes a difference. Some jails release everyone at the same time, other released people throughout the day. For example: Fairfax County releases everyone at 8:00am in the morning now. They use to release everyone just after midnight. Prince William Will release you at midnight if someone comes by 11:00pm to pick you up, otherwise you are released at 7:00am. Other jails release you at the approximately the same hours that your sentence is completed regardless of the time of day.
This can make a huge difference. For example: A shoplifter is arrested and brought to the jail and then released on bond within 8 hours. The same shoplifter is then sentenced to 4 days in jail at 3:00pm on Monday.
In Fairfax County that shoplifter will be release Tuesday morning at 8:00 am. In Prince William County that same shoplifter will be released Wednesday morning at 7:00am.
Will I be in my own cell or with other people?
When an inmate arrives in jail they are put together in a large holding cell with other inmates in intake. While in intake they are under heightened observation. Violent and out of control inmates are segregated.
Then inmates are put into a special classification block for an observation period. During this time the jail segregates the violent, the mentally ill, the gang members, the trouble makers, and all the normal people.
After a few days, the people in classification are divided up by their risk assessment. Violent offenders and trouble makers are all together, people in work release, week end inmates and trustees are all together, the mentally ill and suicidal are segregated, and then all the average normal people are segregated.
Can I call my family in Jail?
Most jails have a phone program where you set up an account through a third party company and then they charged you steep fees for each minute called. These phone calls are recorded and can be used against you so do not discuss your case with family members over these phone lines.
Can I call my lawyer in Jail?
Most jails have a way for law firms to sign up for free calls from inmates. Nichols & Green PLLC has done that for most major jails in Northern Virginia. You can call Nichols & Green PLLC for free from the jail by dialing (703) 383-9222.
Can I go to a funeral if I am in jail?
Most jails will allow an inmate to go to the funeral of a close family member. To go to a funeral you need:
- An order from a judge
- To pay the over time for the guards (deputies who come with you)
- File paperwork in advance
- The funeral has to be in Northern Virginia or reasonably close.
(Local rules for this may vary and not all jails allow this)
What do I do if the jail has the wrong release date?
Call your attorney ASAP if the sheriff’s department calculates your release day incorrectly. Otherwise, call inmates’ records at the local adult detention center and speak to the deputy about how they calculated the release date.
What is the different between concurrent jail time and consecutive jail time?
Concurrent jail time is when you serve two or more jail sentences at the same time. For example, if you are sentenced to one year for grand larceny and one year for felony DUI and the judge orders the sentences to be served concurrently you would be released after serving one year.
Consecutive jail sentences are served one after another. In the same example: two 1 year sentences that are served consecutively would result in 2 years in jail.
All sentences are consecutive unless a judge orders it otherwise.
How do I get credit for time served?
Credit for time served is automatically give, except in unusual situations. For example: If you are arrested for Robbery and you are held in jail without bond, but later the prosecution decides to also charge you with grand larceny. At trial you beat the robbery charge but lose the grand larceny charge and are sentenced to jail. In this scenario you do not receive time served for the time spent in jail prior to being charged with grand larceny. However in this scenario you can ask the judge to order that your time served for the burglary charge be accredited to your larceny charge.
How can I get reclassified?
If you are classified as a dangerous or mentally unstable inmate life in jail can be more rough than normal. In these situations you can call Inmate classifications at the local sheriff’s department at the Adult Detention Center and ask to be reclassified. Classifications can be changed if the right people can be convinced.
Will the jail give me credit for the time I spent being held in another jail?
If you are arrested for a warrant in another jurisdiction you will spend some time in jail waiting to be transported back to the jail where the warrant originated from. Until you waive extradition or until the transportation order is received by the jail you will not get credit for time spent in the foreign jail.
A judge may be able to order you receive credit for the time served in foreign jails if you make a proper motion to do so at sentencing.
Do I get credit for the time I spent waiting to be extradited?
No, not unless a judge grants a motion to do so.
What is a detainer?
A Detainer is a request from a foreign jurisdiction to hold an inmate until they can come and get them. Federal law enforcement such as ICE issue detainers but so do other counties and states as well. If you have a detainer and you are released from jail you will continue to be held for a period of time while the jail waits for you to be picked up by the jurisdiction that issued the detainer. If that jurisdiction does not come to get you within a certain period the jail will eventually just release you.
Does posting bond affect my time served?
Once you post bond you no longer automatically receive credit for time served. So if you are being held on three charges and you post bond on two of those charges you will not be released until you post the third bond. Additionally, you will not get time served for any of the charges that you posted bond for.