dissenting:
I must respectfully disagree with the majority’s view that the Home Detention Act (Act), W.Va.Code, 62-11B-1, et seq., can never be used for third-offense driving under the influence (DUI) convictions. As the author of State ex rel. Hagg v. Spillers, 181 W.Va. 387, 382 S.E.2d 581 (1989), I am aware of how stringently we have construed the third-offense DUI sentencing statute and, particularly, W.Va.Code, 17G-5-2(m), which makes the sentence mandatory and “not subject to suspension or probation.” This is the legislative command.
However, in 1990, when the legislature enacted the Act, it stated that the Act was available “[a]s a condition of probation or as an alternative sentence to another form of incarceration.” W.Va.Code, 62-11B-4(a). (Emphasis added). It is for this reason that the term “probation” is used in some places in the Act. The majority has seized on these references to conclude that the Act is essentially analogous to probation, and, therefore, not available under W.Va.Code, 17C-5-2(m), for third-offense DUI.
To my mind, a more common sense reading of the Act would be to recognize that it applies to two different situations. Where a judge wishes to utilize it as “another form of incarceration,” as permitted by W.Va.Code, 62-llB-4(a), then he may do so. The Act permits the court to make “[t]he period of home detention ... continuous or intermittent.” W.Va.Code, 62-HB-4(b). Thus, the various options set out in note 4 of the majority opinion, 184 W.Va. at 253, 400 S.E.2d at 261, need not be made available. When this is done, there is a distinct difference between probation and the alternative sentencing provisions of the Act.
This distinction is even recognized in the Act itself. W.Va.Code, 62-llB-9(b), provides that if a prisoner violates the terms of home confinement, then a sentence may be imposed as could have been given at the initial disposition hearing. It contains this express proviso: “[T]he participant shall receive credit towards any sentence imposed after a finding of violation for the time spent in home confinement.” Were this purely a probation statute, there would be no need to give credit for time spent on probation. See Jett v. Leverette, 162 W.Va. 140, 247 S.E.2d 469 (1978).
*255It is also important to remember that it is within the trial judge’s discretion to utilize the Act. Moreover, the legislature made it plain that the sentencing alternatives of the Act applied to any felony. W.Va.Code, 62-llB-3(3). The only exception is where there is an outstanding de-tainer from another jurisdiction. W.Va. Code, 62-llB-6(b). In view of the broad scope of the Act and the fact that it was passed in 1990, well after the enactment of W.Va.Code, 17C-5-2(m) (1983), it is difficult for me to believe that it cannot be applied to this felony.
I am authorized to state that Justice McHugh joins me in this dissent.