CHAPTER 474

FORMERLY

HOUSE BILL NO. 1098

AS AMENDED BY

HOUSE AMENDMENT NO. 1

AND

HOUSE AMENDMENT NO 1 TO HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 21, DELAWARE CODE, RELATING TO THE SUSPENSION AND REVOCATION OF LICENSE FOR REFUSAL TO SUBMIT TO CHEMICAL TEST AND RELATING TO THE OPERATION OF VEHICLE WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; PENALTIES; REVOCATION OF LICENSE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Subchapter III of Chapter 27, Title 21, Delaware Code, entitled "Suspension and Revocation of License for Refusal to submit to chemical test", by striking the present Sections 2740, 2741, 2742 and 2743 in their entirety and substituting in lieu thereof new sections to read as follows:

§2740. Consent to submit to chemical test

Any person arrested under §4177 of this Title shall be deemed to have given his consent to submit to a chemical test of his breath, blood, or unine for the purpose of determining the alcoholic content of his blood.

§2741. Administration of test

The test shall be administered by qualified personnel, as defined in §2746 of this Title, at the direction of a police officer having reasonable grounds to believe that such person was arrested under §4177 of this Title. The police officer shall designate which of the tests shall be administered.

§2742. Suspension, notice, hearing

(a) If a person arrested under §4177 of this Title refuses to submit to the chemical test when requested to do so, the test shall not be given.

(b) Upon such refusal, the arresting officer shall cause to be delivered to the Department his sworn report of the refusal and stating that he had arrested the person under §4177 of this Title.

(c) Upon receipt of the report, the Secretary shall revoke the person's license and/or driving privileges by giving written notice in the manner provided in §2736 of this Title. The revocation shall become effective upon the expiration of 14 days after

personal delivery or deposit of notice, except when a delay is granted pursuant to the provisions of subsection (d).

(d) Within 14 days after such personal delivery or deposit of notice, the person may file a written notice with the Secretary requesting a hearing. Upon receipt of the request for a hearing, the Secretary may delay the revocation pending the disposition of the hearing. Within 30 days of receipt of the notice requesting a hearing, the Secretary or his designated representative shall schedule a hearing to determine:

(1) If the police officer had reasonable grounds to arrest the person under 14177 of this Title;

(2) If the person was actually placed under arrest prior to being requested to submit to the test;

(3) If the person was informed by the arresting officer at the time of the request that his license or privilege to drive a vehicle within the State would be revoked for a period as established in 12743 (a) if he refused the test; and

(4) If the person did, in fact, refuse to submit to the test.

If the Secretary or his designated representative finds that each of these criteria has been established, he shall forthwith revoke the driver's license and/or driving privilege of the person by giving notice thereof in the manner prescribed by 12736 of this Title.

(e) In addition to the revocation authorized by this section, the Secretary may require attendance of the person whose license is revoked at a course of instruction and/or rehabilitation program established under I4177D of this Title. This subsection shall terminate on July 1, 1982.

§2743. Duration of revocation; conditional license

(a) Any revocation pursuant to the provisions of §2742 shall be for a period of 1 year from the date of surrender of the license or, for a non-resident from the effective date of notice of revocation. If after expiration of the period of revocation, and upon payment of all fees under the schedule adopted by the Secretary, the Secretary refuses to issue a driver's license the applicant may appeal the Secretary's denial to the Superior Court in the county wherein the applicant resides.

(b) A person whose license has been revoked pursuant to §2742 shall be permitted to apply for a conditional license under the following terms:

(1) Satisfactory completion of at least 8 hours of instruction and/or rehabilitation in a program established

under §4177D of this Title;

(2) Payment of all fees under the schedule adopted by the Secretary;

(3) At least 30 days have elapsed since the day the revoked license reached the Division of Motor Vehicles of the Department.

(c) Notwithstanding the provisions of subsection (a) of this section, upon satisfactory completion of a program established under §4177D of this Title, a person whose license has been revoked pursuant to §2742 of this Title shall be permitted to apply for a driver's license under the following terms:

(1) Payment of all fees under the schedule adopted by the Secretary;

(2) At least 6 months have elapsed since the day of revoked license reached the Division of Motor Vehicles of the Department.

(d) The provisions of subsections (b) and (c) shall terminate on July 1, 1982. Effective July 1, 1982 subsection (a) shall be mended by changing the period of revocation from 1 year to 6 menthe."

Section 2. Amend Subchapter IX of Chapter 41, Title 21, Delaware Code, entitled "Reckless Driving; Driving while Intoxicated" by striking the present Section 4177 and substituting in lieu thereof new Sections 4177 - 4177D to read as follows:

"§4177. Operation of vehicle while under the influence of intoxicating liquor or drugs; penalties

(a) No person shall drive, operate, or have in actual physical control a vehicle, an off-highway vehicle, a moped, or a bicycle while under the influence of intoxicating liquor or of any drug or any combination of drugs and/or intoxicating liquor.

(b) Any person charged under subsection (a) of this section whose blood alcohol concentration is one-tenth of 1% or more by weight as shown by a chemical analysis of a blood, breath, or urine sample taken within four hours of the alleged offense shall be guilty of violating subsection (a). This provision shall not preclude a conviction based on other admissible evidence.

(c) The fact that any person charged with violating this section is or has been legally entitled to use alcohol or a drug shall not constitute a defense against any charge of violating this section.

(d) Whoever is convicted of a violation of subsection (a) of this section shall:

for the first offense, be fined not less than $200 nor more than $1,000 or imprisoned not less than 60 days nor more than 6 months or both;

(1) for each subsequent like offense occurring within 5 years from the former offense, be fined not less than $500 nor more than $2,000 and imprisoned not less than 60 days nor more than 18 months.

(e) In lieu of the penalties prescribed in subsection (d) of this section, anyone convicted of a violation of subsection (a) of this section may, at the discretion of the sentencing judge, be subjected to the following penalties:

(1) for the first offense, be required to complete a course of instruction and/or rehabilitation program established pursuant to §4177D, which may include confinement for a period not to exceed 6 months, and pay a fee therefor not to exceed the minimum fine as set forth in subsection (d) of this section for the first offender;

(2) for each subsequent like offense occurring within 5 years from the former offense, be confined for a period not to exceed 15 months in a rehabilitation center to complete a course of instruction and/or rehabilitation program established under §4177D and pay a fee therefor which shall not exceed the minimum fine set forth in subsection (d) of this section for a subsequent offender.

(f) No person who violates subsection (a) of this section shall receive a suspended sentence, except for first offenders sentenced pursuant to the provisions of subsection (d) of this section.

§4177A. Revocation of license for violation of Section 4177

(a) The Secretary shall forthwith revoke the driver's license and/or driving privileges of any person convicted of a violation of §4177. Such revocation shall be for a period of one year.

(b) Any person sentenced under the provisions of subsection (d) or subsection (e) of §4177 shall have his driver's license and/or driving privileges revoked by the Secretary for an additional period of six months or until he has satisfactorily completed a program established pursuant to §4177D.

(c) For purposes of this section, the Secretary may authorize the judges of the various courts of the State to act as his agent for purpose of revocation of licenses. Upon conviction of a violation pursuant to Section 4177, the court shall take immediate possession of any driver's license issued by any state and forthwith forward it to the Secretary. The driver's license of a nonresident shall be mailed to the licensing authority which issued the license.

(d) The Secretary shall have power and authority to refuse to issue a driver's license to any individual whose driver's license or driving privilege was revoked pursuant to this section until such person has satisfied the Secretary that he has been of good behavior for the entire period of the revocation and until he has complied with all applicable provisions of this section. If the Secretary refuses to issue a driver's license after the period of revocation has ended and after all fines and/or fees are paid, the applicant may appeal to the Superior Court of the county of his residence.

§4177B. First offenders; election of rehabilitation program

(a) Any person charged with violation of §4177 who qualifies as a first offender may at the time of his arraignment, elect to apply to the Secretary for enrollment in course of instruction or program of rehabilitation established pursuant to §4177D in lieu of standing trial on the alleged offense. If he elects to apply, his application shall constitute a waiver of the right to a speedy trial. If the person elects not to apply, or if he is not accepted, he shall be promptly arraigned for a violation of Section 4177. If upon enrollment in such program, he fails to comply with the terms of enrollment or fails to satisfactorily complete the course of instruction and/or program of rehabilitation, he shall be brought before the court and, upon a determination by the court that the terms have been violated, he shall be promptly arraigned for a violation of §4177.

(b) Upon satisfactory completion of the course of instruction and/or program of rehabilitation, including payment of all fees under the schedule adopted by the Secretary, by a person who applies for enrollment in such course under the provisions of this section, the Secretary shall forward to the court a statement confirming the satisfactory completion of the course and the payment of fees, and the criminal charges for violation of §4177 shall be dropped.

(c) The driver's license and/or driving privileges of a person applying for enrollment in a program pursuant to the provisions of subsection (a) of Section 4177B shall forthwith be revoked by the Secretary for a period of one year. If the person is accepted into the program, the period of revocation shall be for one year from the date of the initial revocation. If the person is not accepted for enrollment, or if he is found by the court to be in violation of the terms of enrollment, the revocation under this section shall continue until sentence is imposed. This revocation shall not be concurrent with or a part of any period of revocation established under any other provisions of this subchapter.

(d) For purposes of §4177 (d) and (e) and 14177B, previous enrollment in a course of instruction or program of rehabilitation pursuant to the provisions of Sections 4177, 4177A, 4177B, 4177C, and 4177D within five years of the date of a violation of 44177 shall constitute a first offense.

§4177C. Conditional licenses; reinstatement of license

(a) Any person who, as a first offender, is enrolled in a course of instruction and/or program of rehabilitation pursuant to the provisions of §4177B shall be permitted to apply for a conditional license under the following terms:

(1) Satisfactory completion of at least 8 hours of instruction and/or rehabilitation;

(2) Payment of alI fees under the schedule adopted by the Secretary;

(3) At least 30 days have elapsed since the day the revoked license reached the motor vehicle office.

(b) Notwithstanding the provisions of §4177A and §4177B, any person sentenced pursuant to the provisions of §4177 or who elects to enroll in a course of instruction or program of rehabilitation pursuant to the provisions of §4177B who has satisfactorily completed a course and/or program established pursuant to §4177D shall be permitted to apply for a driver's license under the following terms:

(1) Payment of all fees under the schedule adopted by the Secretary;

(2) At least 6 months have elapsed since the day the revoked license reached the motor vehicle office.

§4177D. Courses of instruction; rehabilitation programs

The Secretary shall establish courses of instruction and programs of rehabilitation for persons whose driver's licenses have been revoked for operating a vehicle while under the influence of intoxicating liquor or drugs. The Secretary shall administer such courses and programs and adopt rules and regulations therefor, and shall establish a schedule of fees for enrollment in such courses and programs which shall not exceed the minimum fine imposed for the offense as set forth in Section 4177."

Section 3. The provisions of §4177 (e), 34177A (b) and (c), §4177B, §4177C and §4177D of Title 21, as set out in this Act, shall terminate on July 1, 1982. The Secretary shall provide the General Assembly with a comprehensive report on the results of the implementation of these provisions on the third day of the session beginning in January of 1982.

Section 4. Prior Convictions. All convictions under §4177 of this Title which occurred prior to the date on which these revisions become law continue to remain on the record as first or subsequent offenses for a period of five years from the date of the offense.

Section 5. Severability. If any provision of this Act, or any rule, regulation, or order thereunder or the application of such provision to any person or circumstances, shall be held invalid, the remainder of this Act and the application of such provisions of this Act or of such rule, regulation, or order to persons or circumstances other than those to which it is held invalid shall not be affected hereby.

Approved July 11, 1978.