CHAPTER 13

FORMERLY

SENATE RILL NO. 99

AS AMENDED BY SENATE AMENDMENT NOS. 5, 6, AND 7

AN ACT TO AMEND CHAPTER 27 AND CHAPTER 41, TITLE 21 OF THE DELAWARE CODE RELATING TO OPERATION OF MOTOR VEHICLES, SUSPENSION AND REVOCATION OF LICENSE FOR REFUSAL TO SUBMIT TO CHEMICAL TEST, AND TO DRIVING UNDER THE INFLUENCE OF ALCOHOL OR OTHER DRUGS.

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 §2740 of Title 21 by repealing said Section in its entirety and substituting in lieu thereof the following:

"§2740. Consent to Submit to Chemical Test

Any person who drives, operates or has in actual physical control a vehicle, an off-highway vehicle, a moped or a bicycle within this State shall be deemed to have given his consent, subject to the provisions of this Section and §4177 to a chemical test or tests of his blood, breath and/or urine for the purpose of determining the presence of alcohol or a drug or drugs. The testing may be required of a person when an officer has probable cause to believe the person was driving, operating, or in physical control of a vehicle in violation of §4177 or §2742, or a local ordinance substantially conforming thereto."

Section 2. Amend §2741 of Title 21 by repealing said Section in its entirety and substituting in lieu thereof the following:

"§2741. Administration of Test

(a) At the time a chemical test specimen is required, the person may be informed that if testing is refused, the person's driver's license and or driving privilege shall be revoked for a period of at least one year. The testis) shall be administered by qualified personnel, as defined in §2746 of this Title, at the direction of the police officer who shall designate which of the tests shall be administered.

(b) If there are reasonable grounds to believe that there is impairment by a drug or drugs which are not readily subject to detection by a breath test, a blood and/or urine test may be rquired even after a breath test has been administered.

(c) The fact that the police officer offered or required a person to submit to a preliminay screening test of his breath in order to estimate the alcohol concentration of the person's blood, at the scene of the stop or other initial encounter between the officer and the person, shall have no bearing upon the implied consent provisions of this Chapter. Refusal to take such a preliminary screening test shall not be deemed an Implied consent violation nor shall the taking of such a test satisfy the requirements of the implied consent law."

Section 3. Amend §2742 of Title 21 by repealing said Section in Its entirety and substituting in lieu thereof the following;

"§2742. Revocation, Hearing, and Duration of Revocation

(a) If a person refuses to permit chemical testing, after being informed of the penalty of revocation for such refusal, the test shall not be given but the police officer shall report the refusal to the department. The police officer may, however, take reasonable steps to conduct such chemical testing even without the consent of the person if he seeks to conduct such test or tests without informing the person of the penalty of revocation for such refusal and thereby invoking the provisions of the implied consent law.

(b) Upon certification by the police officer that there existed probable cause to believe that the person had been acting in violation of §4177 of Title 21 or a local ordinance substantially conforming thereto and that the person refused to submit to a chemical test after being informed of the penalty of revocation for such refusal, the secretary shall revoke the person's driver's license and /or driving privilege for a period of one year for a person with no previous violation of §4177 or §2742 of Title 21 or a similar statute of any state or the District of Columbia or local government, within five years of the date of the charge in question; 18 month's revocation for a person with one previous violation of such statutes as described above; and 24 months revocation for person with two

or more previous violations of such statutes as described above.

(c) Except in those cases wherein the police officer acts pursuant to subsection (b) of this Section, upon certification by the police officer that there existed probable cause to believe that the person was in violation of §4177 of Title 21 or a local ordinance substantially conforming thereto and the person was arrested on that occasion for a violation of §4177 of Title 21 or a local ordinance substantially conforming thereto or for violation of a criminal statute dealing with injury or death caused to another person by the person's driving or operation of the vehicle, if driving under the influence is included as an element of such charge, the secretary shall revoke the person's driver's license and/or driving privilege for a period of three months for a first time DUI offender, one year for a second DUI offender, or 18 months for more than two DUI offenses. For purposes of this subsection, a DUI offender shall include anyone who has previously committed a first offense as defined in §4177B(e) or lost their license pursuant to §2742 and any person convicted of a violation of §4177 of this Title or similar statutes of any State or the District of Columbia or local government, within five years of the date of the charge in question, a revocation within five years of said date for an implied consent violation, or a revocation within five years of said date under this subsection.

(d) No revocation under §2742(b) or (c) is effective until the secretary or a police officer or other person acting on his behalf notifies the person of revocation and allows the person a 15 day period to request of the secretary in writing a hearing as herein provided. If no request is filed in writing with the Division of Motor Vehicles within the 15 day period, the order of revocation becomes effective. If a request for a hearing is filed, a revocation is not effective until the final decision of the hearing officer resulting in a decision adverse to the person.

(e) On behalf of the secretary the police officer offering a chemical test or directing the administration of a chemical test, shall serve immediate notice of revocation on a person who refuses to permit chemical testing, after being informed of the penalty of .revocation for such refusal, or on a person who is arrested, on that occasion either for a violation of §4177 of Title 21 or a local ordinance substantially conforming thereto or for violation of a criminal statute dealing with injury or death caused to another person by the person's driving or operation of the vehicle, if driving under the influence is included as an element of such charge. The officer shall take the Delaware license or permit of the driver in any such case and issue a temporary license effective only for 15 days with a provision for an additional period if a written request for a hearing is received by the Division of Motor Vehicles within the 15 day period. The police officer shall send the person's driver's license or permit to the secretary along with the certificate required by §2742(b) or (c).

(f) The hearing under this section shall be before the secretary or his designee. The scope of the hearing shall cover the issues of:

(I) With respect to §2742(b) and (c), whether the police officer had probable cause to believe the person was in violation of §4177 of this Title, or a local ordinance substantially conforming thereto.

(2) With respect to §2742(c), whether by a preponderance of the evidence it appears that the person was in violation of §4177 of this Title or a local ordinance substantially conforming thereto. For purposes of this subsection a blood/alcohol concentration of .10% or more pursuant to the testing referred to above, or a positive indication of drugs, shall be conclusive evidence of said violation.

(3) With respect to §2742(b), whether the person refused to permit the test after being informed of the penalty of revocation for such refusal.

(g) The hearing specified in this Section shall be scheduled within 30 days following the filing of the request for a hearing.

(h) In addition to the revocation authorized by this Section, the secretary shall require attendance of the person whose license is revoked at a course of instruction or rehabilitation program established under §4177D of this Title."

Section 4. Amend §2743 of Title 21 by repealing said section In its entirety and substituting in lieu thereof the following:

"52743. Duration of Revocation

(a) Any revocation pursuant to 52742(b) of this Title shall be for a period of one year, 18 months or 24 months as appropriate from the effective date of the revocation.

(b) Any revocation pursuant to 52742(c) of this Title shall be for a period of three months, one year or 18 months as appropriate from the effective date of the revocation.

(c) The secretary shall not issue a driver's license to anyone who has been found in violation of 52742(b) or (c) until (I) they have satisfactorily completed a program established under S4177D of this Title and (2) have paid all fees under the schedule adopted by the secretary and (3) the individual has had a favorable character investigation conducted by the Division of Motor Vehicles.

(d) If, after expiration of the period of revocation and upon compliance with the provisions of 52743(c) 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.

(e) Notwithstanding the provisions of subsection (a) of this Section, upon satisfactory completion of a program established under S4177D of this Title a person who is a first offender and meets the criteria specified in 54177B(a) and whose license has been revoked pursuant to S2742(b) of this Title shall be permitted to apply for a driver's license under the following terms:

(I) Payment of all fees under the schedule adopted by the secretary;

(2) At least six months have elapsed since the date of the revoked license or temporary license, which ever is later, reached the Division of Motor Vehicles;

(3) The individual has had a favorable character investigation conducted by the Division of Motor Vehicles."

Section 5. Amend §2744 of Title 21 by repealing said section in its entirety and substituting in lieu thereof the following:

"§2744. Appeal

The decision of the secretary shall be final and not subject to judicial review or appeal, unless the secretary rules against the person at a hearing requested by such person in which event the person may appeal to the Superior Court, but the appeal shall not operate as a stay of the revocation of his license, permit, or privilege to drive."

Section 6. Amend §2747 of Title 21 by repealing said section in its entirety and substituting in lieu thereof the following:

"§2747. Alternative testsi_physical incapacity

If for any reason a person is physically unable to supply enough breath or complete the chemical test, he shall submit to such other chemical tests as authorized by this subchapter, as the police officer shall elect, subject to the requirements of §2746 of this Title. Any person who is unconscious or who is otherwise in a condition rendering FR-Incapable of refusal shall be deemed not to have withdrawn the consent provided in §2740 of this Title and any test may be performed as provided in §2746 of this Title."

Section 7. Amend §2749 of Title 21 by repealing said section in its entirety and substituting in lieu thereof the following:

"§2749. Refusal to submit is admissible evidence

Upon the trial of any action or proceeding arising out of the acts alleged to have been committed by any person while in violation of §4177 of this Title or local ordinance substantially conforming thereto, the court may admit evidence of the refusal of such person to submit to a chemical test of his breath, blood or urine under this subchapter."

Section 8. Amend §2750 of Title 21 by repealing said section in its entirety and substituting in lieu thereof the following:

"§2750. Admissibility in evidence of results of chemical test

(a) Upon the trial of any action or proceeding arising out of acts alleged to have been committed by any person while under the influence of alcohol, a drug or drugs, with respect to any chemical test, taken by or at the request of the state, the court shall admit the results of a chemical test of the person's breath, blood or urine according to normal rules of search and seizure law. The informing or failure to inform the accused concerning the implied consent law shall not affect the admissibility of such results in any case, including a prosecution for a violation of §4177 of this Title. The informing of an accused concerning the implied consent law shall only have application and be relevant at a hearing concerning revocation of the driver's license of said person for a violation of the implied consent law. Nothing contained in this section shall be deemed to preclude the admissibility of such evidence when such evidence would otherwise be admissible under the law relative to search and seizure law such as when such evidence has been obtained by valid consent or other means making the obtaining of the evidence legal under the Fourth Amendment.(b) The Doctor-Patient Privilege shall not apply to the disclosure to law-enforcement personnel nor the admissibility into evidence in any criminal proceeding of the results of a chemical test of a person's blood, Ireath or urine for the purpose of determining the alcohol or drug content of his blood irrespective of whether such test was done at the request of a treating physician, other medical personnel or a peace officer."

Section 9. Amend Chapter 27, §2737, Title 21 of the Delaware Code by deleting said section and inserting in lieu thereof the following:

"§2737. Fee for return of suspended license and reinstatement

Any person whose license and/or driving privileges has been suspended shall pay a fee of $15 at the end of such suspension for the return of his/her license and/or the reinstatement of his/her driving privileges."

Section 10. Amend Chapter 27, Subchapter II, Title 21 by adding a new §2738 to read as follows:

"§2738. Fee for reinstatement of driving privileges, following the revocation of license and/or driving privileges

Any person whose license and/or driving privileges has been revoked shall pay a fee of $125 at the end of such revocation for the reinstatement of his/her driving privileges. The above stated fee does not include the fee for the issuance of a new license."

Section 11. Amend §2756, Chapter 27, Title 21, Subchapter IV by striking said section and substituting in lieu thereof the following:

"§2756. Driving vehicle while license is suspended or revoked: penalty

(a) Any person whose driver's license or driving privileges have been suspended or revoked and who drives any motor vehicle upon the highways of this State during the period of suspension or revocation shall for the first offense be fined not less than $100 nor more than $500 and be imprisoned not less than 30 days nor more than six months. For each subsequent like offense, be fined not less than $500 nor more than $1,000 and in addition be imprisoned not less than 60 days nor more than one year. However, for a first offense under this section, if the suspension or revocation resulted from a violation of §4177 of this Title or a local ordinance substantially conforming thereto, the minimum fine shall be $200.

(a) The minimum fine for a first or subsequent offense shall not be subject to suspension. The period of imprisonment for a subsequent offense shall not be subject to suspension. In addition, for the first or subsequent offense under this section, if the suspension or revocation resulted from a violation of a criminal statute dealing with injury or death caused to another person by the person's driving or operation of the vehicle and driving under the influence was an element of such offense, the minimum fine shall be $500 and the minimum period of imprisonment shall not be subject to suspension.

(a) (1) With respect to any vehicle used in connection with a violation of this section, while the permit or license of the operator was revoked for violation of §2742 or §4177 or pursuant to §2732 of this Title, the Court, at the time of sentencing the operator for violating this section may, upon motion by the State, order the said vehicle be impounded for at least ninety days for the first violation of this section, and for at least one year for a subsequent violation, provided that a public or private secure storage area may be obtained by the arresting police agency for said vehicle. The court shall permit any party with a legal or equitable interest in the vehicle an opportunity to show cause why the impoundment of such vehicle should cease. Prior to release of said vehicle, the person to whom the vehicle is released shall pay all reasonable towing and storage fees connected therewith. The State and the arresting police agency shall not be liable for any expenses incurred in connection with the towing and storage of said vehicle

(c) (2) In lieu of impoundment, the number plate or registration plate, of any vehicle used in connection with a violation of this section, while the permit or license of the operator was revoked for violation of §4177 or §2742, or pursuant to §2732 of this Title, shall be surrendered to the Department for at least ninety (90) days for the first violation of this section, and for at least one (I) year for a subsequent violation. The court shall permit any party with a legal or equitable interest in the vehicle an opportunity to show cause why the surrender of said plate should cease."

Section 12. Amend Title 21 by adding thereto a new section designated as §2759, which shall read as follows:

"§2759. Liability for Towing Expenses

be liable for the towing and storage costs, except that the police agency ordering such towing shall be liable for such costs if the driver was not actually arrested for driving in violation of 54177 or another criminal offense as a result of that incident and no other existing situation reasonably necessiated such towing."

Section 13. Amend 54177 of Title 21 by striking said section and substituting in lieu thereof the following:

"§4177. Operation of Vehicle while under the Influence of Intoxicating Beverage 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 alcohol or of any drug or any combination of drugs and/or alcohol.

(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) of this section. 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:

(I) For the first offense, be fined not less than 5200 nor more than 51,000 or imprisoned not less than 60 days nor more than six months or both, and shall be required to complete a course of instruction and/or rehabilitation program pursuant to §4117D of this Title, which may include confinement for a period not to exceed six months, and pay a fee not to exceed the maximum fine.

(2) For each subsequent like offense occurring within five years from the former offense, be fined not less than 5500 nor more than $2,000 and imprisoned not less than 60 days nor more than 18 months. For the purposes of this subsection, prior offenses shall include those occurring in any other state, the District of Columbia, or under generally conforming local ordinances. A conviction for a violation of a criminal statute dealing with injury or death caused to another person by the person's driving or operation of the vehicle, if driving under the influence was included as an element of such charge, shall constitute such a first or similar offense if occurring within 10 years from the subsequent offense.

(e) In addition to the penalties prescribed in subsection (d)(2) of this section, anyone convicted of a subsequent like offense occurring within five years from the former offense shall be ordered to complete a program of education or rehabilitation which may include inpatient treatment and be followed by such other programs as established by the training facility, not to exceed a total of 15 months and pay a fee not to exceed the maximum fine.

(a) No person who violates subsection (a) of this section shall receive a suspended sentence. However, for the first offense, the period of imprisonment may be suspended."

Section 14. Amend Subsection (b) of §4177A, Title 21, Delaware Code, by striking said Subsection (b) in its entirety and substituting in lieu thereof, a new Subsection (b), to read as follows:

"(b) Any person sentenced under Subsection (d) of §4177 of this Title, shall have his driver's license and/or driving privileges revoked by the secretary until he has satisfactorily completed a program established pursuant to §41771) of this Title."

Section 15. Amend Subsection (a) of §4177A of Title 21 by adding the phrase "for first or second offense or 18 months for three or more offenses" after the word "year" and before the period "." in the second sentence of said Subsection.

Section 16. Amend §41776 of Title 21 by striking said section in its entirety and substituting fn lieu thereof the following:

"§4177B. First Offenders; Election in lieu of Trial (a) Any person who:

(1) Has not within five years been convicted of any offense under 54177 or under any similar statute of the United States or of any state or of the District of Columbia or a local ordinance which deals with driving, operating, or having actual physical control of a motor vehicle while under the influence of alcohol or drugs; and

(2) Had not accumulated three or more moving violations within two years of the date of the offense in question on his driving record according to the records of the Division of Motor Vehicles of the person's state of residence; and

(3) Was not, with respect to the offense in question, involved in an accident resulting in injury to any person other than himself; and

(4) Did not have a blood alcohol level of two tenths 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; and

(5) Was not driving without a valid license or under a suspended or revoked license at the time of the offense in question; may qualify for the first offense election at the time of his arraignment. The court, without entering a judgment of guilt and with the consent of the accused may defer further proceedings and place him on probation upon terms and conditions, including enrollment in a course of instruction or program of rehabilitation established pursuant to 54177D of this title. If he elects to apply, his application shall constitute a waiver of the right to speedy trial. If the person elects not to apply, or if he is not accepted, he shall promptly be arraigned for a violation of §4177 of this title.

(b) If a term or condition of probation is violated, including failure to appear for evaluation at an assigned evaluating agency, he shall be brought before the court, or if he fails to appear before the court, in either case, upon a determination by the court that the terms have been violated, the court shall enter an adjudication of guilt and proceed as otherwise provided under §4177 of this title.

(c) Upon fulfillment of the terms and conditions of probation, including satisfactory completion of the course of instruction and/or program of rehabilitation, and payment of all fees, the court shall discharge the person and the proceedings against him and shall simultaneously with said discharge and dismissal submit to the Division of Motor Vehicles a written report specifying the name of the person and the nature of the proceedings against him which report shall be retained by the Division of Motor Vehicles for further proceedings, if required.

(d) The driver's license and/or driving privileges of a person applying for enrollment in an education or rehabilitation program pursuant to subsection (a) of this section shall forthwith be revoked by the Secretary for a period of one year. If the person is accepted into the education or rehabilitation 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 part of any period of revocation established under any other provisions of this subchapter.

(e) For purposes of this Section and §4177, previous enrollment in a course of instruction or program of rehabilitation pursuant to this Section or §4177 or a conviction pursuant to §4177 of this title Or similar statutes of any state or local Jurisdiction, or the District of Columbia, within five years of thc date of a violation of §4177 of this title shall constitute a first or similar offense and be considered a conviction for purposes of sentencing for subsequent offenses, including sentencing under §4177, and conviction for a violation of a criminal statute dealing with injury or death caused to another person by the person's driving or operation of the vehicle, if driving under the influence was included as an clement of such charge, shall constitute such a first or similar offense if occurring within 10 years from the subsequent offense.

(a) The Attorney General may move the sentencing court to apply the provisions of this r..ction to any person who does not come within the proscription of subsection (a)(1) of this section but would otherwise be disqualified from consideration under this section because of thc applicability of one or more of the provisions found in subsection (a)(2) through (a)(5) of this section. In the event of such a motion by thc Attorney General, the court may in Its discretion apply the terms of this section to such person."

Section 17. Amend paragraph (I) of Section (a) of §4177C of Title 21 by striking the number "8" as it appears therein and substituting in lieu thereof the number "16".

Section 18. Amend paragraph (3) of Subsection (a) of §4177C of Title 21 by striking the number "30" as It appears therein and substituting in lieu thereof the number "90".

Section 19. Amend §4177B of Title 21 by striking thc word "minimum" where it appears therein and subAituting in lieu thereof the word "maximum".

Section 20. Amend Title 2l by adding thereto a new section designated as §4177F, which shall read us follows:

"§4177F. Applicability of conforming ordinances

Any references to §§4177, 4177A, 417713, 4177C, 4177D, or 4177E shall include all conforming statutes of any other state or the District of Columbia, or local ordinances in conformity therewith."

Section 21. Authorize eight (8) additional positions in the Department of Motor Vehicles [four (4) hearing officers and four (4) senior clerk typists].

Section 22. This Act shall apply to violations committed on or after its effective date. Any law in effect before the effective date of this Act shall continue to apply to conduct committed before the effective date of this Act and prosecuted on or after said date. For the above purpose, this Act shall not be construed to repeal any such law.

Section 23. The provisions of this Act are severable, and, if any phrase, clause, sentence, or provision of this Act, or the application of such phrase, clause, sentence, or provision shall be held invalid, the remainder of this Act and the application of such provision or provisions to persons of circumstances other than those to which it was held invalid or inconsistent shall not be affected thereby.

Section 24. This Act shall be effective on the day following approval by the Governor.

Approved February 18, 1983.