CHAPTER 347

FORMERLY

SENATE BILL NO. 446

AS AMENDED BY

SENATE AMENDMENT NOS. 1 AND 2 AND HOUSE AMENDMENT NO.1

AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE BY DELETING IN ITS ENTIRETY PRESENT SECTION 64 RELATING TO CONDITIONAL DISCHARGE FOR POSSESSION AS FIRST OFFENSE AND ESTABLISHING IN LIEU THEREOF A NEW SECTION 4764 RELATING TO FIRST OFFENDERS CONTROLLED SUBSTANCES DIVERSION PROGRAM.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 47, Title 16, Delaware Code, by striking §4764 in its entirety, and substituting in lieu thereof a new §4764 which shall read as follows:

"§4764. First Offenders Controlled Substances Diversion Program

(a) Any person who: (1) Has not previously been convicted of any offense under this Chapter or under any statute of the United States or of any State thereof relating to narcotic drugs, marijuana, or stimulant, depressant, hallucinogenic drug or other substance who is charged through information or indictment with possession or consumption of a controlled substance under Sections 4753 or 4754 of this Title; and (2) has not previously been afforded first offender treatment under this section or its predecessor, may qualify for the first offense election at the time of his arraignment, except that no person shall qualify for such first offense election where the offense charged under Sections 4753 or 4754 arises from the same transaction, factual setting or circumstances as those contained in any indictment returned against the defendant alleging violation of any provisions contained within Sections 4751, 4752, or 4753A of this Title.

(b) At time of arraignment any person qualifying under subsection (a) hereof as a First Offender and who elects treatment under this section shall admit possession or consumption of a controlled substance by entering a plea of Guilty, as a First Offender. The court, without entering a judgement of guilt and with the consent of the accused, may defer further proceedings and place him on probation for a period of not less than three (3) years the terms and conditions of which shall include but not be limited to:

(1) Revocation of the person's drivers license and/or privileges within this State for a period of not less than one (1) year, restoration of which shall be contingent upon successful completion of all mandatory terms and conditions required of probation to be completed during the term of revocation. Upon entry of a plea of Guilty, as First Offender under this section, the Clerk of the Court or other person designated by the Court shall forthwith report that fact to the Department of Motor Vehicles for action consistent with the provisions of this subsection. The Department of Motor Vehicles may issue a conditional license during this period of revocation upon written certification by the person's probation officer that a narrowly drawn conditional license is necessary for the limited purpose of preforming the terms and conditions of probation;

(2) Performance of a minimum of twenty (20) hours of community service work monitored by the court or probation office, performance of which shall be accomplished on at least three (3) separate days and shall not, in any event consist of segments lasting more than eight (8) hours in succession. Community service performed pursuant to the terms of this paragraph of this Subsection shall be, in addition to all other community service ordered and no community service ordered or performed pursuant to the terms of this section shall be performed or served concurrently with any other court ordered or approved community service.

(3) Completion of a 16-hour first offender drug rehabilitation program, licensed by the"-Secretary of the Department of Health and Social Services and paid for by the first offender.

(4) Other such terms and conditions as the Court may impose.

(c) If a term or condition of probation is violated, or if the defendant is found to have illegally possessed or consumed any controlled substance listed in Schedules I through V within three (3) years of the entry of a plea under this Section, a written report of same shall immediately be filed with the court, and he shall be brought before the court and upon determination by the court that the terms have been violated or that he has possessed or consumed any such controlled substance, the court shall enter an adjudication of guilt upon the record and proceed as otherwise provided under this Title.

(d) Upon fulfillment of the terms and conditions of probation, including, but not limited to, paying of all costs and fees, and performance of all required community service, the court shall discharge the person and dismiss the proceedings against him and shall simultaneously therewith submit to the Attorney General a report thereof which shall be retained by him for use in future proceedings, if required. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, except the additional penalties imposed for second or subsequent offenses under Section 4763 of this Title. Any person who elects to be treated as a First Offender under this Section shall, by so doing, agree to pay the costs of his prosecution as a condition. There may be only one (1) discharge and dismissal under this Section with respect to any person."

Section 2. This Act shall take effect 90 days after being signed by the Governor.

Approved July 13, 1990.