CHAPTER 157

FORMERLY

SENATE BILL NO. 153

AS AMENDED BY SENATE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND TITLE 10, CHAPTER 9 OF THE DELAWARE CODE RELATING TO A DOMESTIC VIOLENCE DIVERSION PROGRAM IN THE FAMILY COURT.

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

Section 1. Amend Chapter 9, Subchapter III, Part B, Title 10 of the Delaware Code, by adding a new section, designated as §943, which new section shall read as follows:

§943. First Offenders Domestic Violence Diversion Program

(a) For the purposes of this Section, Domestic Violence shall be considered as any act or acts committed by an adult member of a family against one or more members of his or her family, as that term is defined in 10 Del. C. §901(9), which constitute any of the following criminal offenses under Title 11 of the Delaware Code: offensive touching (§601); menacing (§602); reckless endangering in the second degree (§603); assault in the third degree (§611); terroristic threatening (§621); vehicular assault in the second degree (§62B); sexual harassment (§763); unlawful sexual contact in the third degree (§767); unlawful imprisonment in the second degree (§781); coercion (§791); reckless burning or exploding (§804); criminal mischief classified as a misdemeanor (§811); criminal trespass in the first, second, or third degrees (§§821,1322,1323); harassment (§1311); or aggravated harassment (§1312).

(b) Those acts of Domestic Violence for which an offender may elect to apply for first offender status under this rule shall be limited to the following criminal offenses under Title 11 of the Delaware Code: offensive touching (§601); menacing (§602); sexual harassment (§763); criminal mischief classified as a misdemeanor (§B11); criminal trespass in the first, second, or third degrees (§§B21,822, B23); harassment (§1311); or aggravated harassment (§1312).

(c) Any adult who:

(1) Has not been convicted of a violent felony or any domestic violence offense under Title 11 of the Delaware Code listed in subsection (a), or under any statute of the United States or of any state thereof including the District of Columbia relating to a violent felony or acts of Domestic Violence substantially similar to those criminal offenses listed in subsection (a); and

(2) Has not previously been afforded first offender treatment or other diversion programs for Domestic Violence;

(3) Has been charged with a domestic violence offense listed in subsection (b); and

(4) Has appeared at Family Court for a Bail Review/Domestic Violence Interview,

may qualify for the first offense election at the time of arraignment.

(d) At the time of arraignment any person qualifying under subsection (c) of this section as a first offender and who elects to apply under this section shall admit to the offense by entering a plea of guilty, as a first offender. The court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and shall place the offender on probation for a period of 1 year upon terms and conditions of which shall include but not be limited to:

(1) Enrollment with a counseling service for the purposes of evaluation and such counseling services as the evaluation counselor deems necessary,

(2) Satisfactory completion of the counseling program,

(3) Evaluation for alcohol and other drug abuse, and successful completion of a course of treatment as may be indicated by the evaluation,

(4) Restitution, where appropriate, to the victim,

(5) No unlawful contact with the victim during the period of probation,

(6) Other such terms and conditions as the court may impose.

(e) If a term or condition of probation is violated, including failure to appear for evaluation at an assigned evaluating agency, the offender shall be brought before the court, or if the offender 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 guilty and proceed as otherwise provided under Title 11 of the Delaware Code.

(a) Upon fulfillment of the terms and conditions of probation, including, but not limited to, satisfactory completion of courses of instruction and/or programs of counseling/rehabilitation, and payment of all costs and fees, the court shall discharge the person and dismiss the proceedings against the offender and shall simultaneously therewith submit to the Attorney General a report thereof which shall be retained by the Attorney General for use in future proceedings, if required.

(a) 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 disqualification r disabilities imposed by law upon conviction of a crime, except the additional penalties imposed for second or subsequent offenses under Title 11 of the Delaware Code.

(b) Any person who elects to apply for first offender status shall by said application be deemed to have waived the right to a speedy trial and further agrees to pay the cost of prosecution as a condition. If a person elects not to apply for first offender status or if the application is not accepted, the matter shall be promptly scheduled for trial.

(c) There may be only 1 discharge and dismissal under this section with respect to any person."

Section 2. Effective Date. This Act takes effect thirty (30) days after its enactment.

Approved July 16, 1993