CHAPTER 26

FORMERLY

HOUSE BILL NO. 89

AS AMENDED BY

HOUSE AMENDMENT NOS. 1AND 2

AND SENATE AMENDMENT NOS. 2 AND 3

AN ACT TO AMEND CHAPTERS 27 AND 41, TITLE 21 OF THE DELAWARE CODE RELATING TO DRIVING UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS.

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

Section 1. Amend Section 4177, Title 21 of the Delaware Code by deleting the catchline in its entirety and inserting, in lieu thereof, the following:

"§4177. Driving a vehicle while under the influence; evidence; arrests; and penalties."

Section 2. Amend Section 4177(a), Title 21 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

"(a) No person shall drive a vehicle:

(1) when the person is under the influence of alcohol;

(2) when the person is under the influence of any drug;

(3) when the person is under the influence of a combination of alcohol and any drug;

(4) when the person's alcohol concentration is .10 or more; or

(5) when the person's alcohol concentration is, within four hours after the time of driving, .10 or more."

Section 3. Amend Section 4177(6), Title 21 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

"(b) In a prosecution for a violation of subsection (a) of this section:

(1) 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.

(2) it shall be an affirmative defense to a prosecution premised on subsection (a)(5) if the person proves by a preponderance of evidence that the person consumed a sufficient quantity of alcohol after the time of driving and before any sampling to cause the person's alcohol concentration to exceed .10. Such evidence shall not be admitted unless notice of this defense is given to the prosecution at least twenty days before trial.

(3) the charging document may allege a violation of subsection (a) without specifying any particular subparagraph of subsection (a) and the prosecution may seek conviction under any of the subparagraphs of subsection (a)."

Section 4. Amend Section 4177(c), Title 21 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

"(c) For purposes of Subchapter III of Chapter 27 of this title, this section, and §4177I3 of this title, the following definitions shall apply:

(1) 'alcohol concentration of .10 or more shall mean:

(a) an amount of alcohol in a sample of a person's blood equivalent to .10 or more grams of alcohol per hundred milliliters of blood; or

(b) an amount of alcohol in a sample of a person's breath equivalent to .10 or more grams per two hundred ten liters of breath.

(2) 'chemical test' or 'test' shall include any form or method of analysis of a person's blood, breath, or urine for the purposes of determining alcohol concentration or the presence of drugs which is approved for use by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner, the Delaware State Police Crime Laboratory, any state or federal law enforcement agency, or any hospital or medical laboratory. It shall not, however, include a preliminary screening test of breath performed in order to estimate the alcohol concentration of a person at the scene of a stop or other initial encounter between an officer and the person.

(3) 'drive' shall include driving, operating, or having actual physical control of a vehicle.

(4) 'vehicle' shall include any vehicle as defined in §101(48) of this title, any off-highway vehicle as defined in §I01(54) of this title, any moped as defined in § 101(53) of this title, and any bicycle as defined in §I01(52) of this title.

(2) 'while under the influence' shall mean that the person is, because of alcohol or drugs or a combination of both, less able than the person would ordinarily have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the driving of a vehicle.

(2) 'alcohol concentration of .20 or more' shall mean:

a. An amount of alcohol in a sample of a person's blood equivalent to .20 or more grams of alcohol per hundred milliliters of blood; or

An amount of alcohol in a sample of a person's breath equivalent to 20 or more grams per two hundred ten liters of breath."

Section 5. Amend Section 4177(e), Title 21 of the Delaware Code by adding as the second paragraph thereto the following:

"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 6. Amend Section 4177(f), Title 21 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

"(f) For purposes of a conviction premised upon subsection (a) of this section, or any proceeding pursuant to this Code in which an issue is whether a person was driving a vehicle while under the influence, evidence establishing the presence and concentration of alcohol or drugs in the person's blood, breath, or urine shall be relevant and admissible. Such evidence may include the results from tests of samples of the person's blood, breath or urine taken within four hours after the time of driving or at some later time. In any proceeding, the resulting alcohol or drug concentration reported when a test, as defined in subsection (c)(2) of this section, is performed shall be deemed to be the actual alcohol or drug concentration in the person's blood, breath or urine without regard to any margin of error or tolerance factor inherent in such tests.

(1) Evidence of an alcohol concentration of .05 or less in a person's blood, breath or urine sample taken within four hours of driving and tested as defined in subsection (c)(2) of this section is prima facie evidence that the person was not under the influence of alcohol within the meaning of this statute. Evidence of an alcohol concentration of more than .05 but less than .10 in a person's blood, breath or urine sample taken within four hours of driving and tested as defined in subsection (c)(2) of this section shall not give rise to any presumption that the person was or was not under the influence of alcohol, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcohol.

(2) Evidence obtained through a preliminary screening test of a person's breath in order to estimate the alcohol concentration of the person at the scene of a stop or other initial encounter between a law enforcement officer and the person shall be admissible in any proceeding to determine whether probable cause existed to believe that a violation of this Code has occurred. However, such evidence shall not be admissible in the determination of guilt under this section.

(3) Nothing in this section shall preclude conviction of an offense defined in this Code based solely on admissible evidence other than the results of a chemical test of a person's blood, breath or urine to determine the concentration or presence of alcohol or drugs.

(4) A jury shall be instructed by the court in accordance with the applicable provisions of this subsection in any proceeding pursuant to this Code in which an issue is whether a person was driving a vehicle while under the influence of alcohol or drugs or a combination of both."

Section 7. Amend Section 4I77(g), Title 21 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

"(g) (1) For the purpose of introducing evidence of a person's alcohol concentration pursuant to this section, a report signed by the Forensic Toxologist, Forensic Chemist or State Police Forensic Analytical Chemist who performed the test or tests as to its nature is prima facie evidence, without the necessity of the Forensic Toxologist, Forensic Chemist, or State Police Forensic Analytical Chemist personally appearing in court:

(a) that the blood delivered was properly tested under procedures approved by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner, or the Delaware State Police Crime Laboratory;

(b) that those procedures are legally reliable;

(c) that the blood was delivered by the officer or persons stated in the report; and,

(a) that the blood contained the alcohol therein stated.

(2) Any report introduced under paragraph (1) of this subsection must:

(a) identify the Forensic Toxologist, Forensic Chemist or State Police Forensic Analytical Chemist as an individual certified by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner, the Delaware State Police Crime Laboratory, or any county or municipal police department employing scientific analysis of blood, as qualified under standards approved by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner, or the Delaware State Police Crime Laboratory to analyze the blood;

(b) state that the person made an analysis of the blood under the procedures approved by the Forensic Sciences Laboratory, Office of the Chief Medical Examiner, or the Delaware State Police Crime Laboratory; and,

(c) state that the blood, in his or her opinion, contains the resulting alcohol concentration within the meaning of this section. Nothing in this subsection precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in the report entered pursuant to paragraphs (1) and (2) of this subsection.

(3) For purposes of establishing the chain of physical custody or control of evidence defined in this section, a statement signed by each successive person in the chain of custody that the person delivered it to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery stated, without the necessity of a personal appearance in court by the person signing the statement, in accordance with the same procedures outlined in 10 Del. C. §4331(3).

(4) In a criminal proceeding, the prosecution shall, upon written demand of a defendant filed in the proceedings at least fifteen days prior to the trial, require the presence of the Forensic Toxologist, Forensic Chemist, State Police Forensic Analytical Chemist, or any person in the chain of custody as a witness in the proceeding."

Section 8. Amend Section 4177(h), Title 21 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

"(h) In addition to any other powers of arrest, any law enforcement officer is hereby authorized to arrest without a warrant any person who the officer has probable cause to believe has violated the provisions of this section, regardless of whether the alleged violation was committed in the presence of such officer. This authority to arrest extends to any hospital or other medical treatment facility located beyond the territorial limits of the officer's jurisdiction provided there is probable cause to believe that the violation of this section occurred within the officer's jurisdiction. This authority to arrest also extends to any place where the person is found within four hours of the alleged driving of a vehicle if there is reason to believe the person has fled the scene of an accident in which he or she was involved, and provided there is probable cause to believe that the violation of this section occurred within the officer's jurisdiction,"

Section 9. Amend Section 4177B(a)(4), Title 21 of the Delaware Code by striking said paragraph in its entirety and substituting in lieu thereof the following:

"(4) did not have an alleged alcohol concentration of .20 or more at the time of driving or within four hours of driving; and".

Section 10. Amend Section 4177B(e), Title 21 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

"(e) For purposes of §§2742, 4177, and 417713 of this title, the following shall constitute a prior or previous conviction:

(1) participation in a course of instruction or program of rehabilitation pursuant to §§2742(1),4177, 417713, or 4 I 77D of this title, or any similar statute of any state, local jurisdiction, any federal or military reservation, or the District or Columbia, within the five years immediately preceding the date of the present offense, regardless of the existence or validity of any accompanying attendant plea or adjudication of guilt.

(2) a conviction pursuant to §4I77 of this title, or a similar statute of any state, local jurisdiction, any federal or military reservation, or the District of Columbia, within the five years immediately preceding the date of the present offense;

(3) a conviction, under a criminal statute encompassing death or injury caused to another person by the person's driving, where driving under the influence or with a prohibited alcohol concentration was an element of the offense.

For the purpose of computing the periods of time set out in this subsection, the period shall run from the completion of the course of instruction or from the entry of the judgment of conviction, whichever is later, to the date of the commission of the charged offense.

In any proceeding under §§2742, 4177, or 417713 of this title a person may not challenge the validity of any prior or previous conviction unless he or she first successfully challenges the prior or previous conviction in the court in which the conviction arose and provides written notice of the challenge in the present proceeding to the prosecution at least twenty days before trial."

Section 11. Amend Section 2742(0(2), Title 21 by deleting the entire second sentence of said paragraph and substituting in lieu thereof the following:

"For purposes of this subsection an alcohol concentration of .10 or more pursuant to testing provided for in this section, or §4 I 77 of this title, or a positive indication of the presence of drugs, shall be conclusive evidence of said violation."

Section 12. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to that end the provisions of this Act are declared to severable.

Section 13. Any action, case, prosecution, trial or any other legal proceeding in progress under or pursuant to the previous wording of the sections amended by this Act, no matter what the stage of the proceeding, shall be preserved and shall not become illegal or terminated upon the effective date of this Act. For purposes of such proceedings in progress the prior law shall remain in full force and effect.

Section 14. This Act shall become effective upon signature of the Governor.

Approved April 27, 1995