CHAPTER 62

FORMERLY

HOUSE BILL NO. 178

AS AMENDED BY

HOUSE AMENDMENT NOS. 1 AND 2 AND

SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 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 §4177(d)(I), Title 21 of the Delaware Code by adding to the end of that paragraph the following:

"Any period of imprisonment imposed under this paragraph may be suspended."

Section 2. Amend §4177(d)(2), Title 21 of the Delaware Code by striking said paragraph in its entirety and inserting in lieu thereof the following:

"(2) For a second offense occurring within 5 years from a prior offense, be fined not less than $575 nor more than $2,300 and imprisoned not less than 60 days nor more than 18 months. No person sentenced under this paragraph shall receive a suspended sentence."

Section 3. Amend §4177(d), Title 21 of the Delaware Code by adding a new paragraph "(3)"to read as follows and by redesignating the current paragraph "(3)" as paragraph "(5)" of that section:

"(3) For a third offense occurring within 5 years from a prior offense, be guilty of a Class G felony, be fined not less than $1,000 nor more than $3,000 and imprisoned not less than one year nor more than two years. The provisions of §4205(b)(7) or §4217 of Title II or any other statute to the contrary notwithstanding, the first 3 months of the sentence shall not be suspended, but shall be served at Level V and shall not be subject to any early release, furlough or reduction of any kind. No conviction for violation of this section for which a sentence is imposed pursuant to this paragraph shall be considered a predicate felony conviction for sentencing pursuant to §4214 of Title 11. No offense for which sentencing pursuant to this paragraph is applicable shall be considered an underlying felony for a murder in the first degree charge pursuant to §636(a)(2) of Title 11."

Section 4. Amend §4177(d), Title 21 of the Delaware Code by adding a new paragraph "(4)" to read as follows:

"(4) For a fourth or subsequent offense occurring any time after three prior offenses, be guilty of a Class E felony, be fined not less than $2,000 nor more than $6,000 and imprisoned not less than two years nor more than five years. The provisions of §4177B(e) of this title or any other statute notwithstanding, a court may consider prior offenses outside a five year period for sentencing pursuant to this paragraph. The provisions of §4205(b)(5) or §4217 of Title 11 or any other statute to the contrary notwithstanding, the first 6 months of the sentence shall not be suspended, but shall be served at Level V and shall not be subject to any early release, furlough or reduction of any kind. No conviction for violation of this section for which a sentence is imposed pursuant to this paragraph shall be considered a predicate felony conviction for sentencing pursuant to §4214 of Title 11 No offense for which sentencing pursuant to this paragraph is applicable shall be considered any underlying felony for a murder in the first degree charge pursuant to §636(a)(2) of Title 11."

Section 5. Amend §4177(d), Title 21 of the Delaware Code by adding a new paragraph"(6)" to read as follows:

"(6) A person who has been convicted of prior or previous offenses of this section, as defined in §4177B(e) of this title, need not be charged as a subsequent offender in the complaint, information or indictment against him in order to render him liable for the punishment imposed by this section on a person with prior or previous offenses under this section. However, if at any time after conviction and before sentence, it shall appear to the Attorney General or to the sentencing Court that by reason of such conviction and prior or previous convictions, a person should be subjected to paragraphs (3) or (4) of this subsection, the Attorney General shall file a motion to have the defendant sentenced pursuant to those provisions. If it shall appear to the satisfaction of the Court at a hearing on the motion that the defendant falls within paragraphs (3) or (4) of this subsection, the Court shall enter an order declaring the offense for which he is being sentenced to be a felony and shall impose a sentence accordingly."

Section 6. Amend §4177(d), Title 21 of the Delaware Code by adding a new paragraph"(7)" to read as follows:

"(7) The Court of Common Pleas and Justice of the Peace Courts shall not have jurisdiction over offenses which must be sentenced pursuant to paragraphs (3) or (4) of this subsection."

Section 7. Amend §4177(e), Title 21 of the Delaware Code to add the letter "s" to the end of the word "paragraph" thereby making it plural and insert after the symbol "(2)" the phrase ",(3) and (4)" and strike the words "occurring within 5 years from the former offense."

Section 8. Amend §4177(e), Title 21 of the Delaware Code by striking in its entirety the sentence:

"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 9. Amend §4177B(a)(1), Title 21 of the Delaware Code by striking the phrase "not within 5 years" and inserting in lieu thereof the word "never".

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

"(f) The Attorney General may move the sentencing court to apply this section to any person who would otherwise be disqualified from consideration under this section because of the applicability of:

(1) Subsection (a)(1), if any prior offense as defined in subsection (e) of this section is not within five years of the offense for which the person is being sentenced; or

(2) Subsections (a)(2) through (a)(6) of this section.

In the event of such a motion by the Attorney General, the Court may in its discretion apply the terms of this section to such person."

Section 10. Amend §4177B(e) by inserting the phrase "or offense" between the word "conviction" and the colon ":" as they appear in the first sentence of that subsection; and, by striking the phrase "2742(h)" as it appears in subparagraph (1) of that subsection and inserting in lieu thereof the phrase "4175(6)", and, by striking the sentence:

"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 its entirety and inserting in lieu thereof the following:

"For the purpose of computing the periods of time set out in §§2742, 4177, or 4177B of this title, the period shall run from the date of the commission of the prior or previous offense, to the date of the commission of the charged offense. However, in any case in which the prior offense is defined in subparagraph (1) of this subsection the date of the driving incident which caused the program participation shall be the date of the prior or previous offense."

Approved June 12, 1995