CHAPTER 565

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR

HOUSE BILL NO. 514

AS AMENDED BY HOUSE AMENDMENT NO. 1 AND

HOUSE AMENDMENT NO. 1 TO HOUSE AMENDMENT NO. 1

AN ACT TO AMEND Turn 23 OF THE DELAWARE CODE RELATING TO THE OPERATION OF A VESSEL OR BOAT WHILE UNDER THE INFLUENCE. OF INTOXICATING LIQUOR AND/OR DRUGS.

BE IT ENACTED BY THE GENERAL. ASSEMBLY OF THE STATE 01: DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend § 2301, Title 23 of the Delaware Code, by redesignating subsection (a) as subsection (1). by redesignating subsection (b) as subsection (e). and by inserting new subsections, to read:

"(a) 'alcohol concentration of 0.10 or more shall mean:

1. An amount of alcohol in at sample of a person's blood equivalent to 0.10 or more grains of alcohol per hundred 'Milliners of blood: or

2. An amount of alcohol in a sample of a person's breath equivalent to 0.10 or more grams per two hundred ten liters of breath.

(b) '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 hem cell a law enforcement officer and the person.

(c) 'Operating a vessel or vessel operation' shall include driving, operating or having actual physical control of a vessel or boat.

(d) 'Prior or previous offense' shall mean:

1. A conviction pursuant to this chapter, or a similar statute of any state, local jurisdiction or the District of Columbia, within 5 years immediately preceding the date of the present offense; or

2. A conviction, under a criminal statute encompassing death or injury, caused to another person by the person's operation of a vessel, where operating a vessel 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 § 2305 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. In any proceeding under § 2305 of this title. a person may not challenge the validity of any prior or previous conviction unless that person 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 20 days before trial."

"(g) '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 judgement, sufficient physical control, or due care in the operation of a vessel or boat."

Section 2. Amend § 2302(a), Title 23 of the Delaware Code, by striking the text: "while under the influence of intoxicating liquor or drugs or any combination of drugs and/or intoxicating liquors" and by inserting in lieu thereof a colon [:], and by adding new paragraphs, to read:

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

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

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

drug;

(4) when the person's alcohol concentration is 0.10 or more; or

(5) when the person's alcohol concentration is, within four hours after the time of vessel operation, 0.10 or more."

Section 3. Amend § 2302, Title 23 of the Delaware Code, by inserting new subsections, to read:

"(d) It shall be an affirmative defense to a prosecution premised on subsection (a) (5) of this section if the person proves by a preponderance of evidence that the person consumed a sufficient quantity of alcohol after the time of actual vessel operation and before any sampling to cause the person's alcohol concentration to exceed 0.10. Such evidence shall not be admitted unless notice of this defense is given to the prosecution at least twenty days before trial.

(e) The charging document may allege a violation of subsection (a) of this section 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 § 2303, Title 23 of the Delaware Code, by redesignating subsections "(g)" and "(h)" as "(m)" and "(n)", respectively.

Section 5. Amend § 2303, Title 23 of the Delaware Code, by striking subsection (f). and inserting in lieu thereof the following:

"(f) Admissibility in evidence of remits of chemical test - For purposes of a conviction premised upon § 2302(a) of this title or any proceeding pursuant to this code in which an issue is whether a person was operating a vessel 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 our hours of operating the vessel or at some later time. In any proceeding, the resulting alcohol or drug concentration reported when a test, as defined in § 2301(6) of this title, 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.

(g) Evidence of an alcohol concentration of 0.05 or less in a person's blood breath, or urine sample taken within four hours of operating a vessel and tested as defined in § 2301(b) of this title is prima facie evidence that the person was not under the influence of alcohol within the meaning of this chapter. Evidence of an alcohol concentration of more than 0.05 but less than 0.10 in a person's blood, breath, or urine sample taken within four hours of operating a vessel and tested as defined in § 230 I (b) of this title 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.

(h) 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.

(i) Nothing in this section shall preclude conviction of an offense defined in this chapter 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.

(j) A jury shall be instructed by the court in accordance with the applicable provisions of this section in any proceeding pursuant to this chapter in which an issue is whether a person was operating a vessel while under the influence.

(k) For the purposes 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 the State Police Forensic Analytical Chemist personally appearing in court:

(1) 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;

(2) That those procedures are legally reliable;

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

(4) That the blood contained the alcohol therein stated.

(l) Any report introduced under subsection (k ) of this section must:

(1) Identify the Forensic Toxologist, Forensic Chemist, or State Police 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 blood;

(2) State that the person made the 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

(3) State that the blood, in the person's opinion, contains the resulting alcohol concentration within the meaning of this chapter.

Nothing in this section precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in the report entered pursuant to subsection (k) and (I) of this section,

(4) For purposes of establishing the chain of physical custody or control of evidence defined in this section which is necessary to admit such evidence in any proceeding, 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).

(5) 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 Analytical Chemist, or any person necessary to establish the chain of custody as a witness in the proceeding. The chain of custody or control of evidence defined in this section is established when there is evidence sufficient to eliminate any reasonable probability that such evidence has been tampered with, altered. Or misidentified."

Section 6. Amend § 2305. Title 23 of the Delaware Code, by striking subsections (2) and (3). and by inserting new text, to read:

"(2) For a second offense occurring within 5 years from a prior offense. he tined not less than $500 nor more than $2,000. and imprisoned not less than 60 days, nor more than 18 months. No person sentenced under this subsection shall receive a suspended sentence.

(3) For a third offense occurring within 5 years from a prior offense. be guilty of a Class C 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 11 of the Delaware Code 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 an early release. furlough, or reduction of any kind. No conviction for violation of this chapter for which a sentence is imposed pursuant to this subsection shall be considered a predicate felony conviction tor sentencing pursuant to § 4214 of Title 11 of the Delaware Code. No offense for which sentencing pursuant to this subsection is applicable shall he considered an underlying felony for a murder in the first degree charge pursuant to § 636(a)(2) of Title 11 of the Delaware Code.

(4) For a fourth or subsequent offense occurring any time after three prior offenses. be guilty of a Class I: Felony, be lined nut less than $2.000 nor more than $6.000 and imprisoned not less than two years nor more than tie y ears. I he provisions of this title or any other statute notwithstanding, a court_ may consider prior offense, outside a five-year period for sentencing pursuant to this subsection. The provisions § 4205(b)(5) or § 4217 of Title 11 of the Delaware Code or any other statute to the contrary notwithstanding. the first 6 months of the sentence shall not be suspended. but shall he served at Level V and shall not be subject to any early release, furlough or reduction of any kind. No conviction for violation or this chapter for which a sentence is imposed pursuant to this subsection shall be considered a predicate felony conviction for sentencing pursuant to § 4214 of Title 11 of the Delaware Code. No offense for which sentencing pursuant to this subsection is applicable shall be considered an underling felony for a murder in the first degree charge pursuant to § 636(a)(2) of Title 11 of the Delaware Code.

(3) In addition to the penalties otherwise authorized by this section, a person convicted of a violation of § 2302(a) of this title committed while a person who has not yet reached his or her seventeenth birthday is on or in the vessel shall.

(a) For the first offense, be lined an additional minimum or $200 and out more than an additional $1,000 and sentenced to perform a minimum of forty hours of community service in a program benefiting children.

(b) For each subsequent like offense be fined an additional minimum of $500 and not more than an additional $2.000 and sentenced to perform a minimum of eighty hours of community service in a program benefiting children.

(c) Violation of this subsection shall he considered as an aggravating circumstance for sentencing purposes for a person convicted of a violation of 2302(a) of this title. Nothing in this subsection shall prevent conviction for a violation of both § 2302(a) of this title and any offense as defined elsewhere by the laws or this state.

(d) Violation of or sentencing pursuant to this subsection shall not he considered as evidence of either comparative or contributory negligence in any civil suit or insurance claim. nor shall a violation of or sentencing pursuant to this subsection be admissible as evidence in the trial of any civil action.

(6) a person who has been convicted of prior or previous offenses under this chapter need not he charged as -a subsequent offender in the complaint, information or indictment against the person in order to render the person liable for the punishment imposed by this chapter on a person with prior or previous offenses under this chapter. 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 he subjected to subsection (3) or (4) of this section. 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 subsection (3) or (4) of this section, the court shall enter an order declaring the offense for which the defendant is being sentenced to be a felony and shall impose a sentence accordingly.

(7) The Justice of the Peace Courts shall have jurisdiction for violations of this chapter, except those offenses which must be sentenced pursuant to subsection (3) or (4) of this section.

(8) In addition to the penalties prescribed in subsections (2), (3), and (4) of this section. anyone convicted of a subsequent like offense shall be ordered to complete a program or education or rehabilitation which may include inpatient treatment and he followed by such other programs as established by the training facility, not to exceed a total of IS months, and pay a fee not to exceed the maximum line.-

Section 7. Amend § 2306. Title 23 of the Delaware Code. by striking the text thereof in its entirety. and by inserting in place thereof new text, to read:

"In addition to any other powers of arrest. any law enforcement officer is hereby authorized to arrest without warrant any person who the officer has probable cause to believe has violated the provisions of this chapter, 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 chapter 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 operation of a vessel if there is reason to believe the person has tied the scene of an accident in which the person was involved, and provided there is probable cause to believe that the violation of this chapter occurred within the officer's jurisdiction.-

Approved July 19, 1996