CHAPTER 209

FORMERLY

HOUSE BILL NO. 199

AS AMENDED BY SENATE AMENDMENT NOS. 1 AND 3

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 Subsection 4177(d), Title 21 of the Delaware Code by striking the phrase "occurring within 5 years from a prior offense" as it appears in paragraphs (2) and (3) of that subsection.

Section 2. Amend Subsection 4177(d), Title 21 of the Delaware Code by striking the second sentence of paragraph (4) in its entirety.

Section 3. Amend Subsection 4177B(a), Title 21 of the Delaware Code by striking paragraph (1) in its entirety and substituting in lieu thereof the following:

"(1) Has never had a previous or prior conviction or offense as defined in subsection (e)(1) of this section."

Section 4. Amend Subsection 4177B(a), Title 21 of the Delaware Code by striking the phrase "§ 41 77(d)(3)" as it appears in paragraph (6) of that subsection and substituting in lieu thereof the phrase "§ 4177(d)(5)".

Section 5. Amend Subsection 4177B(e), Title 21 of the Delaware Code by striking the entire subsection and substituting in lieu thereof the following:

"(e)(1) For purposes of §§ 2742, 4177 and 4177B of this title, the following shall constitute a prior or previous conviction or offense:

a. A conviction pursuant to §§ 4175(b) or 4177 of this title, or a similar statute of any state, local jurisdiction, any federal or military reservation or the District of Columbia;

b. A conviction under a criminal statue 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, whether such conviction was pursuant to a provision of this Code or the law of any state, local jurisdiction, any federal or military reservation or the District of Columbia;

c. Participation in a course of instruction or program of rehabilitation or education pursuant to § 4175(b), § 4177 or § 4177B of this title, or a similar statue of any state, local jurisdiction, any federal or military reservation or the District of Columbia, regardless of the existence or validity of any accompanying attendant plea or adjudication of guilt;

d. A conditional adjudication of guilt, any court order or any agreement sanctioned by a court requiring or permitting a person to apply for, enroll in or otherwise accept first offender treatment or any other diversionary program under this section or a similar statute of any state, local jurisdiction, any federal or military reservation or the District of Columbia.

(2) Time Limitations.

For the purpose of determining the applicability of enhanced penalties pursuant to § 4177 of this title, the time limitations on use of prior or previous convictions or offenses as defined by this subsection shall be:

a. For sentencing pursuant to § 4177(d)(2) of this title, the second offense must have occurred within five years of a prior offense;

b. For sentencing pursuant to § 4177(d)(3) of this title, the third offense must have occurred within five years of the first offense to be calculated for sentencing;

c. For sentencing pursuant to § 4177(d)(4) of this title there shall be no time limitation and all prior or previous convictions or offenses as defined in paragraph (1) of this subsection shall be considered for sentencing under § 4177(d)(4);

d. For any subsection that does not have a time limitation prescribed, all prior or previous convictions or offenses as defined in paragraph (1) of this subsection shall be considered.

(3) Computation of Time Limitations.

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 (I)(c) or (1)(d) of this subsection, the date of the driving incident which caused the adjudication or program participation shall be the date of the prior or previous offense.

(4) Separate and Distinct Offenses. For the purpose of determining the applicability of enhanced penalties pursuant to § 4177 of this title, prior or previous convictions or offenses used to determine eligibility for such enhanced penalties must be separate and distinct offenses, that is, each must be successive to the other with some period of time having elapsed between sentencing or adjudication for an earlier offense or conviction and the commission of the offense resulting in a subsequent conviction.

(5) Challenges to Use of Prior Offenses. In any proceeding under § 2742, § 4177 or § 4177B 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 specific nature of the challenge in the present proceeding to the prosecution at least 20 days before trial."

Approved July 17, 1997