CHAPTER 396

FORMERLY

HOUSE SUBSTITUTE NO. 1 FOR

HOUSE BILL NO. 212

AS AMENDED BY

HOUSE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 21 OF THE DELAWARE CODE RELATING TO DRIVER’S LICENSES, DRIVING UNDER THE INFLUENCE AND IGNITION INTERLOCK DEVICE REQUIREMENTS.

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

Section 1. Amend § 2742, Title 21 of the Delaware Code by making the insertions shown by underlining and deletions shown by strikethrough as follows:

(d) No revocation under subsection (b) or (c) of this section is effective until the Secretary or a police officer or other person acting on the Secretary's behalf notifies the person of the revocation and allows the person a 15-day period to request of the Secretary in writing a hearing as herein provided. If no request is filed in writing with the Division of Motor Vehicles within the 15-day period, the order of revocation becomes effective. If a request for a hearing is filed, a revocation is not effective until the final decision of the hearing officer resulting in a decision adverse to the person. Notwithstanding the foregoing provisions of this section, if no request is filed within the 15-day period, but the person has entered the FOE-IID Diversion pursuant to § 4177B(g) of this title, no revocation herein imposed shall be inconsistent with any revocation imposed by participation in the FOE-IID Diversion.

Section 2. Amend Subchapter IX, Chapter 41, Title 21 of the Delaware Code by making such insertions as shown by underlining and deletions as shown by strikethrough follows:

§ 4177 Driving a vehicle while under the influence or with a prohibited alcohol or drug content; evidence; arrests; and penalties.

(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 .08 or more; or

(5) When the person's alcohol concentration is, within 4 hours after the time of driving .08 or more. Notwithstanding any other provision of the law to the contrary, a person is guilty under this subsection, without regard to the person's alcohol concentration at the time of driving, if the person's alcohol concentration is, within 4 hours after the time of driving .08 or more and that alcohol concentration is the result of an amount of alcohol present in, or consumed by the person when that person was driving;

(6) When the person's blood contains, within 4 hours of driving, any amount of an illicit or recreational drug that is the result of the unlawful use or consumption of such illicit or recreational drug or any amount of a substance or compound that is the result of the unlawful use or consumption of an illicit or recreational drug prior to or during driving.

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

(1) Except as provided in paragraph (b)(3)b. of this section, 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) a. No person shall be guilty under paragraph (a)(5) of this section when the person has not consumed alcohol prior to or during driving but has only consumed alcohol after the person has ceased driving and only such consumption after driving caused the person to have an alcohol concentration of .08 or more within 4 hours after the time of driving.

b. No person shall be guilty under paragraph (a)(5) of this section when the person's alcohol concentration was .08 or more at the time of testing only as a result of the consumption of a sufficient quantity of alcohol that occurred after the person ceased driving and before any sampling which raised the person's alcohol concentration to .08 or more within 4 hours after the time of driving.

(3) a. No person shall be guilty under paragraph (a)(6) of this section when the person has not used or consumed an illicit or recreational drug prior to or during driving but has only used or consumed such drug after the person has ceased driving and only such use or consumption after driving caused the person's blood to contain an amount of the drug or an amount of a substance or compound that is the result of the use or consumption of the drug within 4 hours after the time of driving.

b. No person shall be guilty under paragraph (a)(6) of this section when the person has used or consumed the drug or drugs detected according to the directions and terms of a lawfully obtained prescription for such drug or drugs.

c. Nothing in this subsection nor any other provision of this chapter shall be deemed to preclude prosecution under paragraph (a)(2) or (a)(3) of this section.

(4) The charging document may allege a violation of subsection (a) of this section without specifying any particular paragraph of subsection (a) of this section and the prosecution may seek conviction under any of the paragraphs of subsection (a) of this section.

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

(1) "Alcohol concentration of .08 or more" shall mean:

a. An amount of alcohol in a sample of a person's blood equivalent to .08 or more grams of alcohol per 100 milliliters of blood; or

b. An amount of alcohol in a sample of a person's breath equivalent to .08 or more grams per 210 liters of breath.

(2) "Alcohol concentration of .15 or more" shall mean:

a. An amount of alcohol in a sample of a person's blood equivalent to .15 or more grams of alcohol per 100 milliliters of blood; or

b. An amount of alcohol in a sample of a person's breath equivalent to .15 or more grams per 210 liters of breath.

(3) "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 100 milliliters of blood; or

b. An amount of alcohol in a sample of a person's breath equivalent to .20 or more grams per 210 liters of breath.

(34) "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.

(45) "Drive" shall include driving, operating, or having actual physical control of a vehicle.

(56) "Drug" shall include any substance or preparation defined as such by Title 11 or Title 16 or which has been placed in the schedules of controlled substances pursuant to Chapter 47 of Title 16. "Drug" shall also include any substance or preparation having the property of releasing vapors or fumes which may be used for the purpose of producing a condition of intoxication, inebriation, exhilaration, stupefaction or lethargy or for the purpose of dulling the brain or nervous system.

(67) "Illicit or recreational drug" as that phrase is used in paragraph (a)(6) of this section means any substance or preparation that is:

a. Any material, compound, combination, mixture, synthetic substitute or preparation which is enumerated as a Schedule I controlled substance under § 4714 of Title 16; or

b. Cocaine or of any mixture containing cocaine, as described in § 4716(b)(4) of Title 16; or

c. Amphetamine, including its salts, optical isomers and salt of its optical isomers, or of any mixture containing any such substance, as described in § 4716(d)(1) of Title 16; or

d. Methamphetamine, including its salt, isomer or salt of an isomer thereof, or of any mixture containing any such substance, as described in § 4716(d)(3) of Title 16; or

e. Phencyclidine, or of any mixture containing any such substance, as described in § 4716(e)(5) of Title 16; or

f. A designer drug as defined in § 4701 of Title 16; or

g. A substance or preparation having the property of releasing vapors or fumes which may be used for the purpose of producing a condition of intoxication, inebriation, stupefaction or lethargy or for the purpose of dulling the brain or nervous system.

(78) "Unlawful use or consumption" as that phrase is used in paragraph (a)(6) of this section means that the person used or consumed a drug without legal authority to do so as provided by Delaware law. This Code describes the procedure by which a person may lawfully obtain, use or consume certain drugs. In a prosecution brought under paragraph (a)(6) of this section, the State need not present evidence of a lack of such legal authority. In a prosecution brought under paragraph (a)(6) of this section, if a person claims that such person lawfully used or consumed a drug, it is that person's burden to show that person has complied with and satisfied the provisions of this Code regarding obtaining, using or consumption of the drug detected.

(89) "Substance or compound that is the result of the unlawful use or consumption of an illicit or recreational drug" as that phrase is used in paragraph (a)(6) of this section shall not include any substance or compound that is solely an inactive ingredient or inactive metabolite of such drug.

(910) "Vehicle" shall include any vehicle as defined in § 101(80) of this title, any off-highway vehicle as defined in § 101(39) of this title and any moped as defined in § 101(31) of this title.

(1011) "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.

(d) Whoever is convicted of a violation of subsection (a) of this section shall:

(1) For the first offense, be fined not less than $500 nor more than $1,500 or imprisoned not more than 12 months or both. Any period of imprisonment imposed under this paragraph may be suspended.

(2) For a second offense occurring at any time within 10 years of a prior offense, be fined not less than $750 nor more than $2,500 and imprisoned not less than 60 days nor more than 18 months. The minimum sentence for a person sentenced under this paragraph may not be suspended.

(3) For a third offense occurring at any time after 2 prior offenses, be guilty of a class G felony, be fined not more than $5,000 and be imprisoned not less than 1 year nor more than 2 years. The provisions of § 4205(b)(7) or § 4217 of Title 11 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. The sentencing court may suspend up to 9 months of any minimum sentence set forth in this paragraph provided, however, that any portion of a sentence suspended pursuant to this paragraph shall include participation in both a drug and alcohol abstinence program and a drug and alcohol treatment program as set forth in paragraph (d)(9) of this section.

(4) For a fourth offense occurring any time after 3 prior offenses, be guilty of a class E felony, be fined not more than $7,000, and imprisoned not less than 2 years nor more than 5 years. 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. The sentencing court may suspend up to 18 months of any minimum sentence set forth in this paragraph provided, however, that any portion of a sentence suspended pursuant to this paragraph shall include participation in both a drug and alcohol abstinence program and a drug and alcohol treatment program as set forth in paragraph (d)(9) of this section.

(5) For a fifth offense occurring any time after 4 prior offenses, be guilty of a class E felony, be fined not more than $10,000 and imprisoned not less than 3 years nor more than 5 years.

(6) For a sixth offense occurring any time after 5 prior offenses, be guilty of a class D felony, be fined not more than $10,000 and imprisoned not less than 4 years nor more than 8 years.

(7) For a seventh offense occurring any time after 6 prior offenses, or for any subsequent offense, be guilty of a class C felony, be fined not more than $15,000 and imprisoned not less than 5 years nor greater than 15 years.

(8) For the fifth, sixth, seventh offense or greater, the provisions of § 4205(b) or § 4217 of Title 11 or any other statute to the contrary notwithstanding, at least 1/2 of any minimum sentence shall be served at Level V and shall not be subject to any early release, furlough or reduction of any kind. The sentencing court may suspend up to 1/2 of any minimum sentence set forth in this section provided, however, that any portion of a sentence suspended pursuant to this paragraph shall include participation in both a drug and alcohol abstinence program and a drug and alcohol treatment program as set forth in paragraph (d)(9) of this section. No conviction for a violation of this section, for which a sentence is imposed pursuant to this paragraph or paragraph (d)(3) or (d)(4) of this section, shall be considered a predicate felony for conviction or sentencing pursuant to § 4214 of Title 11. No offense for which sentencing pursuant to this paragraph or paragraph (d)(3) or (d)(4) of this section is applicable shall be considered an underlying felony for a murder in the first degree charge pursuant to § 636(a)(2) of Title 11.

(9) Any minimum sentence suspended pursuant to paragraph (d)(3), (d)(4), or (d)(8) of this section shall be upon the condition that the offender shall complete a program of supervision which shall include:

a. A drug and alcohol abstinence program requiring that the offender maintain a period of not less than 90 consecutive days of sobriety as measured by a transdermal continuous alcohol monitoring device or through periodic breath or urine analysis. In addition to such monitoring device, the offender shall participate in periodic, random breath or urine analysis during the entire period of supervision.

b. An intensive inpatient or outpatient drug and alcohol treatment program for a period of not less than 3 months. Such treatment and counseling may be completed while an offender is serving a Level V or Level IV sentence.

c. Any other terms or provisions deemed appropriate by the sentencing court or the Department of Correction.

(10) In addition to the penalties otherwise authorized by this subsection, any person convicted of a violation of subsection (a) of this section, committed while a person who has not yet reached the person's seventeenth birthday is on or within the vehicle shall:

a. For the first offense, be fined an additional minimum of $500 and not more than an additional $1,500 and sentenced to perform a minimum of 40 hours of community service in a program benefiting children.

b. For each subsequent like offense, be fined an additional minimum of $750 and not more than an additional $2,500 and sentenced to perform a minimum of 80 hours of community service in a program benefiting children.

c. Violation of this paragraph shall be considered as an aggravating circumstance for sentencing purposes for a person convicted of a violation of subsection (a) of this section. Nothing in this paragraph shall prevent conviction for a violation of both subsection (a) of this section and any offense as defined elsewhere by the laws of this State.

d. Violation of or sentencing pursuant to this paragraph shall not be 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 paragraph be admissible as evidence in the trial of any civil action.

(11) 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 the person in order to render the person 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 paragraph (d)(3), (d)(4), (d)(5), (d)(6) or (d)(7) 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 paragraph (d)(3), (d)(4), (d)(5), (d)(6) or (d)(7) 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.

(12) If a person enters a guilty plea in a court of competent jurisdiction to a violation of subsection (a) of this section, such action shall constitute a waiver of the right to an administrative hearing as provided for in §2742 of this title and shall act to withdraw any request previously made therefor.

(e) In addition to any penalty for a violation of subsection (a) of this section, the court shall, for any individual with an alcohol concentration of .15 or more or who refused a chemical test, prohibit the person convicted from operating any motor vehicle unless such motor vehicle is equipped with a functioning ignition interlock device; the terms of installation of the device and licensing of the individual to drive shall be as set forth in § 4177C and § 4177E of this title. A person who is prohibited from operating any motor vehicle unless such motor vehicle is equipped with a functioning ignition interlock device under this title at the time of an offense under subsection (a) of this section shall, in addition to any other penalties provided under law, pay a fine of $2,000 and be imprisoned for 60 days.

§ 4177A. Revocation of license for violation of § 4177.

(a) The Secretary shall forthwith revoke the driver's license and/or driving privileges of any person convicted of a violation of § 4177 of this title or any offense under the laws of any state or of the United States or local jurisdiction or the District of Columbia which prohibits driving under the influence of alcohol or drugs. Such revocation shall be for a period of:

(1) First offense -- 12 months; except that if the offender's blood alcohol concentration was between .15 -- .19 the revocation period shall be 18 months, or if the offender's blood alcohol concentration was .20 or greater or the offender refused a chemical test, the period of revocation shall be 24 months.

(2) Second offense -- 18 months; except that if the offender's blood alcohol concentration was between .15-.19 the revocation period shall be 24 months, or if the offender's blood alcohol concentration was .20 or greater, or the offender has refused a chemical test, the revocation period shall be 30 months.

(3) Third offense -- 24 months; except that if the offender's blood alcohol concentration was between .15-.19 the revocation period shall be 30 months, or if the offender's blood alcohol concentration was .20 or greater, or the offender has refused a chemical test, the revocation period shall be 36 months.

(4) Fourth or further subsequent offenses -- 60 months regardless of the blood alcohol concentration.

(b) Any person sentenced under subsection (d) of § 4177 of this title shall have the person's driver's license and/or driving privileges revoked by the Secretary until the person has satisfactorily completed a program established pursuant to § 4177D of this title and complied with the ignition interlock device requirements set forth in §§ 4177C and 4177E of this title.

(c) The Secretary shall have power and authority to refuse to issue a driver's license to any individual whose driver's license or driving privilege was revoked pursuant to this section until such person has satisfied the Secretary that the person has been of good behavior for the entire period of the revocation and until the person has complied with all applicable provisions of this section. If the Secretary refuses to issue a driver's license after the period of revocation has ended and after all fines and/or fees are paid, the applicant may appeal to the Superior Court of the county of residence.

§ 4177B. First offenders; election in lieu of trial.

(a) Any person who:

(1) Has never had a previous or prior conviction or offense as defined in paragraph (e)(1) of this section;

(2) Had not accumulated 3 or more moving violations within 2 years of the date of the offense in question on the person's driving record according to the records of the Division of Motor Vehicles of the person's state of residence; and

(3) Was not, with respect to the offense in question, involved in an accident resulting in injury to any person other than the person's own self; and

(4) Did not have an alleged alcohol concentration of .15 or more at the time of driving or within 4 hours of driving;

(5) Was not driving without a valid license or under a suspended or revoked license at the time of the offense in question; and

(6) Is not subject to the enhanced penalties of § 4177(d)(10) of this title for carrying a child on or within that person's vehicle while driving under the influence;

may qualify for the first offense election at the time of arraignment. The court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and shall place the accused on probation upon terms and conditions, including enrollment in a course of instruction or program of rehabilitation established pursuant to § 4177D of this title. If the accused elects to apply, the application shall constitute a waiver of the right to speedy trial. If the person elects not to apply, or if is not accepted, the person shall promptly be arraigned for a violation of § 4177 of this title. If a person applies for or accepts the first offense election under this section, such act shall constitute agreement to pay the costs of prosecution for the case, and the court shall assess such costs and impose them as a condition of probation. If a person accepts the first offense election under this section, such action shall constitute a waiver of the right to an administrative hearing as provided for in § 2742 of this title and shall act to withdraw any request previously made therefor. If a person accepts the first offense election under this section, and the person has taken a chemical test pursuant to § 2741 of this title, such person may also elect at that time to participate in the First Offense Election -- Ignition Interlock Device Diversion described in subsection (g) of this section. For the purposes of this section, costs of prosecution shall be $250 and any additional costs as established by the appropriate court schedules; and

(b) If a term or condition of probation is violated, including failure to appear for evaluation at an assigned evaluating agency, the person shall be brought before the court, or if the person 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 guilt and proceed as otherwise provided under § 4177 of this title.

(c) Upon fulfillment of the terms and conditions of probation, including satisfactory completion of the course of instruction and/or program of rehabilitation, and payment of all fees, the court shall discharge the person and the proceedings against the person and shall simultaneously with said discharge and dismissal submit to the Division of Motor Vehicles a written report specifying the name of the person and the nature of the proceedings against the person which report shall be retained by the Division of Motor Vehicles for further proceedings, if required.

(d) The driver's license and/or driving privileges of a person applying for enrollment in an education or rehabilitation program pursuant to subsection (a) of this section shall forthwith be revoked by the Secretary for a period of 1 year. If the person is accepted into the education or rehabilitation program the period of revocation shall be for 1 year from the date of the initial revocation. If the person is not accepted for enrollment, or if the person is found by the court to be in violation of the terms of enrollment, the revocation under this section shall continue until sentence is imposed. This revocation shall not be concurrent with or part of any period of revocation established under any other provisions of this subchapter and shall be effective as of the date of sentencing for a period of 1 year.

(e) (1) Prior or previous conviction or offense. -- For purposes of §§ 2742, 4177 and 4177B of this title the provisions of § 4215A of Title 11 shall not be applicable but instead the following shall constitute a prior or previous conviction or offense:

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

b. A conviction or other adjudication of guilt or delinquency 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, 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 statute 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 10 years of a prior offense;

b. For sentencing pursuant to § 4177(d)(3), (d)(4), (d)(5), (d)(6), (d)(7), (d)(8) or (d)(9) of this title there shall be no time limitation and all prior or previous convictions or offenses as defined in paragraph (e)(1) of this section shall be considered for sentencing.

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

(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) Paragraph (a)(1) of this section, if any prior offense as defined in subsection (e) of this section is not within 10 years of the offense for which the person is being sentenced; or

(2) Paragraphs (a)(2), (a)(3), (a)(4), (a)(5) and (a)(6) of this section.

(3) Paragraph (a)(4) of this section. -- However, if a person has a blood alcohol concentration of .15 or greater, § 4177C(c) of this title shall apply. A person with a blood alcohol concentration of .15 or greater shall not be permitted to participate in the FOE-IID program pursuant to § 4177B(g) of this title.

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

(g) First Offense Election -- Ignition Interlock Device Diversion. -- If a person accepts the first offense election under this section, such person may also elect at that time to participate in the First Offense Election -- Ignition Interlock Device (FOE-IID) Diversion as part of that person's probation. If a person elects to participate in the FOE-IID Diversion, such act shall constitute an agreement to all terms and conditions contained in the Ignition Interlock Device Program set forth in § 4177F of this title and the participant shall waive the right to an administrative hearing as provided for in § 2742 of this title or shall withdraw any request previously made therefor. Failure to comply with any part of this section or § 4177F of this title shall be considered a violation of the participant's probation for the purposes of subsection (b) of this section.

§ 4177C. Ignition interlock licenses Conditional; reinstatement of license.

(a) Any person who, as a first offender, is enrolled in a course of instruction and/or program of rehabilitation pursuant to § 4177B of this title shall be permitted to apply for a conditional license under the following terms:

(1) Satisfactory completion of at least 16 hours of instruction and/or rehabilitation;

(2) Payment of all fees under the schedule adopted by the Secretary;

(3) Three months have elapsed since the effective date of revocation.

(b)(a) Any person who, as a first offender enrolled in a course of instruction or program of rehabilitation pursuant to §§ 4177B and 4177D of this title shall be permitted to apply for an ignition interlock license under the following terms: has entered a first offense election pursuant to §4177B of this Title shall be immediately eligible to apply for an ignition interlock device license under the following terms:

(1) At least 1 month has elapsed since the effective date of the revocation.

(21) All licenses have been surrendered to the Division of Motor Vehicles prior to issuance of the IID [ignition interlock device] license.

(2) The person has installed an ignition interlock device on a minimum of 1 vehicle owned or operated by the individual or may have the device installed on a vehicle owned by another person if there are no vehicles owned by the offender.

(c) Any person who, as a first offender with a blood alcohol concentration of .15 or greater or a first offender who refused a chemical test, has been permitted to participate in the first offender's election pursuant to § 4177B of this title, and is enrolled in a course of instruction and/or program of rehabilitation pursuant to § 4177D of this title shall have an ignition interlock device installed on a minimum of 1 vehicle registered in that person's name or may have the device installed on a vehicle owned by another person if there are no vehicles registered in the name of the offender, immediately following the effective date of revocation. The ignition interlock device shall remain installed on the vehicle for a period of 6 months from the effective date of revocation. That offender may be eligible to apply for an ignition interlock device license under the following terms:

(1) At least 45 days has elapsed since the effective date of the revocation.

(2) All licenses have been surrendered to the Division of Motor Vehicles prior to issuance of the IID (Ignition Interlock Device) license.

(d) (b) Any person who, as a first offender is sentenced pursuant to § 4177(d) of this title, and whose blood alcohol concentration is .15 or greater or has refused a chemical test, and is enrolled in a course of instruction and/or program of rehabilitation pursuant to § 4177D of this title shall be eligible to apply for the ignition interlock device installed on a minimum of 1 vehicle registered in that person's name or may have the device installed on a vehicle owned by another person if there are no vehicles registered in the name of the offender, immediately following the effective date of revocation. That offender may be eligible to apply for an IID license under the following terms: an ignition interlock device license under the following terms:

(1) a. At least 30 days has elapsed since the effective date of the revocation if the person’s blood alcohol concentration was below .15; or

b. At least 45 days has elapsed since the effective date of the revocation if the person’s blood alcohol concentration was .15 or greater.

(2) All licenses have been surrendered to the Division of Motor Vehicles prior to issuance of the IID license.

(3) The person has installed an ignition interlock device on a minimum of 1 vehicle owned or operated by the individual or may have the device installed on a vehicle owned by another person if there are no vehicles owned by the offender.

(ec) Any person who, as a second or subsequent offender or who has refused a chemical test, is sentenced pursuant to § 4177(d) of this title, shall 12 months following the effective date of the revocation, have the ignition interlock device installed on all vehicle or vehicles registered in that person's name or may have the device installed on a vehicle owned by another person if there are no vehicles registered in the name of the offender. That offender may be eligible to apply for an IID license under the following terms:;

(1) a. For a person sentenced as a second offender pursuant to §4177(d) of this title, at least 60 days have elapsed since the effective date of the revocation;

b. For a person sentenced as a third offender pursuant to §4177(d) of this title, at least 90 days have elapsed since the effective date of the revocation;

c. For a person sentenced as a fourth or subsequent offender pursuant to §4177(d) of this title, at least 6 months have elapsed since the effective date of the revocation.

(12) Satisfactory completion of The person is enrolled in or has satisfactorily completed a course of instruction and/or program of rehabilitation pursuant to § 4177D of this title.

(2) At least 12 months have elapsed since the effective date of the revocation.

(3) All licenses have been surrendered to the Division of Motor Vehicles prior to issuance of the IID license.

(4) The person has installed an ignition interlock device on all vehicles owned or operated by the individual or may have the device installed on a vehicle owned by another if there are no vehicles owned by the offender.

(fd) Reinstatement of License. Notwithstanding §§ 4177A and 4177B of this title, any person who has satisfactorily completed a course and/or program established pursuant to § 4177D of this title, shall be permitted to apply for reinstatement of their driver's license and/or driving privilege under the following terms:

(1) Payment of all fees under the schedule adopted by the Secretary;

(2) For a person who elected to enroll in a course of instruction or program of rehabilitation pursuant to § 4177B of this title, at least 4 (6) months have elapsed since the effective date of the revocation ignition interlock device was installed on the vehicle or vehicles and the ignition interlock license was issued.

(3) For a person sentenced for a first offense pursuant to § 4177 of this title, whose blood alcohol concentration was below .15, at least 12 months have elapsed since the effective date of the revocation ignition interlock device was installed on the vehicle or vehicles and the ignition interlock license was issued.

(4) For a person sentenced for a first offense pursuant to § 4177 of this title, whose blood alcohol concentration was .l5 to .19, at least 17 months have elapsed since the day the ignition interlock device was installed on the vehicle or vehicles and the ignition interlock license was issued.

(5) For a person sentenced for a first offense pursuant to § 4177 of this title, whose blood alcohol concentration was .20 or greater, at least 23 months have elapsed since the day the ignition interlock device was installed on the vehicle or vehicles and the ignition interlock license was issued.

(6) For a person sentenced for a second offense pursuant to § 4177 of this title, at least 6 16 months have elapsed since the day the ignition interlock device was installed on the vehicle or vehicles and the ignition interlock license was issued.

(7) For a person sentenced for a second offense pursuant to § 4177 of this title, whose blood alcohol concentration was .15 to .19, at least 12 22 months have elapsed since the day the ignition interlock device was installed on the vehicle or vehicles and the ignition interlock license was issued.

(8) For a person sentenced for a second offense pursuant to § 4177 of this title, whose blood alcohol concentration was .20 or greater, at least 18 28 months have elapsed since the day the ignition interlock device was installed on the vehicle or vehicles and the ignition interlock license was issued.

(9) For a person sentenced for a third offense pursuant to § 4177 of this title, at least 12 21 months have elapsed since the day the ignition interlock device was installed on the vehicle or vehicles and the ignition interlock license was issued.

(10) For a person sentenced for a third offense pursuant to § 4177 of this title, whose blood alcohol concentration was .15 to .19 or greater, at least 18 27 months have elapsed since the day the ignition interlock device was installed on the vehicle or vehicles and the ignition interlock license was issued.

(11) For a person sentenced for a third offense pursuant to § 4177 of this title, whose blood alcohol concentration was .20 or greater, at least 24 33 months have elapsed since the day the ignition interlock was installed on the vehicle or vehicles and the ignition interlock license was issued.

(12) For a person sentenced for a fourth or further subsequent offense pursuant to § 4177 of this title, at least 48 54 months have elapsed since the day the ignition interlock device was installed on the vehicle or vehicles and the ignition interlock license was issued.

(g) Notwithstanding § 4177 of this title, any person subject to a period of voluntary revocation pursuant to § 4177F(f)(1) of this title who has satisfactorily completed a course and/or program established pursuant to § 4177D of this title, shall be permitted to apply for a driver's license under the following terms:

(1) Payment of all fees under the schedule adopted by the Secretary;

(2) At least 5 months have elapsed since the day an IID was installed on the person's motor vehicle.

(h) Notwithstanding any other provision to the contrary, any person whose alcohol concentration is less than .08 (l) who is convicted of a first offense pursuant to § 4177 of this title, (2) who makes a first offense election pursuant to § 4177B of this title, or (3) whose license is revoked for a first offense pursuant to Chapter 27 of this title, where it is not established that the person was under the influence of any other intoxicating substance, shall be granted a conditional license immediately upon application, and shall not be required to complete a course of instruction established under § 4177D of this title. Nothing in this subsection shall be read to imply that an individual with an alcohol concentration of less than .08 is under the influence of alcohol.

§4177E. Issuance of Conditional license upon revocation of driver’s license.

(a) In the event of a revocation of a driver's license pursuant to § 4177B of this title, the Department may issue a conditional license during the period of revocation upon application by the applicant upon a form prescribed by the Department and sworn to by the applicant, provided that the applicant sets forth in said application that the revocation of such license has created an extreme hardship, that no prior conditional license has been issued within the preceding 12 months, that there have been no other such prior revocations, and if all other requirements contained in § 4177C of this title have been satisfactorily complied with.

(b) The Department, upon receiving a record of conviction of any person upon a charge of operating a motor vehicle in violation of the conditions imposed upon said conditional license during the period of such conditional license, shall immediately extend the period of such revocation for an additional like period and shall forthwith direct such person to surrender said conditional license to the Department.

(c) Any person whose driver's license has been revoked and to whom a conditional license has been issued, under this chapter, and who drives any motor vehicle upon the highways of this State contrary to the conditions placed upon such conditional license during the period of such conditional license shall be guilty of an unclassified misdemeanor, and, upon conviction thereof, shall be fined not less than $28.75 or more than $230.

§ 4177F. Ignition Interlock Device Program.

(a) Application. - The Division of Motor Vehicles may offer, on a voluntary basis, participation in the Ignition Interlock Device Program under this section to eligible persons who submit a written application on the forms designated by the Division.

(b) Definitions. -- For the purpose of this section:

(1) "Ignition interlock device" (IID) or "approved device" shall mean ignition equipment approved by the Director of the Division of Motor Vehicles pursuant to this section, designed to prevent a motor vehicle from being operated by a person who has consumed alcoholic beverages.

(3) "Service provider" means a legal entity which the Director of the Division of Motor Vehicles finds complies with the requirements of this section and approves to install IIDs on participants' motor vehicles.

(4) "Offender" means a person whose license or driving privileges have been revoked for violating § 4177 of this title. Notwithstanding any contrary provision of law, a person who elects to apply and is accepted for probation under § 4177B of this title shall be an "offender" convicted of an "offense" for the purposes of this section.

(5) "Participant" means an offender who is eligible to and does participate in the Ignition Interlock Program pursuant to this section.

(6) "Lockout" means any time a participant attempts to use a motor vehicle equipped with an IID and any percentage of alcoholic beverages is measured on said device.

(c) IID Standards. -- The Division of Motor Vehicles shall establish the required calibration settings and shall provide standards for the certification, installation, setting, repair and removal of the IIDs.

(d) Eligibility. -- An offender who has taken a chemical test required pursuant to § 2741 of this title and has accepted the first offense election pursuant to § 4177B of this title, or who has no prior offense who refuses a chemical test required pursuant to § 2741 of this title, shall be eligible to receive an IID pursuant to this section if the offender meets the following conditions:

(1) The offender must have had a Delaware driver's license at the time of the offense in question;

(2) Following revocation, the offender must complete an alcohol evaluation, provide proof of enrollment in a course of instruction and/or program of rehabilitation and pay all associated fees;

(3) The offense in question may not involve death or serious physical injury to any person;

(4) The offender's driving privileges or license must not be currently suspended, revoked, denied or unavailable for any other violations of the law of any jurisdiction;

(5) The offender's driving privileges or license must not be revoked pursuant to § 1009 of Title 10 or a like provision of another jurisdiction;

(6) The offender must either own the motor vehicle to be installed with the IID or file the notarized approval of installation by the motor vehicle owner with the Division of Motor Vehicles;

(7) The offender must not have participated in an IID program within the immediate past 5 years or a like program in any other jurisdictions;

(8) The offender must provide proof of insurance for the vehicle on which the IID will be installed. The proof of insurance must verify that the offender is permitted to drive the specific motor vehicle in question regardless of ownership of the vehicle;

(9) The court, whether upon a motion by the Attorney General or otherwise, shall not have designated the offender ineligible to be a participant; and

(10) The offender shall meet any other eligibility criteria established by regulations of the Division of Motor Vehicles.

(e) Installment payment of costs; indigent program. -- The Division of Motor Vehicles shall establish a payment plan for participants. The plan shall be administered by the service provider and the participant shall make all payments under the plan to the service provider. The initial payment shall include the installation cost and 2 months' lease for a minimum charge and a minimum down payment of $180. The participant shall thereafter make payments every 2 months for the lease of the equipment in the amount of $110 until the balance is paid. The Division may increase the minimum amount by regulation. Any taxes due shall be payable in addition to minimum amounts at the time of each payment.

The Division shall further develop and implement an indigent plan for impoverished persons, which shall be available on a lottery basis. For every 20 devices installed at regular prices, at least 1 device shall be provided at approximately half price under this program.

(f) Program duration; suspension of sentence. -- A participant's license revocation imposed by law shall automatically be suspended upon the participant's entry into the IID Program and shall be suspended for the duration thereof. By entering the program, the participant consents, among the other conditions of the program, to a voluntary period of license revocation, to wit:

(1) If the revocation period suspended is 12 months, and the participant has elected the FOE-IID Diversion pursuant to § 4177B(g) of this title, the participant's voluntary revocation period is 12 months and the participant may receive an IID license after 1 month.

(2) If the revocation period suspended is 12 months, and the participant has no prior offense but has refused a chemical test required pursuant to § 2741 of this title, the participant's voluntary revocation period is 14 months, and the participant may receive an IID license after 2 months.

(3), (4) [Deleted.]

The participant shall receive credit towards the voluntary revocation period for the revocation time served prior to entry into the IID program.

(g) IID license; driving record. -- An offender's driving record maintained by the Division of Motor Vehicles shall indicate any voluntary revocation period to be served under the IID program. The Division of Motor Vehicles shall issue an IID license to an otherwise eligible participant. Each of the IID license, the registration of the vehicle on which the IID is installed and the participant's driving record maintained by the Division of Motor Vehicles shall indicate that the participant shall not operate any motor vehicle except when equipped with an Ignition Interlock Device.

(h) Conditions of participation.

(1) A participant shall be disqualified from further participation in the IID Program for failure to comply with any of the following:

a. The participant shall abide by the terms of the offender's lease with the service provider as approved by the Division of Motor Vehicles;

b. The participant shall be driven to the service provider by a licensed driver for installation of the IID;

c. The participant shall comply with Division of Motor Vehicles regulations concerning IID license restrictions;

d. The participant shall not attempt, nor allow or cause an attempt to bypass, tamper with, disable or remove the IID or its wires in connection;

e. The participant offender shall not attempt to operate a motor vehicle without possessing registration and an IID license which complies with subsection (g) of this section;

f. The participant shall not violate any section of this title relating to the use, possession or consumption of alcohol or intoxicating substances;

g. The participant shall not fail to pay any and all fines whatsoever assessed during participation in the program pursuant to this title;

h. The participant shall accumulate no more than 5 points per year;

i. The offender shall continue to meet all eligibility criteria identified in subsection (d) of this section, and specifically, shall successfully complete the course of instruction and/or program of rehabilitation referred to in paragraph (2) of subsection (d) of this section;

j. The participant shall provide satisfactory proof to the Division of Motor Vehicles that an approved IID has been installed; and

k. The participant shall comply with any participation regulations implemented by the Division of Motor Vehicles pursuant to this paragraph.

(2) A participant may be disqualified from further participation in the IID Program for failure to comply with any of the following:

a. The participant shall not fail or refuse to take random tests at such times and by such means as the Division of Motor Vehicles requires;

b. The participant shall keep scheduled monitoring appointments with the Division and the service provider; and

c. The participant shall be required to report to the service provider on a bi-monthly basis for service of the approved IID.

(i) Disqualification. -- The Secretary of the Department of Transportation, upon 10 days prior notice by certified mail, may disqualify a participant at any time upon a determination by the Secretary that the participant has failed to comply with any of the requirements of subsection (h) of this section. Upon disqualification, the ignition interlock device must remain on the vehicle or vehicles for the balance of the period required based on the revocation and reinstatement requirements as specified in § 4177C of this title; however, no driving authority will be granted during this remaining period. The participant will be responsible for all fees for the device during this period.

(j) Discharge. -- At the time a participant completes the duration of the IID program without disqualification by the Secretary, the revocation suspended at the time the participant entered the IID program shall automatically be discharged.

§ 4177GE. Subsequent Offense Ignition Interlock Device Program.

(a) Participation. -- All persons convicted of an subsequent offense must participate in the Subsequent Offense Ignition Interlock Device Program as specified herein.

(b) Definitions. -- For the purpose of this section:

(1) "Ignition interlock device" (IID) or "approved device" shall mean ignition equipment approved by the Director of the Division of Motor Vehicles pursuant to this section, designed to prevent a motor vehicle from being operated by a person who has consumed alcoholic beverages.

(2) "Service provider" means a legal entity which the Director of the Division of Motor Vehicles finds complies with the requirements of this section and approves to install IIDs on participants' motor vehicles.

(3) "Subsequent oOffense" means a first offenders election pursuant to § 4177B of this title or a conviction for a second, third, fourth or greater offense pursuant to § 4177 of this title.

(4) "Offender" means a person convicted of a second, third, fourth or greater offense pursuant to § 4177 of this title who has accepted a first offender election pursuant to § 4177B or been convicted of violating § 4177 of this title.

(5) "Lockout" means any time an subsequent offender attempts to use a motor vehicle equipped with an IID and any percentage of alcoholic beverages is measured on said device.

(c) IID Standards. -- The Division of Motor Vehicles shall establish the required calibration setting and shall provide standards for the certification, installation, setting, repair and removal of the IIDs.

(d) Requirements. --

(1) A person convicted of a subsequent offense shall, 12 months from the effective date of revocation of that person's driver's license, install an ignition interlock device in all motor vehicles registered in the name of that person for the remainder of the revocation time period as provided in § 4177A(a) of this title. Every offender shall be subject to the ignition interlock requirements of this section and § 4177C during any period of revocation imposed for an offense. If at any time after the 12 months have elapsed but before the end of the revocation period, the person registers a motor vehicle(s) in the person's name, that person shall immediately install an ignition interlock device in such vehicle(s).

(2) Except as otherwise provided in §4177C of this title for first offenders, A a person covered under paragraph (d)(1) of this section must have the ignition interlock device installed in all motor vehicles in that person’s name that the person owns or operates, or both, for the required minimum periods as specified in § 4177C(f d) of this title prior to the reinstatement of that person’s driver’s license.

(3) An offender’s driving record maintained by the Division of Motor Vehicles shall indicate any revocation period to be served under the IID program. The Division of Motor Vehicles shall issue an IID license to an otherwise eligible participant. Each of the IID license, the registration of the vehicle on which the IID is installed and the participant’s driving record maintained by the Division of Motor Vehicles shall indicate that the participant shall not operate any motor vehicle except when such vehicle is equipped with an Ignition Interlock Device.

(e) Installment payment of costs; indigent program. -- The Division of Motor Vehicles shall establish a payment plan for all persons obtaining an IID under this section. The plan shall be administered by the service provider(s) and the person obtaining the IID shall make all payments under the plan to the service providers(s). The initial payment shall include the installation cost and 2 months' lease for a minimum charge and a minimum down payment of $180. The person obtaining an IID shall thereafter make payments every 2 months for the lease of the equipment in the amount of $110 until the balance is paid. The Division may increase the minimum amount by regulation. Any taxes due shall be payable in addition to minimum amounts at the time of each payment. The Division shall further develop and implement an indigent plan for impoverished persons, which shall be available on a lottery basis. For every 20 devices installed at regular prices, at least 1 device shall be provided at approximately half price under this program.

(f) Subsequent offender IID license. --

(1) All persons convicted of an subsequent offense shall , 12 months from the effective date of the revocation of their driver's license, be eligible for an subsequent offender IID license as set forth in § 4177C of this Title if the following conditions are met:

a. The subsequent offender must have had a Delaware driver's license at the time of the offense that caused the revocation be a Delaware resident;

b. The subsequent offender has had an IID placed on any vehicle registered in that person’s name pursuant to subsection (d) of this section; The offender has had an IID installed on a minimum of one vehicle owned or operated, or both, by the individual; provided, however, that a person convicted of a second, third, fourth or greater offense pursuant to §4177 of this title must have an IID installed on each of the motor vehicles owned or operated, or both, by the individual. subsection (d) of this section;

c. The subsequent offender must have completed an alcohol evaluation and enrolled in a course of instruction and/or a program of rehabilitation and paid all associated fees;

dc. The subsequent offender's driving privileges or license must not be currently suspended, revoked, denied or unavailable for any other violations of the law of any jurisdiction that would prohibit the issuance of the IID, unless it is determined by the Secretary of Transportation or the Secretary's designee that the individual is eligible for reinstatement;

ed. The subsequent offender's driving privilege or license must not be revoked pursuant to § 1009 of Title 10 or a like provision of another jurisdiction;

fe. The subsequent offender must install an IID in all motor vehicles that person will operate;

gf. The subsequent offender must either own the motor vehicle in which the IID is to be installed or file the notarized approval of installation by the motor vehicle owner with the Division of Motor Vehicles;

hg. The subsequent offender must provide proof of insurance for the vehicle on which the IID will or has been installed. The proof of insurance must verify that the offender is permitted to drive the specific motor vehicle in question regardless of ownership of the vehicle;

i. The court, whether upon a motion by the Attorney General or otherwise, shall not have designated the subsequent offender ineligible to have a subsequent offender IID license; and

jh. The subsequent offender shall meet any other eligibility criteria established by § 4177C of this Title or by regulations of the Division of Motor Vehicles.

(2) An subsequent offender shall lose the privilege of having an subsequent offender IID license for failure to comply with any of the following:

a. The subsequent offender shall abide by the terms of the subsequent offender's lease with the service provider as approved by the Division of Motor Vehicles;

b. The subsequent offender shall comply with the Division of Motor Vehicles regulations concerning subsequent offender IID license restrictions;

c. The subsequent offender shall not attempt, nor allow or cause an attempt to bypass, tamper with, disable or remove the IID or its wires in connection;

d. The subsequent offender shall not attempt to operate a motor vehicle without possessing registration and an subsequent offender IID license which complies with subsection (f) of this section;

e. The subsequent offender shall not violate any section of this title relating to the use, possession or consumption of alcohol or intoxicating substances;

f. The subsequent offender shall accumulate no more than 5 points per year;

g. The subsequent offender shall continue to meet all eligibility criteria identified in paragraph (1) of this subsection;

h. The subsequent offender shall provide proof to the Division of Motor Vehicles that an approved IID has been installed prior to being issued an IID license;

i. The subsequent offender shall not fail or refuse to take random tests at such times and by such means as the Division of Motor Vehicle requires;

j. The subsequent offender shall keep scheduled appointments with the Division and the service provider; and

k. The subsequent offender shall be required to report to the service provider on a bimonthly basis for service of the approved IID.

Section 3. The Division of Motor Vehicles may promulgate any regulations necessary to implement the provisions of this Act.

Section 4. In no case shall the repeal or amendment of any statute or statutory provision by this Act have the effect of releasing or extinguishing any penalty, forfeiture or liability incurred under such statute or statutory provision, and such statute or statutory provision shall be treated as remaining in full force and effect for the purpose of sustaining any proper action or prosecution for enforcement of such penalty, forfeiture or liability. Any action, case, prosecution trial or other legal proceeding in progress under or pursuant to any statute or statutory provision repealed or amended by this Act shall be preserved and shall not become illegal or terminated irrespective of the stage of such proceedings. For the purpose of such proceedings, the prior law shall remain in full force and effect.

Section 5. The provisions of this Act shall take effect 180 days after enactment, which shall be contingent and occur upon appropriation by the General Assembly or receipt by incentive grant of any funds to implement its provisions.

Approved August 06, 2014

Note: Due to numbering issues it was determined that repealed sections 4177E and 4177F would not be replaced with new text, but would have “Repealed” designations inserted. All other sections remain as currently numbered.