TITLE 21

Motor Vehicles

Operation and Equipment

CHAPTER 41. Rules of the Road

Subchapter IX. Reckless Driving; Driving While Intoxicated

§ 4175. Reckless driving.

(a) No person shall drive any vehicle in wilful or wanton disregard for the safety of persons or property, and this offense shall be known as reckless driving.

(b) Whoever violates subsection (a) of this section shall for the first offense be fined not less than $100 nor more than $300, or be imprisoned not less than 10 nor more than 30 days, or both. For each subsequent like offense occurring within 3 years of a former offense, the person shall be fined not less than $300 nor more than $1,000, or be imprisoned not less than 30 nor more than 60 days, or both. 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. Whoever is convicted of violating subsection (a) of this section and who has had the charge reduced from the violation of § 4177(a) of this title shall, in addition to the above, be ordered to complete a course of instruction or program of rehabilitation established under § 4177D of this title and to pay all fees in connection therewith. In such cases, the court disposing of the case shall note in the court’s record that the offense was alcohol-related or drug-related and such notation shall be carried on the violator’s motor vehicle record.

21 Del. C. 1953, §  4175;  54 Del. Laws, c. 160, §  165 Del. Laws, c. 503, §  1970 Del. Laws, c. 186, §  175 Del. Laws, c. 315, §  6

§ 4175A. Aggressive driving.

(a) No person shall drive any vehicle in an aggressive manner, as defined by this section, and such offense shall be known as aggressive driving.

(b) For purposes of this section, “aggressive manner” shall mean that an individual engages in continuous conduct which violates 3 or more of the following sections:

(1) Section 4107 of this title, relating to obedience to traffic-control devices;

(2) Section 4108 of this title, relating to traffic control signals;

(3) Section 4117 of this title, relating to overtaking on the right;

(4) Section 4122 of this title, relating to driving within a traffic lane;

(5) Section 4123 of this title, relating to following too closely;

(6) Section 4132 of this title, relating to yielding to the right-of-way;

(7) Section 4133 of this title, relating to vehicles entering the roadway;

(8) Section 4155 of this title, relating to use of turn signals;

(9) Section 4164 of this title, relating to stop signs and yield signs;

(10) Section 4166(d) of this title, relating to overtaking and passing school buses;

(11) Section 4168 of this title, relating to speed restrictions; and

(12) Section 4169, relating to specific speed limits.

(c) Whoever violates this section shall for the first offense be fined not less than $100 nor more than $300 or be imprisoned not less than 10 nor more than 30 days, or both. For each subsequent like offense occurring within 3 years of a former offense, the person shall be fined not less than $300 nor more than $1,000 or be imprisoned not less than 30 nor more than 60 days, or both, and the person shall have their driving privileges suspended for a period of 30 days.

(d) In addition to the penalties imposed pursuant to subsection (c) of this section, whoever violates this section shall be ordered to complete a course of instruction established by the Secretary to address behavior modification or attitudinal driving. The Secretary shall administer such courses and programs and adopt rules and regulations therefor, and shall establish a schedule of fees for enrollment in such courses and programs that shall not exceed the maximum fine imposed pursuant to subsection (c) of this section.

(e) Nothing in this section shall be construed to preclude or otherwise limit a prosecution of or conviction for a violation of this chapter or any other provision of law. A person may be prosecuted and convicted of both the offense of aggressive driving and 1 or more underlying offenses as defined elsewhere by the laws of the State.

72 Del. Laws, c. 216, §  173 Del. Laws, c. 113, §  174 Del. Laws, c. 285, §  1

§ 4176. Careless or inattentive driving.

(a) Whoever operates a vehicle in a careless or imprudent manner, or without due regard for road, weather and traffic conditions then existing, shall be guilty of careless driving.

(b) Whoever operates a vehicle and who fails to give full time and attention to the operation of the vehicle, or whoever fails to maintain a proper lookout while operating the vehicle, shall be guilty of inattentive driving.

(c) Whoever violates this section shall for the first offense be fined not less than $25 nor more than $75. For each subsequent like offense occurring within 3 years of a former offense, the person shall be fined not less than $50 nor more than $95.

(d) [Repealed.]

21 Del. C. 1953, §  4175A;  56 Del. Laws, c. 30560 Del. Laws, c. 701, §  4765 Del. Laws, c. 503, §  2068 Del. Laws, c. 9, §  3170 Del. Laws, c. 186, §  177 Del. Laws, c. 464, §  178 Del. Laws, c. 208, §§  8-1081 Del. Laws, c. 195, § 2

§ 4176A. Operation of a vehicle causing death; unclassified misdemeanor.

(a) A person is guilty of operation of a vehicle causing death when, in the course of driving or operating a motor vehicle or OHV in violation of any provision of this chapter other than § 4177 of this title, the person’s driving or operation of the vehicle or OHV causes the death of another person.

(b) Operation of a vehicle causing death is an unclassified misdemeanor.

(c) Notwithstanding any provision of law to the contrary, a person convicted of operation of a vehicle causing death shall for the first offense be fined not more than $1,150 and imprisoned not more than 30 months. For each subsequent conviction under this section the person shall be fined not more than $2,300 and imprisoned not more than 60 months.

(d) The Superior Court has original and exclusive jurisdiction over a violation of this section by a person 18 years of age or older. Notwithstanding any provision of law to the contrary, an offense which is within the original and/or exclusive jurisdiction of another court and which may be joined properly with a violation of this section is deemed to be within the original and exclusive jurisdiction of the Superior Court.

74 Del. Laws, c. 99, §  1

§ 4176B. Cell phone use by school bus drivers; penalties.

(a) No driver shall operate a school bus on any highway while using a cell telephone while such vehicle is in motion and such vehicle is transporting 1 or more children; provided, that this section shall not apply to communications made to and from a central dispatch, school transportation department or its equivalent when the bus is not equipped with a functioning 2-way radio.

(b) For the purposes of this section, “cell telephone” means a cellular, analog, wireless or digital telephone.

(c) Whoever violates this section shall for the first offense be fined not less than $50 nor more than $100. For each subsequent offense the person shall be fined not less than $100 nor more than $200 and shall have that person’s school bus endorsement removed from that person’s driver’s license for a period of at least 6 months.

(d) It is an affirmative defense to prosecution under this section that the driver’s use of a cell telephone was necessitated by a bona fide emergency.

74 Del. Laws, c. 318, §  170 Del. Laws, c. 186, §  1

§ 4176C. Electronic communication devices; penalties.

(a) No person shall drive a motor vehicle on any highway while using an electronic communication device while such motor vehicle is in motion.

(b) For the purposes of this section, the following terms shall mean:

(1) “Cell telephone” shall mean a cellular, analog, wireless or digital telephone.

(2) “Electronic communication device” shall mean a cell telephone, personal digital assistant, electronic device with mobile data access, laptop computer, pager, broadband personal communication device, 2-way messaging device, electronic game, or portable computing device.

(3) “Engages or engaging in a call” shall mean when a person talks into or listens on an electronic communication device, but shall not mean when a person dials or punches a phone number on an electronic communication device.

(4) “Hands-free electronic communication device” shall mean an electronic communication device that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such electronic communication device, by which a user engages in a call without the use of either hand or both hands.

(5) “Hands-free equipment” shall mean the internal feature or function of a hands-free electronic communication device or the attachment or addition to a hands-free electronic communication device by which a user may engage in a call without the use of either hand or both hands.

(6) “Using” shall mean holding in a person’s hand or hands an electronic communication device while:

a. Viewing or transmitting images or data;

b. Playing games;

c. Composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages or other electronic data; or

d. Engaging in a call.

(c) Subsection (a) of this section shall not apply to:

(1) A law-enforcement officer, a firefighter, an emergency medical technician, a paramedic or the operator of an authorized emergency vehicle in the performance of their official duties;

(2) A person using an electronic communication device to report to appropriate authorities a fire, a traffic accident, a serious road hazard, or medical or hazardous materials emergency, or to report the operator of another motor vehicle who is driving in a reckless, careless or otherwise unsafe manner or who appears to be driving under the influence of alcohol or drugs, or to report any crime;

(3) A person using a cell telephone who is operating a school bus and covered under § 4176B of this title;

(4) A person engaging in a call with a hands-free electronic communication device while utilizing hands-free equipment and such person does not hold the hands-free electronic communication device in such person’s hand or hands;

(5) The activation or deactivation of hands-free equipment or a function of hands-free equipment;

(6) A person driving or operating an unregistered farm tractor, farm truck or farm equipment;

(7) Use of an amateur radio by an FCC-licensed amateur radio operator; and

(8) A person who during their course of employment with a business or government entity uses a 2-way radio mounted or attached to a motor vehicle to communicate with a central dispatch, base of operation, or with other employees of such business or government entity.

(d) Whoever violates this section shall for the first offense be subject to a civil penalty of $100. For each subsequent like offense occurring within 2 years of the former offense the person shall be subject to a civil penalty of not less than $200 nor more than $300. For each civil penalty of $100 that is assessed under this subsection, $20 shall be paid over to the State Treasury to be deposited into the Volunteer Ambulance Company Fund, in addition to the $10 penalty assessed pursuant to § 4101(j) of Title 11. For each civil penalty between $200 and $300 that is assessed under this subsection, 20% shall be paid over to the State Treasury to be deposited into the Volunteer Ambulance Company Fund, in addition to the $10 penalty assessed pursuant to § 4101(j) of Title 11.

(e) No motor vehicle points shall be assessed for a violation of this section.

77 Del. Laws, c. 343, §  177 Del. Laws, c. 344, §  177 Del. Laws, c. 345, §  178 Del. Laws, c. 279, §  180 Del. Laws, c. 405, § 181 Del. Laws, c. 221, § 1

§ 4176D. Operation of a motor vehicle during an emergency.

(a) No person shall operate a motor vehicle on a highway, express highway, roadway or private road as defined in § 101 of this title when a Level 3 Driving Ban or a Level 2 Driving Restriction has been activated during an emergency, unless the person is a first responder, essential personnel, or a waiver has been granted, pursuant to § 3116(b)(12) of Title 20.

(b) Whoever violates this section shall for the first offense be fined not less than $25 nor more than $115. For each subsequent like offense, the person shall be fined not less than $50 nor more than $200, or imprisoned not less than 10 nor more than 30 days, or both.

77 Del. Laws, c. 447, §  1

§ 4176E. Operation of a vehicle causing serious physical injury to a vulnerable user.

(a) As used in this section, “vulnerable user” means any of the following:

(1) A pedestrian who is lawfully on or within a highway, crosswalk, improved or unimproved shoulder of a highway, or sidewalk.

(2) An individual actively engaged in work upon a highway, in work upon utility facilities upon or along a highway, or in the provision of emergency services upon, within, or adjacent to a highway.

(3) An individual riding an animal or driving an animal-drawn carriage, or a passenger of the individual, lawfully on or within a highway or improved or unimproved shoulder of a highway.

(4) An individual operating or a passenger on or in any of the following, when any of the following is lawfully on or within a highway, crosswalk, improved or unimproved shoulder of a highway, or sidewalk:

a. A farm tractor or similar vehicle designed primarily for farm use.

b. A skateboard.

c. Roller skates.

d. In-line skates.

e. A scooter.

f. A moped.

g. A bicycle or a device that is an extension of a bicycle, such as an extend-a-bike, a bicycle trailer, or a child’s bicycle seat.

h. A motorcycle.

i. A nonmotorized or motorized wheelchair.

j. An electric personal assistive mobility device.

(b) A person is guilty of operation of a vehicle causing serious physical injury to a vulnerable user when, in the course of driving or operating a motor vehicle or OHV in violation of any provision of this chapter other than § 4177 of this title, the person’s driving or operation of the vehicle or OHV causes serious physical injury, as defined in § 222 of Title 11, to a vulnerable user.

(c) The Superior Court has original and exclusive jurisdiction over a violation of this section by a person 18 years of age or older. Notwithstanding any provision of law to the contrary, an offense which is within the original or exclusive jurisdiction of another court and which may be joined properly with a violation of this section is deemed to be within the original and exclusive jurisdiction of the Superior Court.

(d) A person who violates this section is guilty of a violation. Unless suspended under subsection (e) of this section, the Superior Court must impose upon a person convicted under this section all of the following:

(1) A fine of $550.

(2) A suspension of the person’s license or driving privileges, or both, for up to 1 year.

(3) A requirement that the person complete a traffic safety course approved by the Division of Motor Vehicles.

(4) A requirement that the person perform not less than 10, nor more than 100, hours of community service which must include activities related to driver improvement and providing public education on traffic safety.

(e) The Superior Court may suspend up to $500 of the fine and the imposition of the suspension of the person’s license or driving privileges, or both. Any sentence suspended under this subsection must be suspended on the condition that the person completes the remaining provisions of the sentence. If any sentence is suspended, the Superior Court shall set a hearing date at a time within 1 year of the date of sentencing. At that hearing, the Superior Court shall do one of the following:

(1) If the person has successfully completed the requirements described in paragraphs (d)(3) and (d)(4) of this section, dismiss the penalties suspended under this subsection.

(2) If the person has not successfully completed the requirements described in paragraphs (d)(3) and (d)(4) of this section do 1 of the following:

a. Grant the person an extension based on good cause shown. The Court may not grant more than 1 extension for good cause shown.

b. Impose those portions of the sentence suspended under subsection (e) of this section.

(f) Nothing in this section is deemed to preclude prosecution under any other provision of this chapter.

81 Del. Laws, c. 195, § 1

§ 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, 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.

(4) “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, Division of Forensic Science, 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.

(5) “Drive” shall include driving, operating, or having actual physical control of a vehicle.

(6) “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.

(7) “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.

(8) “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.

(9) “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.

(10) “Vehicle” shall include any vehicle as defined in § 101(86) of this title, any off-highway vehicle as defined in § 101(45) of this title and any moped as defined in § 101(36) of this title.

(11) “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. The sentencing Court may suspend the minimum sentence set forth in this subsection upon the condition that the offender shall successfully complete the Court of Common Pleas Driving Under the Influence Treatment Program in which the offender shall complete a minimum of 30 days of community service.

(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, 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) The Court of Common Pleas and Justice of the Peace Courts shall not have jurisdiction over offenses which must be sentenced pursuant to paragraph (d)(3), (d)(4), (d)(5), (d)(6), (d)(7), (d)(8) or (d)(9) of this section.

(13) The Justice of the Peace Court shall have jurisdiction to accept pleas of guilt and to impose sentence for violations of this section that are not subject to sentencing pursuant to paragraphs (d)(3) through (d)(9) of this section and to enter conditional adjudications of guilt requiring or permitting a person to enter a first offender election pursuant to § 4177B of this title. The Justice of the Peace Court shall not have jurisdiction to try any violations of this section. If an offense or criminal case within the exclusive jurisdiction of a justice of the peace or alderman or mayor of any incorporated city or town, except the City of Newark, is or may be joined properly with a violation of this section, such offense or criminal case shall remain joined with any violation of this section for the purpose of trial.

(14) 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.

(15) Notwithstanding any law to the contrary, the phrase “all crimes” as used in the Truth in Sentencing Act of 1989 shall include felonies under this section, and any amendments thereto.

(e) In addition to any penalty for a violation of subsection (a) of this section, the court shall 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 § 4177G 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.

(f) In addition to any penalty for a violation of subsection (a) of this section, the court shall order the person to complete an alcohol evaluation and to complete a program of education or rehabilitation pursuant to § 4177D of this title which may include inpatient treatment and be followed by such other programs as established by the treatment facility, not to exceed a total of 15 months and to pay a fee not to exceed the maximum fine; provided however, that successful completion of the Court of Common Pleas Driving Under the Influence Treatment Program shall satisfy this requirement.

(g) For purposes of a conviction premised upon subsection (a) of this section, or any proceeding pursuant to this Code in which an issue is whether a person was driving a vehicle while under the influence, evidence establishing the presence and concentration of alcohol or drugs in the person’s blood, breath or urine shall be relevant and admissible. Such evidence may include the results from tests of samples of the person’s blood, breath or urine taken within 4 hours after the time of driving or at some later time. In any proceeding, the resulting alcohol or drug concentration reported when a test, as defined in paragraph (c)(3) of this section, is performed shall be deemed to be the actual alcohol or drug concentration in the person’s blood, breath or urine without regard to any margin of error or tolerance factor inherent in such tests.

(1) Evidence 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 may only be admissible in proceedings for the determination of guilt when evidence or argument by the defendant is admitted or made relating to the alcohol concentration of the person at the time of driving.

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

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

(h) (1) For the purpose of introducing evidence of a person’s alcohol concentration or the presence or concentration of any drug pursuant to this section, a report signed by the Forensic Toxicologist, 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 Toxicologist, Forensic Chemist or State Police Forensic Analytical Chemist personally appearing in court:

a. That the blood delivered was properly tested under procedures approved by the Division of Forensic Science, or the Delaware State Police Crime Laboratory;

b. That those procedures are legally reliable;

c. That the blood was delivered by the officer or persons stated in the report; and,

d. That the blood contained the alcohol, drugs or both therein stated.

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

a. Identify the Forensic Toxicologist, Forensic Chemist or State Police Forensic Analytical Chemist as an individual certified by the Division of Forensic Science, 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 Division of Forensic Science, or the Delaware State Police Crime Laboratory to analyze the blood;

b. State that the person made an analysis of the blood under the procedures approved by the Division of Forensic Science or the Delaware State Police Crime Laboratory; and,

c. State that the blood, in that person’s opinion, contains the resulting alcohol concentration or the presence or concentration of any drug within the meaning of this section.

Nothing in this subsection precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in the report entered pursuant to paragraphs (h)(1) and (2) of this section.

(3) 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 § 4331(3) of Title 10.

(4) In a criminal proceeding, the prosecution shall, upon written demand of a defendant filed in the proceedings at least 15 days prior to the trial, require the presence of the Forensic Toxicologist, Forensic Chemist, State Police Forensic 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.

(i) In addition to any other powers of arrest, any law-enforcement officer is hereby authorized to arrest without a warrant any person who the officer has probable cause to believe has violated the provisions of this section, regardless of whether the alleged violation was committed in the presence of such officer. This authority to arrest extends to any hospital or other medical treatment facility located beyond the territorial limits of the officer’s jurisdiction provided there is probable cause to believe that the violation of this section occurred within the officer’s jurisdiction. This authority to arrest also extends to any place where the person is found within 4 hours of the alleged driving of a vehicle if there is reason to believe the person has fled the scene of an accident in which that person was involved, and provided there is probable cause to believe that the violation of this section occurred within the officer’s jurisdiction.

(j) Any court in which a conviction of or guilty plea to a driving under the influence offense shall include the blood alcohol concentration of the defendant (if any is on record) when forwarding notice of said conviction or guilty plea to the Division of Motor Vehicles.

21 Del. C. 1953, §  4176;  54 Del. Laws, c. 160, §  157 Del. Laws, c. 71, §§  1-357 Del. Laws, c. 526, §§  1, 257 Del. Laws, c. 613, §  157 Del. Laws, c. 670, §  13B58 Del. Laws, c. 80, §  359 Del. Laws, c. 46, §§  1, 260 Del. Laws, c. 701, §§  48, 4960 Del. Laws, c. 702, §  261 Del. Laws, c. 474, §  264 Del. Laws, c. 13, §  1367 Del. Laws, c. 437, §§  1, 268 Del. Laws, c. 9, §  3268 Del. Laws, c. 125, §  169 Del. Laws, c. 325, §§  2, 370 Del. Laws, c. 26, §§  1-870 Del. Laws, c. 34, §  170 Del. Laws, c. 62, §§  1-870 Del. Laws, c. 186, §  170 Del. Laws, c. 265, §  270 Del. Laws, c. 474, §  170 Del. Laws, c. 553, §  271 Del. Laws, c. 209, §§  1, 271 Del. Laws, c. 222, §§  2, 372 Del. Laws, c. 36, §§  1-3, 5, 673 Del. Laws, c. 352, §§  1, 1173 Del. Laws, c. 432, §  474 Del. Laws, c. 182, §§  1-374 Del. Laws, c. 285, §  474 Del. Laws, c. 333, §§  1, 275 Del. Laws, c. 315, §§  1-575 Del. Laws, c. 397, §  1577 Del. Laws, c. 162, §§  1-678 Del. Laws, c. 167, §§  1-1878 Del. Laws, c. 349, §  179 Del. Laws, c. 265, §  1679 Del. Laws, c. 378, §§  3, 579 Del. Laws, c. 396, §  280 Del. Laws, c. 75, §  280 Del. Laws, c. 120, §  180 Del. Laws, c. 136, §  180 Del. Laws, c. 168, §  180 Del. Laws, c. 289, § 181 Del. Laws, c. 51, § 182 Del. Laws, c. 93, § 1

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

(a) The Secretary shall forthwith revoke the driver’s license or driving privileges of a 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. The Secretary shall revoke the person’s driver’s license or driving privileges for 1 of the following periods, as applicable:

(1) First offense. — 12 months; except that if the person’s blood alcohol concentration was .15 or greater, but less than .20, the revocation period must be 18 months, or if the person’s blood alcohol concentration was .20 or greater, or the person refused a chemical test, the revocation period must be 24 months.

(2) Second offense. — 18 months; except that if the person’s blood alcohol concentration was .15 or greater, but less than .20, the revocation period must be 24 months, or if the person’s blood alcohol concentration was .20 or greater, or the person refused a chemical test, the revocation period must be 30 months.

(3) Third offense. — 24 months; except that if the person’s blood alcohol concentration was .15 or greater, but less than .20, the revocation period must be 30 months, or if the person’s blood alcohol concentration was .20 or greater, or the person refused a chemical test, the revocation period must be 36 months.

(4) Fourth or further subsequent offenses. — 60 months regardless of the person’s blood alcohol concentration.

(b) (1) The Secretary shall reinstate the driver’s license or driving privileges of a person sentenced under § 4177(d) of this title if the person does 1 of the following:

a. Completes the requirements for reinstatement under § 4177C(d) of this title.

b. Completes the requirements for reinstatement under the Court of Common Pleas Driving Under the Influence Treatment Program under § 4177C(g) of this title.

(2) The Secretary shall reinstate the driver’s license or driving privileges of a person sentenced under § 4177(d) of this title who is not eligible for the IID Program under § 4177G of this title, or who did not apply to obtain an IID license or participate in the IID Program under §§ 4177C and 4177G of this title and whose license revocation period under this section has elapsed, if the person does all of the following:

a. Pays all fees under the schedule adopted by the Secretary.

b. Satisfactorily completes a course or program established under § 4177D of this title.

c. Does not operate a vehicle during the person’s revocation period.

(c) (1) Notwithstanding the requirement in subsection (b) of this section that the Secretary reinstate the driver’s license or driving privileges of a person sentenced under § 4177(d) of this title if the person complies with the requirements for reinstatement, the Secretary may refuse to reinstate the person’s driver’s license or driving privileges if the Secretary finds that the person has not been of good behavior for the entire period of the revocation.

(2) The Secretary must provide the person, in writing, with the basis for the finding and the conditions to be met to reinstate the person’s driver’s license or driving privileges.

(3) If the Secretary refuses to reinstate the person’s driver’s license or driving privileges under this subsection after the person’s revocation period has ended and the person has paid all fines or fees, the person may appeal the Secretary’s decision to the Superior Court for the county in which the person resides.

61 Del. Laws, c. 474, §  263 Del. Laws, c. 430, §§  13, 1464 Del. Laws, c. 13, §§  14, 1569 Del. Laws, c. 125, §  269 Del. Laws, c. 190, §  170 Del. Laws, c. 186, §  173 Del. Laws, c. 352, §  273 Del. Laws, c. 432, §  175 Del. Laws, c. 397, §§  1-3, 16-1878 Del. Laws, c. 167, §  2079 Del. Laws, c. 378, §  279 Del. Laws, c. 396, §  282 Del. Laws, c. 235, § 1

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

(a) (1) A person qualifies for the first offenders election under this section if the person meets all of the following:

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

b. 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.

c. 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.

d. Did not have an alleged blood alcohol concentration of .15 or more at the time of driving or within 4 hours of driving.

e. Was not driving without a valid license or under a suspended or revoked license at the time of the offense in question.

f. 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.

(2) If a person applies and qualifies for the first offenders election under this section, all of the following apply:

a. 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 under § 4177D of this title.

b. The application constitutes a waiver of the right to speedy trial.

c. The application and acceptance of the first offenders election constitutes agreement to pay the costs of prosecution for the case. The court shall assess such costs and impose them as a condition of probation. For the purposes of this section, costs of prosecution are $250 and any additional costs as established by the appropriate court schedules.

d. The application constitutes a waiver of the right to an administrative hearing under § 2742 of this title and acts to withdraw any request previously made for such a hearing.

(3) If a person elects not to apply for the first offender election under this section, or is not qualified, the court shall promptly arraign the person for a violation of § 4177 of this title.

(b) If a person is alleged to have violated a term or condition of probation, including failure to appear for evaluation at an assigned evaluating agency, the court shall hold a hearing to determine if a term or condition has been violated and, if so, shall enter an adjudication of guilt and proceed as otherwise provided under § 4177 of this title.

(1) The court shall provide notice of the hearing required under this section and the alleged violation of a term or condition of probation to the person.

(2) If the person fails to appear for the hearing required under this section, the court may proceed with the hearing.

(c) (1) If a person fulfills the terms and conditions of probation, including satisfactory completion of the course of instruction or program of rehabilitation, and payment of all fees, the court shall do both of the following:

a. Discharge the person and the proceedings against the person.

b. 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.

(2) The Division of Motor Vehicles shall retain the report issued under paragraph (c)(1)b. of this section for further proceedings, if required.

(d) The Secretary shall forthwith revoke the driver’s license or driving privileges of a person who applies for the first offender election under subsection (a) of this section for a period of 1 year.

(1) If the person qualifies for and accepts the first offender election, the revocation period is for 1 year from the date of the initial revocation.

(2) If the person does not qualify for, or is not accepted into, the first offender election, or if the person is found by the court to be in violation of a term or condition of probation, the revocation period under this section continues until sentence is imposed. This revocation period is not concurrent with or part of any other revocation period established under this subchapter and is 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 and 4177 of this title and this section, § 4215A of Title 11 does not apply. Instead, all of the following constitute a prior or previous conviction or offense:

a. A conviction or other adjudication of guilt or delinquency under § 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 blood alcohol concentration or an illicit or recreational drug content was an element of the offense, whether such conviction was under this Code or the law of any state or 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 under § 4175(b) or § 4177 of this title, this section, or a similar statute of any state or 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, court order, or 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 or 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 under § 4177 of this title, the time limitations on use of prior or previous convictions or offenses under this subsection are as follows:

a. For sentencing under § 4177(d)(2) of this title, the second offense must have occurred within 10 years of a prior or previous offense.

b. For sentencing under § 4177(d)(3), (d)(4), (d)(5), (d)(6), (d)(7), (d)(8), or (d)(9) of this title, there is not a time limitation and all prior or previous convictions or offenses as defined in paragraph (e)(1) of this section must 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 must be considered.

(3) Computation of time limitations. — For the purpose of computing the periods of time under § 2742 or § 4177 of this title or this section, the period runs 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 or previous offense is defined in paragraph (e)(1)c. or d. of this section, the date of the driving incident which caused the adjudication or program participation is the date of the prior or previous offense.

(4) Separate and distinct offenses. — For the purpose of determining the applicability of enhanced penalties under § 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 or § 4177 of this title or this section, 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) (1) The Attorney General may move the sentencing court to apply this section to a person who would otherwise be disqualified from consideration under this section because of the applicability of any of the following:

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

b. Paragraphs (a)(1)b., (a)(1)c., (a)(1)d., (a)(1)e., and (a)(1)f. of this section.

c. [Repealed.]

(2) If the Attorney General makes a motion under paragraph (f)(1) of this section, the court may apply the terms of this section to the person.

(g) [Repealed.]

61 Del. Laws, c. 474, §  263 Del. Laws, c. 430, §  1564 Del. Laws, c. 13, §  1669 Del. Laws, c. 134, §  170 Del. Laws, c. 26, §§  9, 1070 Del. Laws, c. 34, §§  2, 370 Del. Laws, c. 62, §§  9, 1070 Del. Laws, c. 186, §  171 Del. Laws, c. 209, §§  3-572 Del. Laws, c. 92, §§  1, 274 Del. Laws, c. 182, §  474 Del. Laws, c. 333, §  374 Del. Laws, c. 345, §  875 Del. Laws, c. 397, §  477 Del. Laws, c. 160, §§  1, 277 Del. Laws, c. 162, §  778 Del. Laws, c. 167, §§  21-2779 Del. Laws, c. 396, §  282 Del. Laws, c. 235, § 2

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

(a) A person who enters a first offender election under § 4177B of this title is immediately eligible to apply for an ignition interlock device (IID) license under § 4177G(f) of this title if all of the following apply:

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

(2) The person has an IID installed on each vehicle the person will, or does, operate during the period under paragraph (d)(4) of this section, regardless of whether the vehicle is owned by the person.

(b) A person who, as a first offender, is sentenced under § 4177(d) of this title, and is enrolled in a course of instruction or program of rehabilitation under § 4177D of this title is eligible to apply for an IID license under § 4177G(f) of this title if all of the following apply:

(1) The following time period has elapsed since the effective date of the person’s revocation period:

a. At least 30 days, if the person’s blood alcohol concentration was below .15.

b. At least 45 days, if the person’s blood alcohol concentration was .15 or greater.

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

(3) The person has an IID installed on each vehicle the person will, or does, operate during the period under paragraph (d)(4) of this section, regardless of whether the vehicle is owned by the person.

(c) A person who, as a second or subsequent offender, is sentenced under § 4177(d) of this title is eligible to apply for an IID license under § 4177G(f) of this title if all of the following apply:

(1) The following time period has elapsed since the effective date of the person’s revocation period:

a. At least 60 days, for a person sentenced as a second offender under § 4177(d) of this title.

b. At least 90 days, for a person sentenced as a third offender under § 4177(d) of this title.

c. At least 6 months, for a person sentenced as a fourth or subsequent offender under § 4177(d) of this title.

(2) The person is enrolled in or has satisfactorily completed a course of instruction or program of rehabilitation under § 4177D of this title.

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

(4) The person has an IID installed on each vehicle the person will, or does, operate during the period under paragraph (d)(4) of this section, regardless of whether the vehicle is owned by the person.

(d) Reinstatement of license. — Notwithstanding §§ 4177A(a) and 4177B(d) of this title, the Secretary shall reinstate the driver’s license or driving privileges of a person who has done all of the following:

(1) Paid all fees under the schedule adopted by the Secretary.

(2) Satisfactorily completed a course or program established under § 4177D of this title.

(3) Satisfactorily completed the IID program under § 4177G of this title or, if disqualified from the program under § 4177G(f)(4) of this title, did both of the following during the entire balance of the person’s revocation period plus any extensions under § 4177G(f)(3) of this title:

a. Not operate a vehicle.

b. Kept an IID on each vehicle on which it was installed on the date of disqualification from the IID program.

(4) Meets 1 of the following:

a. For a person who enters a first offenders election under § 4177B of this title, at least 4 months have elapsed since the IID was installed on each vehicle as required under paragraph (a)(2) of this section and the IID license was issued.

b. For a person sentenced for a first offense under § 4177 of this title, whose blood alcohol concentration was below .15, at least 12 months have elapsed since the IID was installed on each vehicle as required under paragraph (b)(3) of this section and the IID license was issued.

c. For a person sentenced for a first offense under § 4177 of this title, whose blood alcohol concentration was .15 or greater, but less than .20, at least 17 months have elapsed since the IID was installed on each vehicle as required under paragraph (b)(3) of this section and the IID license was issued.

d. For a person sentenced for a first offense under § 4177 of this title, whose blood alcohol concentration was .20 or greater, at least 23 months have elapsed since the IID was installed on each vehicle as required under paragraph (b)(3) of this section and the IID license was issued.

e. For a person sentenced for a second offense under § 4177 of this title, whose blood alcohol concentration was below .15, at least 16 months have elapsed since the IID was installed on each vehicle as required under paragraph (c)(4) of this section and the IID license was issued.

f. For a person sentenced for a second offense under § 4177 of this title, whose blood alcohol concentration was .15 or greater, but less than .20, at least 22 months have elapsed since the IID was installed on each vehicle as required under paragraph (c)(4) of this section and the IID license was issued.

g. For a person sentenced for a second offense under § 4177 of this title, whose blood alcohol concentration was .20 or greater, at least 28 months have elapsed since the IID was installed on each vehicle as required under paragraph (c)(4) of this section and the IID license was issued.

h. For a person sentenced for a third offense under § 4177 of this title, whose blood alcohol concentration was below .15, at least 21 months have elapsed since the IID was installed on each vehicle as required under paragraph (c)(4) of this section and the IID license was issued.

i. For a person sentenced for a third offense under § 4177 of this title, whose blood alcohol concentration was .15 or greater, but less than .20, at least 27 months have elapsed since the IID was installed on each vehicle as required under paragraph (c)(4) of this section and the IID license was issued.

j. For a person sentenced for a third offense under § 4177 of this title, whose blood alcohol concentration was .20 or greater, at least 33 months have elapsed since the IID was installed on each vehicle as required under paragraph (c)(4) of this section and the IID license was issued.

k. For a person sentenced for a fourth or further subsequent offense under § 4177 of this title, at least 54 months have elapsed since the IID was installed on each vehicle as required under paragraph (c)(4) of this section and the IID license was issued.

(e) Notwithstanding any other provision to the contrary, a person whose blood alcohol concentration is less than .08, and does not otherwise have an illicit or recreational drug content in the person’s blood, must be granted a conditional license immediately upon application, if otherwise eligible, and may not be required to complete a course of instruction established under § 4177D of this title before the issuance of the conditional license if the person meets any of the following:

(1) Is convicted of a first offense under § 4177 of this title.

(2) Makes a first offenders election under § 4177B of this title.

(3) Has a license revoked for a first offense under Chapter 27 of this title, where it is not established that the person was under the influence of any other intoxicating or impairing substance or with an illicit or recreational drug content in the person’s blood.

(f) (1) Notwithstanding any other provision to the contrary, a person charged with a driving under the influence offense who has been permitted to participate in the Court of Common Pleas Driving Under the Influence Treatment Program (Treatment Program), and is enrolled in a program of education or rehabilitation treatment under § 4177(f) or § 4177D of this title supervised by that Court, is eligible to have an IID license in accordance with this subsection.

(2) Notwithstanding paragraph (f)(1) of this section, a person may enter the Treatment Program without seeking an IID license.

(3) If a person chooses to obtain an IID license, or has any registered vehicles, the person must install an IID on each vehicle registered in that person’s name.

(4) Notwithstanding paragraph (f)(3) of this section, a person must install an IID on a vehicle owned by another person, with the permission of that person, if there are no vehicles registered in the person’s name.

(5) An IID must be immediately installed on eligible vehicles following the effective date of a person’s entry into the Treatment Program. The IID must remain installed on the vehicles for a minimum period of 12 months from the effective date of revocation or longer if the Court directs.

(6) A person in the Treatment Program is eligible to apply for an IID license under § 4177G(f) of this title if all of the following apply:

a. At least 30 days have elapsed since the effective date of the revocation.

b. All licenses have been surrendered to the Division of Motor Vehicles before issuance of the IID license.

c. The person is not in violation of any terms of the Treatment Program.

(g) Notwithstanding §§ 4177A(a) and 4177B(d) of this title, the Secretary shall reinstate the driver’s license or driving privileges of a person who has successfully completed and graduated from the Court of Common Pleas Driving Under the Influence Treatment Program and has done all of the following:

(1) Paid all fees under the schedule adopted by the Secretary.

(2) Paid all court fines, costs, and fees.

(3) Had at least 9 months elapse since 1 of the following occurred:

a. The IID was installed on a vehicle as required under this subsection and the IID license was issued.

b. The person’s driving privileges were revoked if the person did not seek an IID license.

61 Del. Laws, c. 474, §  263 Del. Laws, c. 430, §§  16, 1764 Del. Laws, c. 13, §§  17, 1870 Del. Laws, c. 186, §  172 Del. Laws, c. 92, §  473 Del. Laws, c. 352, §§  3-574 Del. Laws, c. 333, §  675 Del. Laws, c. 397, §§  5, 677 Del. Laws, c. 160, §§  3-678 Del. Laws, c. 167, §  2879 Del. Laws, c. 378, §  179 Del. Laws, c. 396, §  280 Del. Laws, c. 75, §  182 Del. Laws, c. 235, § 3

§ 4177D. Courses of instruction; rehabilitation programs.

The Secretary of the Department of Health and Social Services, through the Division of Substance Abuse and Mental Health, shall establish courses of instruction and programs of rehabilitation for persons whose drivers’ licenses have been revoked for driving a vehicle while under the influence of alcohol or any drug, or both. The Secretary of the Department of Health and Social Services shall administer such courses and programs and adopt rules and regulations for such courses and programs. The Secretary of the Department of Health and Social Services shall establish a schedule of fees for enrollment in such courses and programs. The schedule of fees may not exceed the maximum fine imposed for an offense under § 4177 of this title. A person’s successful completion of the Court of Common Pleas Driving Under the Influence Treatment Program is equivalent to a course of instruction or program of rehabilitation approved under this section.

61 Del. Laws, c. 474, §  263 Del. Laws, c. 430, §  1864 Del. Laws, c. 13, §  1974 Del. Laws, c. 110, §  8779 Del. Laws, c. 378, §  481 Del. Laws, c. 331, § 1

§ 4177E. Issuance of conditional license upon revocation of driver’s license [Repealed].
63 Del. Laws, c. 56, §  168 Del. Laws, c. 9, §  3370 Del. Laws, c. 553, §  377 Del. Laws, c. 60, §  14repealed by 79 Del. Laws, c. 396, § 2.

§ 4177F. Ignition Interlock Device Program [Repealed].
67 Del. Laws, c. 437, §  468 Del. Laws, c. 125, §§  2-570 Del. Laws, c. 553, §  172 Del. Laws, c. 92, §§  5-12, 1473 Del. Laws, c. 352, §§  6-874 Del. Laws, c. 110, §  8875 Del. Laws, c. 397, §§  7, 11repealed by 79 Del. Laws, c. 396 § 2.

§ 4177G. Ignition Interlock Device Program.

(a) Participation. — An offender must participate in the Ignition Interlock Device Program as provided under this section.

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

(1) “Ignition interlock device” (IID) means ignition equipment approved by the Director of the Division of Motor Vehicles under this section, designed to prevent a vehicle from being operated by a person who has consumed alcoholic beverages.

(2) “Lockout” means any time an offender attempts to use a vehicle equipped with an IID and any percentage of alcoholic beverages is measured by the IID.

(3) “Offender” means a person who has accepted a first offender election under § 4177B of this title or been convicted of violating § 4177 of this title.

(4) “Offense” means a first offenders election under § 4177B of this title or a conviction under § 4177 of this title.

(5) “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 vehicles operated by offenders.

(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) An offender who is eligible under subsection (f) of this section is subject to the ignition interlock requirements of this section and § 4177C of this title during the offender’s revocation period for an offense.

(2) An offender covered under paragraph (d)(1) of this section must have the IID installed on each vehicle the offender will, or does, operate during the period under § 4177C(d)(4) of this title before the Secretary is authorized to reinstate that person’s driver’s license or driving privileges, regardless of whether the vehicle is owned by the person.

(3) An offender’s driving record maintained by the Division of Motor Vehicles must 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 offender. The offender’s IID license, the registration of the vehicle on which the IID is installed, and the offender’s driving record maintained by the Division of Motor Vehicles must indicate that the offender may not operate any vehicle except when such vehicle is equipped with an IID.

(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 must be administered by the service provider and the person obtaining the IID shall make all payments under the plan to the service provider. The Division of Motor Vehicles shall further develop and implement an indigent plan for impoverished persons. Any person who makes application for an indigent plan must meet certain criteria and provide specific documentation to be approved by the Division of Motor Vehicles.

(f) IID license. — (1) The Secretary shall issue an IID license to an offender if the offender is eligible to, and does, apply for the license under § 4177C(a), (b), (c), or (f)(6) of this title and the offender meets all of the following:

a. At the time of the offense is a Delaware resident with a valid Delaware license.

b. Has an IID installed on each vehicle the offender will, or does, operate during the period under § 4177C(d)(4) of this title, regardless of whether the vehicle is owned by the person.

c. Does not have a driver’s license or driving privileges that are suspended, revoked, denied, or unavailable for any other violation of the law of any jurisdiction that would prohibit the issuance of the IID license, unless it is determined by the Secretary or the Secretary’s designee that the offender is eligible for reinstatement.

d. Does not have a driver’s license or driving privileges that are revoked under § 1009 of Title 10 or a similar law of another jurisdiction.

e. [Repealed.]

f. Own a vehicle in which the IID is to be installed or file the notarized approval of installation by the owner of a vehicle in which the IID is to be installed with the Division of Motor Vehicles.

g. Provide proof of insurance for a vehicle on which the IID is to be installed.

h. Meet any other eligibility criteria established by § 4177C of this title or by regulations of the Division of Motor Vehicles.

(2) The Secretary shall revoke an offender’s IID license if the offender does any of the following:

a. Fails to abide by the terms of the IID lease with the service provider as approved by the Division of Motor Vehicles.

b. Fails to comply with the Division of Motor Vehicles’ regulations concerning offender IID license restrictions.

c. Attempts, allows, or causes an attempt to bypass, tamper with, disable, or remove the IID or its wires in connection.

d. Attempts to operate a vehicle without possessing registration and an IID license that complies with this section.

e. Violates any section of this title relating to the use, possession, or consumption of alcohol or intoxicating or impairing substances.

f. Accumulates more than 5 points per year.

g. Fails to continue to meet all eligibility criteria identified in paragraph (f)(1) of this section.

h. Fails to provide proof to the Division of Motor Vehicles that an approved IID has been installed before being issued an IID license.

i. Fails or refuses to take random tests at such times and by such means as the Division of Motor Vehicles requires.

j. Fails to keep scheduled appointments with the Division of Motor Vehicles and the service provider.

k. Fails to report to the service provider on a monthly basis for service of the approved IID.

(3) Extension of program participation. — a. The Secretary or the Secretary’s designee shall extend the offender’s revocation period or participating requirement in the IID program upon a determination by the Secretary or the Secretary’s designee that the offender has failed to comply with the requirements of subsection (d) of this section for any of the following actions:

1. Each BAC reading of .05 or above.

2. Running retest violation.

3. Each missed monitoring appointment.

4. Start up violation; IE lock-out failure.

5. Tampering with or bypassing the interlock system.

6. Intentional circumvention of the interlock system or program requirements.

7. Any other noncompliance of program requirements specified in paragraph (f)(2) of this section as deemed by the Secretary or the Secretary’s designee.

b. The Secretary shall extend the offender’s revocation period or participating requirement in the IID program as follows:

1. For 2 months for any combination of 3 of the actions under paragraph (f)(3)a. of this section.

2. For 4 months for any combination of 5 of the actions under paragraph (f)(3)a. of this section.

3. For 6 months for any combination of 8 of the actions under paragraph (f)(3)a. of this section.

4. An additional 1 month for each action under paragraph (f)(3)a. of this section in excess of 8.

(4) Disqualification. — The Secretary or the Secretary’s designee, upon 10 days prior notice by certified mail, may disqualify an offender at any time upon a determination by the Secretary that the participant has failed to comply with any of the requirements of paragraph (f)(3)a.7. of this section. Upon disqualification, the IID must remain on the offender’s vehicle, or a vehicle on which the IID was installed, for the balance of the period required based on the offender’s revocation period and extensions under paragraph (f)(3)b. of this section, however, no driving authority will be granted during this remaining period. The offender is responsible for all fees for the IID during this period.

73 Del. Laws, c. 352, §  970 Del. Laws, c. 186, §  174 Del. Laws, c. 110, §  8975 Del. Laws, c. 397, §§  8, 9, 1377 Del. Laws, c. 183, §  179 Del. Laws, c. 396, §  281 Del. Laws, c. 204, §§ 2, 382 Del. Laws, c. 235, § 4

§ 4177H. Certification and approval of devices.

(a) The Division of Motor Vehicles shall adopt and publish rules setting forth the requirements for obtaining certification of an ignition interlock device. No ignition interlock device shall be certified unless it meets the requirements specified and published by the Division. Such requirements shall include provisions for setting a calibration range which complies with § 4177F of this title [repealed] and any other applicable law; and which shall include, but not be limited to, specifications that the device:

(1) Does not impede the safe operation of the vehicle;

(2) Has features that make circumvention difficult, but which do not interfere with the normal use of the vehicle; and

(3) Resists tampering, and shows evidence of tampering if tampering is attempted.

(b) The cost of certification shall be borne by each manufacturer of an ignition interlock device who desires to have such device certified in this State.

67 Del. Laws, c. 437, §  479 Del. Laws, c. 396, §  2

§ 4177I. Applicability of conforming statutes or ordinances.

Any references to § 4177, § 4177A, § 4177B, § 4177C, § 4177D, § 4177E [repealed], or § 4177L of this title shall include all conforming statutes of any other state or the District of Columbia, or local ordinances in conformity therewith.

63 Del. Laws, c. 430, §  1964 Del. Laws, c. 13, §  2070 Del. Laws, c. 36, §  979 Del. Laws, c. 396, §  2

§ 4177J. Drinking while driving prohibited.

(a) No person shall consume an alcoholic beverage while driving a motor vehicle upon the highways of this State. “Consume,” as used in this subsection, shall mean the ingestion of a substance containing alcohol while in the act of operating a motor vehicle in the presence of, or in the view of, a police officer.

(b) Whoever violates this section shall be fined for the first offense not less than $25 nor more than $200. For each subsequent like offense occurring within 1 year of the previous offense, the person shall be fined not less than $50 nor more than $400.

66 Del. Laws, c. 366, §  1

§ 4177K. Revocation of license for persons convicted of all drug offenses [Repealed].
67 Del. Laws, c. 148, §  167 Del. Laws, c. 429, §§  6-869 Del. Laws, c. 125, §§  3, 469 Del. Laws, c. 190, §  270 Del. Laws, c. 186, §  173 Del. Laws, c. 408, §  273 Del. Laws, c. 414, §  274 Del. Laws, c. 273, §  276 Del. Laws, c. 94, §§  1, 278 Del. Laws, c. 13, §  70repealed by 79 Del. Laws, c. 295 § 1, eff. July 9, 2014.

§ 4177L. Driving by persons under the age of 21 after consumption of alcohol; penalties.

(a) Whoever, being under the age of 21 years, drives, operates or has actual physical control of a vehicle, an off-highway vehicle or a moped while consuming or after having consumed alcoholic liquor shall have that person’s driver’s license and/or privileges revoked for a period of 2 months for the first offense and not less than 6 months nor more than 12 months for each subsequent offense. If the underage person does not have a driver’s license and/or privileges, the person shall be fined $200 for the first offense and not less than $400 nor more than $1,000 for each subsequent offense.

(b) In any proceeding under this section, evidence may be admitted of the amount of alcohol in the blood or breath of such underage person as determined by a specimen taken within 4 hours of the time when such person is alleged to have driven, operated or been in control of a vehicle after having consumed alcoholic liquor as shown by an analysis of that person’s breath, blood, urine, or saliva. Evidence that there was at the time of the test an alcohol concentration of .02 or more in that person’s blood or breath is per se evidence that the person had consumed alcoholic liquor. “Alcohol concentration of .02 or more in that person’s blood or breath” shall mean (1) an amount of alcohol in a sample of a person’s blood equivalent to .02 or more grams of alcohol per hundred milliliters of blood; or (2) an amount of alcohol in a sample of a person’s breath equivalent to .02 or more grams per 210 liters of breath. This provision shall not preclude a conviction based upon other admissible evidence.

(c) In addition to any other powers of arrest, any police officer is hereby authorized to arrest without a warrant any person who the officer has probable cause to believe has violated the provisions of this section, regardless of whether the alleged violation was committed in the presence of such officer.

(d) In addition to any penalty for a violation of subsection (a) of this section, the court shall order the person to complete a drug and alcohol evaluation and to complete a program of education or rehabilitation pursuant to § 4177D of this title.

70 Del. Laws, c. 36, §  170 Del. Laws, c. 186, §  171 Del. Laws, c. 450, §  178 Del. Laws, c. 167, §  29

§ 4177M. Operating a commercial motor vehicle with a prohibited blood alcohol concentration or while impaired by drugs.

(a) No person shall drive, operate, or have actual physical control of a commercial motor vehicle with an alcohol concentration of .04 or more in that person’s blood or breath or having used a controlled substance or any drug which impairs driving ability. Any person who violates this section shall be guilty of an unclassified misdemeanor, and shall be subject to the provisions of Chapter 26 of this title. Prosecution under this section does not preclude prosecution under any other section of the Code. “Alcohol concentration of .04 or more” shall mean:

(1) An amount of alcohol in a sample of a person’s blood equivalent to .04 or more grams of alcohol per 100 milliliters of blood; or,

(2) An amount of alcohol in a sample of a person’s breath equivalent to .04 or more grams per 210 liters of breath.

(b) In addition to any penalty for a violation of subsection (a) of this section, the court shall order the person to complete a drug and alcohol evaluation and to complete a program of education or rehabilitation pursuant to § 4177D of this title.

70 Del. Laws, c. 134, §  570 Del. Laws, c. 186, §  177 Del. Laws, c. 60, §  1578 Del. Laws, c. 167, §  30