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									                        LEGAL MEMORANDUM 96-221


TO:          ALL JUSTICES OF THE PEACE

FROM:        PATRICIA W. GRIFFIN
             CHIEF MAGISTRATE

DATE:        SEPTEMBER 10, 1996

RE:          DUI PRIOR CONVICTIONS

____________________________________________________________________


       Please find attached Court of Common Pleas’decision in State v. Toomey, Del.
C.P., Cr. A. No. S96-04-0100, DiSabatino, C.J. (September 4, 1996). In Toomey, the
Court of Common Pleas reviewed the definition of prior DUI convictions under 21
Del. C. § 4177B(e), which states that participation in a course of instruction or
program of rehabilitation pursuant to § 4175(b), § 4177, § 4177B, or §4177D of Title
21 within the five years immediately preceding the date of the present offense is
considered a prior conviction “regardless of the existence or validity of any
accompanying attendant plea or adjudication of guilt.”

       The facts in Toomey are as follows: Defendant was previously arrested for a
DUI in 1991 and elected diversion into the First Offender Program, pursuant to 21 Del.
C. §4177B, in a Justice of the Peace Court on June 8, 1991. The Defendant was
administratively discharged from the Delaware Drinking Drivers’ Program pursuant to
a letter from the program’s office manager, dated February 20, 1992. The letter
administratively discharging the Defendant recited Defendant’s “decision to not finish
treatment at this particular time” after the Defendant had attended a single treatment
session on December 11, 1991. No further court action was taken against the
Defendant based upon the previous DUI offense. The Defendant was subsequently
arrested on December 16, 1995 for Driving Under the Influence of Alcohol and
convicted after trial in the Court of Common Pleas on March 20, 1996.
       The Defendant contended that he should be sentenced as a first offender because
his attendance at a single treatment session does not constitute “participation” which
would make the FOP election a prior conviction under the current DUI law, as
amended in 1995. The State argued that the attendance at a single treatment session
should be regarded as “participation”, and the Defendant sentenced to a second DUI
offense.

       The Court of Common Pleas reviewed the proceedings set forth in the DUI
statute on processing a First Offender plea. It stated that, if the Defendant fails to
participate in a course of instruction or program of rehabilitation, the probation officer
should notify the Court and that, upon receiving notice that the Defendant has not
participated in a treatment program, the Defendant should be brought before the Court
pursuant to § 4177B(b). Upon a determination by the Court that the terms of probation
have been violated, the Court should enter an adjudication of guilt and sentence the
Defendant, even in the Defendant’s absence. The Court concluded:

      The statutory scheme reflects a legislative intent that defendants who have
      elected diversion into the First Offenders Program should be required either (a)
      to complete the treatment program or (b) be returned to court to have the
      conviction entered and a sentence imposed. It follows that the term
      “participation” was intended by the Delaware Legislature to mean “completion”
      of the DUI treatment program.

Mem. Op. at 3. In discussing the statutory scheme for the DUI FOP, the Court stated
that the Courts must rely on others to notify them when a Defendant fails to comply
with the terms and conditions of probation, including the completion of a course of
instruction or program of rehabilitation. It also stated that it is the Court’s
responsibility to enforce the terms of the probation and to enter conviction upon a
violation of the probation. Finally, the Court concluded that since the sentencing court
took no action on the Defendant’s First Offender Plea when the Defendant failed to
participate as required by the Court’s order and the DUI statute, the Defendant must be
sentenced as a first offender. It further stated:

      Clearly, the defendant’s violation has worked to his advantage, saving
      him from the mandatory minimum jail sentence he would have received
      as a second offender. No attempt is made herein to determine whether
       the fault lies with the sentencing court or elsewhere. All participants, the
       sentencing court, the probation staff, the Department of Public Safety, the
       Division of Motor Vehicles, the treatment providers (and perhaps even
       the Department of Justice), need to focus on what happened here and
       increase vigilance to avoid a repetition of this problem in the future.1

       This case brings two important points to our attention:

       1.     In sentencing a person charged with a DUI offense who has previously
elected diversion into the DUI First Offender Program, the Judge must determine
whether the person has completed participation in the rehabilitation program within the
five years immediately preceding the date of the present offense. If the offender has
completed the program within the five years immediately preceding the date of the
present offense, they are appropriately sentenced as a second offender. According to
the Toomey decision, if a person charged with a DUI offense was previously arrested
for DUI and elected diversion into the First Offender Program but did not complete
participation in the course of instruction or program of rehabilitation within the five
years preceding the date of the present offense, they should be sentenced as a first
offender. [I note, however, that the Court may determine that the person is not eligible
for the First Offender Program. § 4177B of Title 21 of the Delaware Code states that a
first offender who complies with certain requirements may qualify for the first
offense election at the time of arraignment. The Court, without entering a judgment of
guilty and with the consent of the accused, may defer further proceedings and 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.”
Since the decision to allow someone in a First Offender Program is discretionary, the
Court can elect not to place someone in the First Offender Program who has evidenced
by their previous actions (through failure to complete a rehabilitation program in the
past) that they are not likely to comply with the terms and conditions of probation.]

      2.      In light of the Toomey decision, it is critical that the Court follow up on
Defendants who elect diversion into the First Offender Program under 21 Del. C. §
4177B. As soon as the Court is advised that the Defendant has not completed a
rehabilitation program, or that the Defendant otherwise fails to comply with the
conditions of the First Offender Program, the offender should be brought before the

       1
        The Court also recommended that the problem can be cured by amending the legislation to
designate the Defendants election to First Offender Program diversion as constituting a previous
DUI conviction, rather than participation.
Court for a determination by the Court whether the terms of probation have been
violated; if so, the Court shall enter an adjudication of guilty and proceed pursuant to §
4177. If a person fails to appear before the Court, the Court may still enter an
adjudication against the person so long as they have determined that the terms of
probation have been violated.

      I will keep you advised concerning any further decisions on this issue. If you
have any questions on this matter, let me know or bring them up at our September 16,
1996 educational program.

PWG/crm

PWG

cc:   Honorable E. Norman Veasey
      Honorable Randy J. Holland
      Honorable Henry duPont Ridgely
      Honorable Arthur F. DiSabatino
      Honorable Vincent J. Poppiti
      Honorable Alfred R. Fraczkowski
      Honorable Alicia Howard
      Keith R. Brady, D.A.G.
      Alderman’s Courts
      Thomas W. Nagle
      Anna A. Lewis
      H. John Betts
      All Justice of the Peace Courts
      Law Libraries: New Castle County, Kent County, Sussex County,
       Widener University School of Law
      Digilaw, Inc.

								
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