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 Defendants 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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