21 DE Code § 4177B. (2021)
2021 Delaware Code|Title 21 - Motor Vehicles|Chapter 41. Rules of the Road|Subchapter IX. Reckless Driving; Driving While Intoxicated|§ 4177B. First offenders; election in lieu of trial.

§ 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, §  2;  63 Del. Laws, c. 430, §  15;  64 Del. Laws, c. 13, §  16;  69 Del. Laws, c. 134, §  1;  70 Del. Laws, c. 26, §§  9, 10;  70 Del. Laws, c. 34, §§  2, 3;  70 Del. Laws, c. 62, §§  9, 10;  70 Del. Laws, c. 186, §  1;  71 Del. Laws, c. 209, §§  3-5;  72 Del. Laws, c. 92, §§  1, 2;  74 Del. Laws, c. 182, §  4;  74 Del. Laws, c. 333, §  3;  74 Del. Laws, c. 345, §  8;  75 Del. Laws, c. 397, §  4;  77 Del. Laws, c. 160, §§  1, 2;  77 Del. Laws, c. 162, §  7;  78 Del. Laws, c. 167, §§  21-27;  79 Del. Laws, c. 396, §  2;  82 Del. Laws, c. 235, § 2;