IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUN'I`Y

STATE OF DELAWARE,

v. C.A. No.: 1208016098

JANINE V. JOHNSON,

\-_/\.J§/\./\_/'*\-,/\\-_/\~.J\J

Defendant.

Submitted: March 25, 2014

Decided: April 24, 2014
Timothy Maguire, Esquire Jonathan Layton, Esquire
Deputy Attorney General 1823 West 16th Street
320 N. Fren¢h srreec, 3“‘ Fl@or wilmingmn, DE 1980s
Wi}mington, DE 19801 Attorney for Dejéndant

Attorney for the Srate of Delaware

()RDER ON DEFENDANT’S MOTION INLIMINE

RENNIE, J.

On August 19, 2012, Defendant Janine V. Johnson ("Johnson") was arrested and charged
with: (l) driving under the influence of alcohol in violation of 21 Del. C. § 4177(a) (the "DUI
Offense"); (2) improper lane change in violation of 21 Del. C. § 4122; (3) operating an
unregistered motor vehicle in violation of 21 Del. C. § 2101, and; (4) failure to have insurance
identification in possession in violation of 21 Del. C. § 2118.

On November 13, 2013, Johnson filed the present motion in limine, seeking a pre-trial
ruling on the issue of whether the pending DUI Offense constitutes a first or second offense for
Johnson in light of her driving offenses in Maryland.

A hearing on Johnson’s motion was held on .Tanuary 30, 2014. At the conclusion of the
hearing, the Court reserved decision and ordered supplemental briefing from the parties.l This is
the Court’s final decision after consideration of the oral argument presented and supplemental
briefing submitted

FACTS

Johnson concedes that on March 4, 2010, she was arrested in Maryland and charged with:
(1) Driving or Attempting to Drive a Vehicle While Under the influence of Alcohol, in violation
of Md. Code Ann., Transp. § 21-902(;1)(1) (2011); (2) Driving or Attempting to Drive a Vehicle
While Impaired by Alcohol, in violation of Ma'. Code Ann., Transp. § 21-902(b)(l) (2011), and;
(3) Unsafe Lane Changing, in violation of Ma’. Code Ann., Transp. § 21-309(b).

On May 27, 2010, Johnson pled guilty in Maryland Circuit Court to Driving or

Attempting to Drive a Vehicle While lmpaired by Alcohol (the "Maryland Offense").z Johnson

l On February 24, 2014, the Court ordered additional briefing to address, in part, the issue of
whether the pending motion implicates an actual case or controversy, or if it is merely an
advisory opinion The Court has determined that this issue is appropriate for a motion in limine.
2 A nolle prosequi was entered with respect to the companion charges of Driving or Attempting
to Drive a Vehicle While Under the Influence ofA1coho1 and Unsafe Lane Changing.

2

had no prior alcohol-related incidents and was eligible to enroll in the Maryland probation before
judgment ("PBJ") program. The Maryland Circuit Court granted PBJ and imposed a fine of
$150.00 plus costs. According to Johnson, she successfully completed the PBJ program and was
discharged?

On August 19, 2012, Johnson was charged in Delaware with the DUI Offense, improper
lane change, operating an unregistered motor vehicle, and failure to have insurance
identification. During plea negotiations, the State extended an offer to Johnson which involved a
sentencing recommendation for the minimum mandatory sentence applicable to a defendant
facing a second DUI conviction within five years of a first DUI conviction. Johnson, however,
maintained that the present DUI Offense is properly classified as her first offense, as she was not
"convicted" in Maryland.

On November 13, 2013, Johnson filed the present motion in lz'mz`ne. The sole issue before
the Court is whether the Maryland Offense constitutes a "prior offense” under 21 Del. C.
4177B(e).

Discussion

Under Delaware’s DUI statute, repeat offenders are subject to heightened penalties.‘l The
designation of "prior offenses" is set forth in § 4l77B(e), which provides that a person convicted
of DUI is considered a repeat offender for sentencing purposes if convicted "pursuant to . . . §
4177 of this title, or a similar statute of any state" within five years antecedent to the present
off`ense.$

Pursuant to § 417713(€)(1), prior offenses include:

3 The record does indicate that the matter is closed.
4 21 Del. C. § 4177(d); Stewart v. State, 930 A.2d 923,926 (Del. 2007).
5 21 nat c. § 41773(¢).

a. A conviction or other adjudication of guilt or delinquency pursuant to §
4l75(b) or § 4177 of this title, or a similar statute of any state or local jurisdicti0n,
any federal or military reservation or the District of Columbia;

c. Participation in a course of instruction or program of rehabilitation or education
pursuant to § 4l75(b) of this title, § 4177 of this title or this section, or a similar
statute of any state, local jurisdiction, any federal or military reservation or the
District of Columbia, regardless of the existence or validity of any accompanying
attendant plea or adjudication of guilt;

d. A conditional adjudication of guilt, any court order, or any agreement
sanctioned by a court requiring or pennitting a person to apply for, enroll in or
otherwise accept first offender treatment or any other diversionary program under

this section or a similar statute of any state, local jurisdiction, any federal or

military reservation or the District of Columbia.

Johnson presents three arguments in support of her position that the Maryland Offense is
not a prior offense under § 4l77B(e)(l). First, Johnson argues that under Maryland law the
Maryland Offense did not result in a conviction or other adjudication of guilt; thus, it was not a
prior offense under § 4177B(e)(1)(a).6 Second, Johnson argues that the record does not reflect
that probation was actually ordered or that she was ordered to participate in a course of
instruction or program of rehabilitation Therefore, Johnson contends, the Maryland Offense is
not a first offense under § 4177B(e)(1)(c).7 Finally, Johnson argues that Maryland’s DUI statute
is not similar to Delaware’s DUI statute, rendering § 4l77B(e)(l)(d) inapplicable.g

The Court need not address Johnson’s first two arguments as the present circumstances

fall squarely within the language of 4177B(e)(1)(d).

6 Defendant’s Supplemental Brief at 11 33~34.

_ 7 Defs.Supp.Br. at 11 35. 'l`he Court notes that in Defendant’s Supplemental Brief, Johnson

asserts that probation was in fact completed. Defs.Supp.Br. at 11 38.
8 Defs.Supp.Br. at 11 36.

Johnson argues that Maryland’s DUI statute differs from the law in Delawarc in that the
tenn "impaired" is absent from Delaware’s DUI statute. Thus, Johnson concludes, the DUI
statute in Maryland is not "similar" to its Delawarc counterpart, and the Maryland Offense
should be excluded from consideration as a prior offense under § 4l77B(e)(1)(d).9

"ln comparing a statute for the purpose of determining whether it is pursuant to a similar
statute, it is the prohibited behavior that must be similar."lo Delawarc courts have defined
"similar” as "nearly corresponding; resembling in many respects; having a general likeness,
although allowing for some degree of difference."l'

While there is some degree of difference in the two statutes, the conduct that the statutes
seek to prohibit is identical. Delaware’s DUI statute defines "while under the influence" as when
a "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."'z Maryland courts have interpreted
driving "while impaired" as "a state less than intoxication where consumption of alcohol has

affected one's nonnal coordination."u

In both cases, the prohibited behavior is a person
operating a vehicle in a manner negatively deviant from their norm attributable to the
consumption of alcohol Accordingly, the Court finds that Maryland’s DUI statute and

Delaware’s DUI statute are similar for purposes of § 4177B(e)(1)(d).

9 Johnson also argues that the statutes differ in that the word "attempt" is not included in the
Delawarc statute The Court finds this argument to be unpersuasive.

‘° stare v. R@ga»s, 2001 WL 1393583, at *1 (Del. super. oct 9, 2001).

‘* 1a at *2.

‘2 21 net C. §4177(@)(5).

'3 swan v_ s¢are, 41 Md. App. 123, 128 (Md. ct spec. App. ran 11, 1979).

5

 

The Delawarc Superior Court’s ruling in Davis v. State]"' is instructive on the issue of the
similarity between the Delawarc and Maryland DUI statutes. in Davis, the Delawarc Superior
Court held that the defendant was properly sentenced as a second offender based on defendant’s
prior PBJ in Maryland for Driving While impaired by Alcohol.l§ The court held “[d]efendant
acknowledged serving 18 months probation before judgment for Driving While impaired by
Alcohol in Maryland, after blowing a .23. The trial judge found that satisfied 21 De!. C. §
41 77(e)(l)(d) and, accordingly, sentenced Defendant properly as a second offender."":`

Likewise, Johnson acknowledges completing PBJ in Maryland for Driving or Attempting
to Drive a Vehicle While impaired by Alcohol. As in Davis, this Court finds that 21 Del. C. §
4l77B(e)(l)(d) is applicable. Accordingly, the Maryland Offense is considered a prior offense
for purposes of these proceedings.

CONCLUSION

For the foregoing reasons, Defendant’s motion in limine is DENIED. The matter shall be

set for trial before this judicial officer.

  
  

IT IS SO ORDERED THIS 24th DAY OF APRIL, 2014.

   

The Honora e e on K.Rennie,

Judge /

 

14 2014 WL 1312742 (Del. Super. Feb. 28, 2014).
15 Ici. at *2.
16 Id. at *2.

