IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

STATE OF DELA\X/'ARE,

V.

Case NO. 1802012685
PAIGE ]. BLAKE,

\_/\/\_/\/\_/\/\/

Defendant.
Submitted: Match 8, 2019
Decided: April 26, 2019
Stephen McCloskey, Esquire ]onathan Layton, Esquire
Deputy Attorney General Gonser and Gonser P.A.
820 N. French Stteet, 7th Floor 14 Ashley Place
\Wilmington, DE 19801 Wi]mington, DE 19804
Az‘z‘om@/for !he Smte ofDe/au/are Az‘fom@)for D(y@ndanf

MEMORANDUM OPINION AND ORDER ON DEFENDANT’S MOTION FOR
SENTENCE AS A FIRST DUI OFFENSE

sMALLs, c.J.

This matter is before the Court on Defendant’s Motion To Be Sentenced As A First
Offender Under the Delaware Motor Vehicle Statute 21 De/. C. § 4177(d) (1). This Motion is
opposed by the State on the basis that Defendant Was convicted in the State of Maryland on
March 18, 2015, for an offense of driving While under the influence of alcohol. Defendant
Was sentenced under the Maryland Probation Before Judgment statute. Therefore, the State
argues that this the present conviction under DelaWare’s driving While under the influence of
alcohol statute constitutes a second offense under 21 De/. C. § 4177(d)(2).

FACTS & PROCEDURAL HISTORY
On May 18, 2015, Defendant pled guilty in the District Court of Maryland,
Worchester County, to driving While under the influence of alcohol per se (the “l\/laryland
DUI”), and entered a probation before judgment program. Defendant successfully completed
the program on September 25, 2015.

On February 20, 2018, Defendant Was charged in this Court With driving under the
influence of alcohol and other related offenses1 A bench trial vvas held on October 8, 2018,
at the conclusion of Which Defendant Was found guilty of driving under the influence of
alcohol (the “DelaWare DUI”).

On January 11, 2019, Defendant Was scheduled to appear before this Court for
sentencing on the Delaware DUI. However, at the request of the parties, sentencing Was

continued and the parties Were afforded opportunity to submit briefing on the issue of Whether

 

Defendant was also charged with: leaving the scene of property collision accident, in violation of 21 De/.
C. § 4201(a); reckless driving, in violation of 21 De/. C. § 4175(a); failure to have insurance identification in
possession, in violation of 21 De/. C. § 2118(p)(1); failed to remain Within a single lane, in violation of 21
De/. C. § 4122(1>; and, failure to report a collision involving alcohol or drugs, in violation of 21 De/. C. §
4203(a) (3). Defendant Was found not guilty of these companion charges

2

the Maryland DUI constitutes a first offense for purposes of sentencing Briefing Was
completed on March 8, 2019, and the Court took the matter under advisement.
PARTIES’ CONTENTIONS

It is the State’s position that the Maryland DUI constitutes a first offense because it
falls Within the definition of a “prior offense” as set forth in DelaWare’s driving under the
influence statute. As such, the State avers, the conviction on October 8, 2018, constitutes a
second offense and Defendant must be sentenced as a second-time offender. Defendant, on
the other hand, argues that, under DelaWare’s probation before judgment statute, the Maryland
DUI does not constitute a “previous conviction.” Thus, Defendant contends, the Delaware
conviction is a first offense under Delavvare law and Defendant must be sentenced as a first-
time offender.

DISCUSSION

The provisions of the Motor Vehicle Code do not provide discretion in the imposition
of sentences for DUI offenses.2 Rather, the statutory scheme set forth in 11 Del. C. § 4177
(the “DUI Statute”), imposes strict, mandatory penalties for offenses, escalating in severity for
repeat offenders3 This structure provides that a first offense requires a penalty of a fine not
less than 3500 and/ or imprisonment up to a period of 12 months.4 Thereafter, for a second
offense Which occurs Within 10 years of the first offense, the DUI Statute requires the

imposition of a minimum fine of $750 and at least 60 days imprisonment.5

 

2 See State a Laboy, 117 A. 3d 562, 565 (Del. 2015) (“ The DUI statute provides specific, mandatory penalties
for DUI offenders”).

3 See z'd.

4 21 De/. C. §4177(d)(1).

5 21 De/. C. §4177(d)(2).

Section 4177B(e) (1) of the DUI Statute sets forth specific categories of offenses Which
constitute a “prior conviction,” including
(a) A conviction or other adjudication of guilt or delinquency pursuant to §

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;

(d) A conditional adjudication of guilt, any court order, or j any 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, local jurisdiction,
any federal or military reservation or the District of Columbia.6
Defendant’s argument in favor of sentencing as a first-time offender relates only to
subsection (a) of § 4177B(e)(1). Defendant contends that under Delaware’s probation before
judgment statute, 11 De/. C. § 4218 (or, the “PB] Statute”), the Maryland DUI Would not
constitute a “previous conviction,” as the successful completion of a PB] program results in a
discharge “Without judgment of conviction,” at Which time the charges are eligible for
expungement Therefore, Defendant eXtrapolates, had the Maryland DUI played out in
Delavvare, there Would be no record of that charge at this stage; thus, the later-incurred
Delavvare DUI Would constitute a first offense.
Defendant’s position is premised on the supposition that Maryland’s probation before
judgment statute can be transposed into Delaware’s PB] Statute. The Court finds this
argument to be unpersuasive, as Defendant fails to take into consideration the provisions of

Delaware’s PB] Statute Which exclude first-time DUI offenders from the PBJ program.

Unlike DelaWare, Maryland’s probation before judgment statute encompasses first-time

 

6 21 Del. C. § 417713<€)(1).

offenders charged With driving under the influence of alcohol.7 Conversely, under DelaWare
laW, first-time offenders charged With driving under the influence of alcohol are excluded from
DelaWare’s PB] program, and instead have the option of participating in the first offenders
program.8 Specifically, section (b)($) of Delaware’s PB] Statute provides, in relevant part, that
“this section may not be substituted for: Section 4177B of Title 21. First Offenders;
election in lieu of trial.”9 In conjunction, subsection (c) (2) specifies that, for purposes of the
PBJ Statute, “the following shall also constitute a previous conviction: any adjudication,
resolution, disposition or program set forth in § 4177B(e) (1) of Title 21.”10

When these provisions are read together, under Delaware laW, Defendant Would not
have been eligible for a probation before judgment following a Driving Under the Influence
conviction. Instead, the program she completed in Maryland Would be the functional
equivalent of DelaWare’s first offender program in lieu of trial.11

Additionally, Defendant argument overlooks subsection (d) of § 4177B(e)(1), Which
classifies “first offender treatment or any other diversionary program under this section or a
similar statute of any state” as a prior conviction for sentencing purposes.12 This Court has
held, on multiple occasions, that participation in Maryland’s probation before judgment
program constitutes a first offense under § 4177B(e) (1)(d). In Daw'i‘ a Sfafe, the Superior Court
upheld this Court’s decision to sentence the defendant as a second-time offender Where the

defendant “acknowledged serving 18 months probation before judgment for Driving While

 

7 533 Md. Code (2001, 2008 Repl. Vol.), § 6-220(b) of the Criminal Procedure Article.
8 See 21 De/. C. § 4177B.

9 11 De!. C. § 4218(b)(3).

111 11 Del. C. § 4218(c)(2)(c).

11 See 21 De/. C. § 4177B.

12 21 Del. C. §4177B(e)(1)(d).

lmpaired by Alcohol in Maryland” after an intoxilyzer reading of .23.13 Similarly, in State a
jolm\'ou, this Court held that “[the defendant] acknowledge[d] completing PB] in Maryland for
Driving or Attempting to Drive a Vehicle While Impaired by Alcohol . . . this Court finds that
21 Del. C. § 4177B(e)(1)(d) is applicable Accordingly, the Maryland Offense is considered a
prior offense for purposes of these proceedings.’714

The present circumstances fall squarely Within 21 De/. C. § 4177B(e)(1)(d). Defendant
entered a guilty plea on the Maryland DUI on May 18, 2015, and participated in a probation
before judgment program. This Court finds that 21 De/ C. § 4177B(e)(1)(d) is applicable, and
the Maryland DUI is considered a prior offense for sentencing purposes

ACCORDINGLY, Defendant’s motion to be sentenced as a first offense is Denied.

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j exJ/V bmalls
hief]udge

so oRDERED this 26th day Oprrii, 2019

 

13 2014 WL 1312742, ar *2 (Dei. super Feb. 28, 2014).
14 2014 WL 1677971, at *3 (Del. com Pi. Aprii 24, 2014).

6

