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

STATE OF DELAWARE )
)
)
V, ) Cr.A. No.: 1304024347
)
)
ALAIN M. KIMBI, )
)
Defendant. )
I )
Submitted: July 31, 2015
Decided: August 21, 2015
I Christopher Marques, Esquire Kester Crosse, Esquire
Haguty whammy {Emeral Ofﬁce of the Public Defender
|  N. "'{Q‘fﬁﬁﬂh S'tréﬁih; 7th Floor 900 N. King Street
I Wilmington, DE 19801 Wilmington, DE 19801
Attorney for the State of Delaware Attorney for Defendant

DECISION AFTER TRIAL

RENNIE, J.

 

INTRODUCTION

On April 27, 2013, Alain M. Kimbi (“Defendant”) was arrested and charged with Driving
While Suspended or Revoked, in violation of 21 Del. C. § 2756(a).1 At trial on June 1, 2015, the
Court heard testimony from Detective Sean Raftery (“Detective Raftery”) and Defendant. At the
conclusion of trial, the Court reserved its decision, and ordered supplemental brieﬁng. This is
the Court’s ﬁnal decision aﬁer trial.

FACTUAL BACKGROUND

The facts in this matter are undisputed. On April 27, 2013, Detective Raftery was
assigned to patrol the surrounding neighborhoods along Pulaski Highway. At the intersection of
Wilton Boulevard and Pulaski Highway, Detective Raftery observed Defendant driving a maroon
Lincoln Towncar. While Defendant was turning left from Wilton Bouevard onto E. Pulaski
Highway, he failed to signal. Due to the amount of trafﬁc that morning, Detective Raftery
followed Defendant until he felt that it was safe to stop the vehicle. Eventually, Detective
Raftery stopped Defendant and asked for Defendant’s identiﬁcation. Defendant stated that he
did not have any form of identiﬁcation in his possession, so Detective Raftery asked for him to
provide his name, address, phone number and date of birth. Detective Raftery veriﬁed
Defendant’s name and information in DELJ IS and CEJIS. CEJ IS showed that Defendant was
issued a temporary driver’s license number, No. 1740985, and that he was currently suspended

from driving.2 Defendant testiﬁed that he had previously applied for a license but was denied by

1 Defendant was also charged with Failure to Report Change of Address, in violation of 21 Del. C. § 315, and
Improper Stop or Decrease in Speed Without Giving Proper Signal, in violation of 21 Del. C. 9‘ 4155(0). However,
on June 1, 2015, prior to trial, the State entered a nollo prosequi on both charges, and proceeded to trial only on the
charge of Driving While Suspended or Revoked.

2 See State’s Exh. 1. Defendant was issued this temporary license number for record keeping purposes, which
subsequently created a driving record for Defendant.

 

’33

the Division of Motor Vehicles (“DMV”) because of “previous cases, that he had to resolve

prior to obtaining a driver’s license.
DISCUSSION

The Court is called upon to determine whether an individual who had never been issued a
driver’s license can be found to have violated 21 Del. C. § 2756(a).4 Under § 2756(a), “[a]ny
person whose driver's license or driving privileges have been suspended or revoked and who
drives any motor vehicle upon the highways of this State during the period of suspension or
revocation shall . . . be ﬁned . . . and be imprisoned.”5 Notably, § 2756(a) provides suspension
of driving privileges. Title 21 does not deﬁne ‘privilege,’ so the Court must look to its ordinary

6 Black’s Law Dictionary deﬁnes privilege as “[a] special legal right . . .

and usual meanings.
granted to a person or class of persons” and further provides that “[a] privilege grants someone
the legal freedom to do or not to do a given act.”7 The fact that § 2756 uses disjunctive language
— “driver’s license or driving privileges” — suggests that a driver’s license and a driving privilege
are not one in the same.

The State contends that under § 2756, a person may have his or her driving privilege
suspended independent of having a driver’s license suspended or revoked because obtaining a
driver’s license is merely a way to exercise the privilege to drive. In support of its argument, the

State points to State v. Bowersox, which concerned the application of 21 Del. C. § 2809. Section

2809 addresses the restoration of driving privileges for habitual offenders, and establishes three

5‘.

 

3 Defendant testiﬁed that these “previous cases” consisted of noise complaints.
4 At trial, Defendant also challenged Detective Raftery’s initial stop, arguing that the testimony elicited at trial
suggested that the stop was pretextual. After analyzing the record before the Court, there is insufﬁcient evidence to

support that conclusion.

5 21 Del. C. §2756(a).

6 Virtual Bus. Enterprises, LLC v. Maryland Cas. C0., 2010 WL 1427409, at *5 (Del. Super. Apr. 9, 2010) (citing
Rhone-Poulenc Basic Chems. Co. v. American Motorists Ins. Co, 616 A.2d 1192, 1195 (Del.1992).

7 Black's Law Dictionary (10th ed. 2014).

 

 

requirements that must be met in order for a habitual offender to be issued a driver’s license.8 A
habitual offender is prohibited from being issued a driver’s license: (1) during the applicable
habitual offender statutory period; (2) until the defendant meets all ﬁnancial responsibility
requirements and; (3) until the court restores the privilege to operate a motor vehicle to the
defendant.9 With respect to this third requirement, § 2809 further provides that the Court may
use its discretion in restoring a habitual offender’s driving privileges based on certain terms and
conditions that the Court may have prescribed.10 Therefore, under § 2809, in order for a habitual
offender to obtain a license, he must ﬁrst have his driving privileges restored, which further
evidences that there is a distinction between a “driving privilege” and a “driver’s license” as
referred to in § 2756.
The State further supports its argument by looking to the Uniform Commercial Drivers

License Act, particularly 21 Del. C. § 2615(d), which provides:

Whenever an unlicensed driver from this State is convicted of any

violation as provided in § 2612 of this title, the Division will

establish a driving record in the person's name and, if appropriate,

withdraw the person’s driving privileges by license suspension,

revocation, disqualiﬁcation, cancellation or denial when authorized

by statute or Division policy. Those persons whose driving

privileges are withdrawn under this section will be reinstated when

they have completed the reinstatement procedures speciﬁed in
statute or Division policy.11

Therefore, under § 2615(d), an unlicensed driver can still have a driving record and have driving
privileges suspended without having a license, which again demonstrates that there is a

distinction between a “driving privilege” and a “driver’s license” as referred to in § 2756,

8 21 Del. C. §2809

9 Id.

1° Id. at § 2809(0).

” 21 Del. C. §2615(d) (emphasis added),

Defendant suggests that the Court should look to the Superior Court’s decision in State v.
Glenn,12 however, the Court ﬁnds that State v. Dennis,13 which was issued by the Delaware
Supreme Court subsequent to Glenn, is more instructive on the issue before the Court. In
Dennis, the State sought to amend the Information, which previously charged the defendant with
driving while his license had been revoked, to the charge of driving while his driving privileges
had been revoked.14 When discussing § 2756, the Court stated that “[t]he object of this statute is
to prohibit the operation of a car on our highways by one who has no driving privileges.”15 The

Court further provided that whether a “[driver’s] license or merely his driving privileges had

9916

been revoked [was] of little moment. Instead, the Court found that “the important

consideration is whether [the driver] had or did not have the privilege of driving on our roads.”17

Thus, even though Defendant never possessed a driver’s license, the key determination here is
whether Defendant’s driving privileges were revoked when he was charged under § 2756.

In order to establish that a defendant was Driving while Suspended, in violation of 21
Del. C. § 2756, the State must prove: (1) that the defendant’s driving license or driving privileges
were suspended or revoked; (2) that the revocation or suspension was legal; and (3) that during
the period of such revocation or suspension, the defendant operated a motor vehicle on the public

highway in Delaware. 18

:.=,_=_—

12 1973 WL 157797 (Del. Super. Mar. 28, 1973).

‘3 206 A.2d 729 (Del. 1973).

‘4 State v. Dennis, 306 A.2d 729, 730 (Del. 1973).

‘5 Id. at 731.

‘6 Id.

17 Id. This rationale correlates with 21 Del. C. § 2758(b), which provides that “[a]ny person not licensed as a driver
who is convicted of driving a motor vehicle during a license denial period shall be punished as provided in § 2756 of
this Title.”

18 21 Del. C. § 2756(a); McMonigle v. State, 2009 WL 27311, at *2 (Del. Super. Jan. 6, 2009); Fuentes v. State,
2002 WL 32071656, at *2 (Del. Super. Dec. 30, 2002); State v. Moore, 269 A.2d 242 (Del. Super. 1970).

 

In this case, Defendant was driving without a license, during a time in which the DMV
had denied his application for a driver’s license. Defendant had been previously denied a
driver’s license, and therefore, his ability to obtain a driver’s license and concomitant privilege to
drive had been revoked and/or suspended until he resolved other pending legal matters. Thus, it
is clear that Defendant violated § 2756(a) when he drove a vehicle while his driving privileges
had been suspended.

CONCLUSION

The State has met its burden of proving beyond a reasonable doubt that Defendant was
driving while his driving privileges had been revoked and/or suspended in violation of 21 Del. C.
§ 2756. Accordingly, the Court ﬁnds Defendant Alain M. Kimbi GUILTY of driving a vehicle
while his driving privileges were suspended and/0r revoked. This Judicial Ofﬁcer shall retain

jurisdiction of this case and will schedule it forthwith for sentencing.

IT IS SO ORDERED.

   

Sheldon
Judge

