Delaware General Assembly

Signed 5/18/99

The General Assembly has ended, the current status is the final status.

1/26/99

Spence

Sen. Henry, Winslow

AN ACT TO AMEND CHAPTER 41, TITLE 21 OF THE DELAWARE CODE RELATING TO DRIVING UNDER THE INFLUENCE OF ALCOHOL AND/OR DRUGS.

Following a view of some courts addressing per se Driving Under the Influence (DUI) statutes, the Delaware Supreme Court recently held that certain aspects of Delaware's DUI statutes were constitutionally deficient. State v. Baker, Del. Supr., No. 49, 1998, Walsh, J. (Del. 1, 1998) (Opinion). This Act seeks to remedy any perceived constitutional infirmity by ensuring that what was implicit in 21 Del. C §4177 (Supp. 1995) is now explicitly set forth in the law - that persons who drove with a sufficient amount of alcohol in their system to raise their alcohol concentration to .10 or more within 4 hours of driving are subject to prosecution but persons whose drinking and driving are unrelated are not. Thus, the Act targets only those persons who are behind the wheel with a sufficient quantity of alcohol in their bodies to raise their alcohol concentrations to .10 or above within 4 hours. In enacting this specific statutory language, the General Assembly again adopts the view of the majority of states with similar laws that it will not "allow drunk drivers -- 'moving time bombs' -- to escape prosecution simply because, at the time of the stop, their [alcohol concentration] had not yet reached the proscribed level" if, before they got behind the wheel, they had consumed enough alcohol to meet or exceed the limit when tested. State v. Tischio, N.J. Supr., 527 A.2d388 (1987). As states such as Arizona, Georgia, Nevada, New Jersey, North Carolina, North Dakota, and Washington have found, it is an admirable goal to keep drivers who have had enough to drink to raise their alcohol concentration to .10 or more (but whose test would not show the prohibited limit yet) away from cars and not encourage a race- perhaps to the death - to their next destination, whether it be home or their next barstool. Therefore, under the applicable provisions of the statute (§4177(a)(5)) the elements of DUI are: (1) driving; and (2) an alcohol concentration of .10 or above within fours hours of driving -- if that reading was the result of alcohol consumption prior to or during driving. By providing the "nexus" element the Delaware courts found to be missing, the language is more specifically targeted at the drivers with a dangerous alcohol content. The language permits one to gauge one's drinking appropriately. With the wealth of public information available regarding alcohol consumption and driving, a driver can predetermine his or her limit much more easily than any expert can attempt to retroactively extrapolate that person's alcohol concentration using a test administered some time after the person was caught driving. This dichotomy is based on the driver's ready accessibility to resources such as widely-reported public health information, resources of state agencies (e.g. the Office of Highway Safety) or even the Internet (e.g. www.intox.com/Drink_Wheel.html). However, an expert attempting to relate test taken after driving back to determine the specific alcohol concentration when the person was behind the wheel is greatly hindered as the source of that information is the driver being prosecuted - who has no incentive give truthful information and a constitutional right to refuse to give any. The Act addresses the goals of effective DUI enforcement and the concerns of the Delaware courts by: (1) making a technical change to the catch line; (2) re-enacting the "four-hour" provision with specific "nexus" elements which link alcohol content and driving; (3) re-writing the defense of drinking after driving to make such a simple defense without the preponderance of evidence burden imposed upon a defendant but with notice guidelines to insure effective preparation of DUI cases.

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Takes effect upon being signed into law

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